AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 31, 1999
REGISTRATION NO. 333-84931
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BORG-WARNER AUTOMOTIVE, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 13-3404508
(State or other (I.R.S. Employer
jurisdiction of Identification
incorporation or Number)
organization)
200 SOUTH MICHIGAN AVENUE
CHICAGO, ILLINOIS 60604
(312) 322-8500
(Address, including zip code, and
telephone number, including
area code, of registrant's
principal executive offices)
------------------------
LAURENE H. HORISZNY, ESQ.
VICE PRESIDENT, SECRETARY AND
GENERAL COUNSEL
BORG-WARNER AUTOMOTIVE, INC.
200 SOUTH MICHIGAN AVENUE
CHICAGO, ILLINOIS 60604
(312) 322-8500
(Name, address, including zip code,
and telephone
number, including area code, of
agent for service)
COPIES TO:
DAVID A. KATZ, ESQ. DANIELLE CARBONE, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ SHEARMAN & STERLING
51 WEST 52ND STREET 599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10019 NEW YORK, NEW YORK 10022
(212) 403-1000 (212) 848-4000
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
<PAGE>
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. [ ]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING AGGREGATE REGISTRATION
REGISTERED (1) (2) PRICE PER OFFERING FEE
UNIT (3) PRICE (3)
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Debt Securities......... $350,000,000 $97,300(4)
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Common Stock, par value
$.01 per share (5)....
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Total................... $350,000,000 $97,300(4)
================================================================================
(1)Any securities registered hereunder may be sold separately, together or as
units with other securities registered hereunder.
(2)If any Debt Securities are issued at an original issue discount, the amount
to be registered shall result in an aggregate offering price to the public
which shall not exceed the amount set forth under Proposed Maximum Aggregate
Offering Price, or if Debt Securities are issued in a foreign or composite
currency, an equivalent amount of such foreign or composite currency.
(3)Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(4)Previously paid upon initial filing of Registration Statement on August 11,
1999.
(5)Shares of Common Stock registered hereunder are issuable solely upon
conversion or exchange of Debt Securities registered hereunder and will not
be separately sold or issued. Attached to the Common Stock are preferred
share purchase rights that will not be exercisable prior to the occurrence of
certain events.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 31, 1999
PROSPECTUS
[Borg-Warner Automotive Logo]
BORG-WARNER AUTOMOTIVE, INC.
$350,000,000
DEBT SECURITIES
We may offer from time to time unsecured debt securities in the form of
either senior or subordinated debt. Senior debt includes our notes, debt and
other evidences of unsecured indebtedness, which are for money borrowed and are
not subordinated. Subordinated debt, designated at the time it is issued, is
entitled to interest and principal payments after the senior debt payments.
The specific terms of these securities will be provided in supplements to
this prospectus. You should read this prospectus and the supplements carefully
before you invest.
FOR INFORMATION CONCERNING CERTAIN FACTORS THAT YOU SHOULD CONSIDER, SEE
"RISK FACTORS" COMMENCING ON PAGE 6.
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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.
THE DATE OF THIS PROSPECTUS IS SEPTEMBER __, 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this process, we may sell any combination of the securities described in
this prospectus in one or more offerings up to a total dollar amount of
$350,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we offer to sell securities, we will provide
a supplement to this prospectus that will contain specific information about the
terms of that particular offering. The prospectus supplement may also add,
update, or change information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
To find more detail regarding certain of the documents, you should read the
exhibits filed with this registration statement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the Public
Reference Rooms. Our filings with the SEC are also available to the public on
the SEC's Internet web site at http://www.sec.gov. Our common stock is listed on
the New York Stock Exchange and information about us is also available at the
NYSE's offices.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to other documents we file with the SEC. The information
incorporated by reference is considered to be part of this prospectus, and
information that we file with the SEC later will automatically update and
supersede this information. We incorporate by reference our documents listed
below and any future filings made by us with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, until we
sell all of the securities offered in this prospectus.
* Annual Report on Form 10-K for the year ended December 31, 1998, as
amended by the Form 10-K/A filed with the SEC on June 22, 1999;
* Proxy Statement dated March 26, 1999 (other than the sections entitled
"Compensation Committee Report on Executive Compensation" and
"Performance Graph");
* Quarterly Reports on Form 10-Q for the quarters ended March 31 and
June 30, 1999; and
* Current Reports on Form 8-K dated January 27, 1999, February 1,
1999 (as amended by the Form 8-K/A filed with the SEC on February 10,
1999), February 9, 1999, February 18, 1999, February 24, 1999, March 1,
1999, March 15, 1999 and August 16, 1999.
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You may request a copy of these filings, at no cost, by writing or
telephoning us at:
Borg-Warner Automotive, Inc.
200 South Michigan Avenue
Chicago, Illinois 60604
Attn: Investor Relations and Communications Department
Telephone (312) 322-8607
or (312) 322-8547
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different or additional information. You should
not assume that the information in this prospectus or any supplement is accurate
as of any date other than the date on the front of this prospectus or the
prospectus supplement.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained or incorporated by reference in this
prospectus are "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. These forward-looking statements are
subject to risks, uncertainties and other factors which could cause actual
results to differ materially from future results expressed, implied or projected
by such forward-looking statements. The most significant of these risks,
uncertainties and other factors are discussed under the heading "Risk Factors,"
beginning on page 5 of this prospectus, and you are urged to carefully consider
such factors. Additional risks and uncertainties are detailed in our filings
with the SEC, including the Cautionary Statements filed as Exhibit 99.1 to our
1998 Annual Report. We do not have any obligation to update forward-looking
statements and we may or may not do so.
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THE COMPANY
We are a leader in highly engineered systems and components for vehicle
powertrains. As a global supplier, we design, manufacture and sell these
products worldwide, primarily to original equipment manufacturers of passenger
cars, sport-utility vehicles, light and heavy-duty trucks and commercial
vehicles. We have four reportable operating segments: Powertrain Systems,
Automatic Transmission Systems, Morse TEC and Air/Fluid Systems.
* Powertrain Systems. Powertrain Systems accounted for $518.8 million (28%)
of our 1998 consolidated sales before inter-business eliminations. Its
products include four-wheel drive ("4WD") and all-wheel drive transfer
cases. Transfer cases are installed primarily on light trucks and
sport-utility vehicles. A transfer case attaches to the transmission and
distributes torque to the front and rear axles for 4WD, improving vehicle
control during off-road use and in a variety of road conditions. We believe
that we are the world's leading independent manufacturer of 4WD transfer
cases, producing approximately one million transfer cases in 1998.
Our largest customer of 4WD transfer cases is Ford Motor Company. We supply
the majority of the 4WD transfer cases for Ford, including those installed
in the Ford Explorer, the Ford Expedition, the Ford F-150 pick-up truck,
the Ford Ranger, the Mercury Mountaineer and the Lincoln Navigator. We also
supply transfer cases for the Mercedes-Benz M-Class and other 4WD vehicles
manufactured by other original equipment manufacturers around the world. We
have designed and developed an exclusive 4WD Torque-on-Demand(R) transfer
case system, which allows vehicles to automatically shift from two-wheel
drive to 4WD when electronic sensors indicate it is necessary. The
Torque-on-Demand(R) transfer case is available on the Ford Explorer, the
best selling sport-utility vehicle in the United States in 1997 and 1998,
the Ford Expedition, the Lincoln Navigator, the Isuzu Trooper and the
SsangYong (Daewoo) Musso.
* Automatic Transmission Systems. Automatic Transmission Systems accounted
for $402.6 million (21%) of our consolidated 1998 sales before
inter-business eliminations. It is the leading global supplier of
innovative automated transmission shift-quality systems. The components for
such systems include friction plates, clutch packs, one-way clutches,
transmission bands, and races. We supply virtually every major automatic
transmission manufacturer in the world.
* Morse TEC. Morse TEC accounted for $536.2 million (28%) of our consolidated
1998 sales before inter-business eliminations. It manufactures chain,
including timing chain, HY-VO front-wheel drive ("FWD") transmission chain
and 4WD chain; chain systems, including Morse Gemini Chain Systems, and
timing chain systems, including crankshaft and camshaft sprockets, chain
tensioners and chain snubbers; turbochargers; and cooling fan and fan
drives.
HY-VO chain is used in FWD transmissions and for 4WD transfer case
applications. We believe that we are the world's leading manufacturer of
chain for these applications, supplying products to every major
manufacturer that uses chain for such applications. Our Morse Gemini Chain
System is used on DaimlerChrysler's LH model and GM's midsize and FWD
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vehicles. We also believe that we are the world's leading manufacturer of
timing chain. Our timing chain is used on Ford's new family of overhead cam
engines and DaimlerChrysler's 2.7, 3.7 and 4.7 liter overhead cam engines.
We supply turbochargers to European diesel and spark engine manufacturers
for use in the passenger car and commercial vehicle markets. On March 1,
1999, we purchased Kuhlman Corporation, a leading producer of turbochargers
for commercial vehicles and cooling fan and fan drives for commercial
vehicles and light trucks. With the acquisition of Kuhlman, we believe that
we are the second largest global supplier of turbochargers.
* Air/Fluid Systems. Air/Fluid Systems accounted for $351.4 million (19%) of
our consolidated 1998 sales before inter-business eliminations. It designs
and manufactures sophisticated mechanical, electro-mechanical and
electronic components and systems used for engine air intake and exhaust
management, fuel and vapor management, electronically controlled automatic
transmissions and steering and suspension systems. Key products for engine
air intake management that we produce include throttle bodies, intake
manifolds, throttle position sensors, and complete engine induction
systems. Our products for emissions control and improved gas mileage
include mechanical and electrical air pumps, air control valves and
pressure feedback exhaust gas re-circulation valves. The fuel management
and vapor recovery products include roll valves, canister purge solenoids
and complete vapor recovery systems. We also produce oil pumps for
automotive applications and fuel tanks for commercial vehicles.
Our executive offices are located at 200 South Michigan Avenue, Chicago,
Illinois 60604, telephone (312) 322-8500.
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RISK FACTORS
You should carefully consider the following factors, as well as the other
information in this prospectus and the information in the documents incorporated
by reference, before you make any decision to invest in the debt securities
described in this prospectus and the accompanying prospectus supplement.
BECAUSE OF OUR HOLDING COMPANY STRUCTURE THE DEBT SECURITIES WILL BE
SUBORDINATED TO OUR SUBSIDIARIES' LIABILITIES
We are a holding company with no material assets other than the stock of
our subsidiaries. Our subsidiaries conduct substantially all of our operations
and own substantially all of our assets. Consequently, our operating cash flow
and our ability to make principal and interest payments on our outstanding
indebtedness depends upon the cash flow of our subsidiaries and the payment of
funds by our subsidiaries to us in the form of loans, dividends or otherwise.
Our subsidiaries are not obligated to make funds available to us for payment on
the debt securities or otherwise.
The debt securities effectively will rank junior to all liabilities of our
subsidiaries. In the event of a bankruptcy, liquidation or dissolution of any of
our subsidiaries, and following payment of these liabilities, our subsidiaries
may not have sufficient assets remaining to make payments to us as a shareholder
or otherwise.
As of June 30, 1999, total liabilities (other than intercompany
liabilities) of our subsidiaries were approximately $467.8 million excluding
debt of our subsidiaries totaling approximately $135.1 million.
OUR INDUSTRY IS CYCLICAL AND OUR RESULTS OF OPERATIONS WILL BE ADVERSELY
AFFECTED BY INDUSTRY DOWNTURNS
Automotive and truck production and sales are cyclical and sensitive to
general economic conditions and other factors. For example, as compared to the
first half of 1998, automotive and truck production in the first half of 1999
increased in North America and Europe and increased slightly in Asia. As
compared to 1997, automotive production in 1998 remained at the same level in
North America, increased moderately in Europe, and declined in Asia. Any
significant reduction in automotive or truck production in any of the above
geographic areas would have a material adverse effect on our sales to original
equipment manufacturers and our financial position and operating results. In
1998 approximately 14% of our sales, including sales from unconsolidated joint
ventures, were in Asia and our 1998 results were adversely affected by the
decline in Asian auto production.
WE ARE DEPENDENT ON SPORT UTILITY AND LIGHT TRUCK MARKET SEGMENTS
Some of our products, in particular four-wheel drive transfer cases, are
currently used exclusively in four-wheel drive systems for sport utility
vehicles and light trucks. For the second quarter of 1999, sales of four-wheel
drive transfer cases represented 20.6% of our consolidated
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revenue. Any significant reduction in production in this market segment or loss
of business in this market segment would have a material adverse effect on our
sales to original equipment manufacturers and our financial position and
operating results.
WE FACE STRONG COMPETITION
We compete worldwide with a number of other manufacturers and distributors
that produce and sell products similar to ours. Price, quality and technological
innovation are the primary elements of competition. Our competitors include
vertically integrated units of our major original equipment manufacturer
customers, as well as a large number of independent domestic and international
suppliers. We are not as large as a number of these companies and do not have as
many financial or other resources. The competitive environment has changed
dramatically over the past few years as our traditional United States original
equipment manufacturer customers, faced with intense international competition,
have expanded their worldwide sourcing of components. As a result, we have
experienced competition from suppliers in other parts of the world that enjoy
economic advantages, such as lower labor costs, lower health care costs and, in
some cases, export or raw materials subsidies. Increased competition could
adversely affect our businesses.
WE ARE UNDER SUBSTANTIAL PRESSURE FROM ORIGINAL EQUIPMENT MANUFACTURERS TO
REDUCE THE PRICES OF OUR PRODUCTS
There is substantial and continuing pressure on the original equipment
manufacturers to reduce costs, including costs of products we supply. Although
original equipment manufacturers have indicated that they will continue to rely
on outside suppliers, a number of our major original equipment manufacturer
customers manufacture products for their own uses that directly compete with our
products. These original equipment manufacturers could elect to manufacture such
products for their own uses in place of the products we currently supply. We
believe that our ability to develop proprietary new products and to control our
costs will allow us to remain competitive. However, we cannot assure you that we
will be able to improve or maintain our gross margins on product sales to
original equipment manufacturers or that the recent trend by original equipment
manufacturers towards increased outsourcing will continue.
Annual price reductions to original equipment manufacturer customers appear
to have become a permanent feature of our business environment. In 1998,
Borg-Warner Automotive granted $23 million worth of price reductions as compared
to $18 million in 1997. To maintain our profit margins, we seek price reductions
from our suppliers, improve production processes to increase manufacturing
efficiency, update product designs to reduce costs and develop new products
whose benefits support increased pricing. Our ability to pass through increased
raw material costs to our original equipment manufacturer customers is also
limited, with cost recovery less than 100% and often on a delayed basis. We
cannot assure you that we will be able to reduce costs in an amount equal to
annual price reductions and increases in raw material costs.
WE RELY ON SALES TO SEVERAL MAJOR CUSTOMERS
Our worldwide sales in 1998 to Ford, DaimlerChrysler and GM constituted
approximately 36%, 19% and 16%, respectively, of our 1998 consolidated sales.
The corresponding
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percentages for 1997 were 43%, 14% and 20%. No other customer accounted for more
than 10% of our consolidated sales in either 1998 or 1997. Our 1998 consolidated
sales do not include the approximately $246 million of sales made by our
unconsolidated joint ventures. If sales from these unconsolidated joint ventures
were included in 1998 consolidated sales, our worldwide sales to Toyota Motor
Corporation and its affiliates would be approximately 7% of consolidated sales.
Although we have had long-standing relationships with each of Ford,
DaimlerChrysler, GM and Toyota and have sold a wide variety of products to
various divisions of each company globally, the loss of any significant portion
of our sales to any of these customers would have a material adverse effect on
our financial position and operating results.
WE ARE SENSITIVE TO THE EFFECTS OF OUR MAJOR CUSTOMERS' LABOR RELATIONS
All three of our primary North American customers, Ford, DaimlerChrysler
and GM, have major union contracts with the United Automobile, Aerospace and
Agricultural Implement Workers of America, several of which are due to expire in
September 1999. Because of the United States original equipment manufacturers'
dependence on a single union, we are affected by labor difficulties and work
stoppages at original equipment manufacturers' facilities. We cannot assure you
that negotiations for new collective bargaining agreements will be resolved
without work stoppages in the North American operations of our original
equipment manufacturer customers. Any work stoppage could have a material
adverse effect on our financial position and operating results. For example, we
lost approximately $25 million in revenue as result of the 1998 54-day strike by
the union at GM.
A SIGNIFICANT PART OF OUR LABOR FORCE IS UNIONIZED
As of June 30, 1999, approximately 34% of our domestic hourly employees
were unionized. Our two most significant domestic collective bargaining
agreements are for our Muncie, Indiana plant and our Ithaca, New York plant. The
Muncie agreement expires in March 2001 and the Ithaca agreement expires in
October 2003. The hourly workers at our European facilities are also unionized.
While we believe that our relations with our employees are good, a prolonged
dispute with our employees could have a material adverse effect on our financial
position and operating results.
WE ARE SUBJECT TO EXTENSIVE ENVIRONMENTAL REGULATIONS
Our operations are subject to laws governing, among other things, emissions
to air, discharges to waters and the generation, handling, storage,
transportation, treatment and disposal of waste and other materials. We believe
that our business, operations and activities have been and are being operated in
compliance in all material respects with applicable environmental and health and
safety laws. However, the operation of automotive parts manufacturing plants
entails risks in these areas and we cannot assure you that we will not incur
material costs or liabilities. In addition, potentially significant expenditures
could be required in order to comply with evolving environmental and health and
safety laws that may be adopted in the future.
We believe that the overall impact of compliance with regulations and
legislation protecting the environment will not have a material adverse effect
on our future financial position or
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operating results, but we cannot assure you that this will be the case. Capital
expenditures and expenses in 1998 attributable to compliance with environmental
laws were not material.
WE MAY HAVE LIABILITY UNDER ENVIRONMENTAL REGULATIONS
We and certain of our current and former direct and indirect corporate
predecessors, subsidiaries and divisions have been identified by the United
States Environmental Protection Agency and certain state environmental agencies
and private parties as potentially responsible parties at various hazardous
waste disposal sites under the Comprehensive Environmental Response,
Compensation and Liability Act and equivalent state laws. As a result, we may be
liable for the cost of clean-up and other remedial activities at 42 of these
sites.
Based on information available to us, we have established a reserve in our
financial statements for indicated environmental liabilities with a balance of
approximately $12.4 million at June 30, 1999. We currently expect this amount to
be expended over the next three to five years.
We believe that none of these matters, individually or in the aggregate,
will have a material adverse effect on our future financial position or
operating results, either because estimates of the maximum potential liability
at a site are not large or because liability will be shared with other
potentially responsible parties. However, we cannot assure you of the ultimate
outcome.
OUR BUSINESS COULD BE ADVERSELY IMPACTED BY YEAR 2000 COMPLIANCE ISSUES
We are in the process of upgrading certain aspects of our operations to
ensure that our business systems do not fail to function either when the Year
2000 arrives or at other date intervals. Our program to become Year 2000
compliant is being operated on an enterprise-wide basis. A coordinator has been
assigned overall administrative responsibility; however, each operating unit is
responsible for compliance at its location. As of June 30, 1999 substantially
all of our operations had completed remedial actions to become Year 2000
compliant or are expected to be compliant by September 1999. Our exposure to an
enterprise-wide failure is less likely because of the relative autonomy of our
operating units. We have received confirmation from key suppliers and other
third parties that their systems and applications that affect us will be Year
2000 compliant.
As with any program to upgrade business systems, there are risks that
programs will not be completed on schedule and that programs will not accomplish
all that they were supposed to accomplish. The chance of this happening
throughout our company is remote. Moreover, the impact of individual failures to
upgrade timely and effectively would most likely be a reduced level of quality
control for the affected operations and a substantial increase in manual
intervention in areas such as material planning and inventory control,
statistical process control, and financial and operational recordkeeping.
We cannot assure you that the corrective actions we are implementing will
prevent dating-systems problems or that the cost of doing so will not be
material. In addition, disruptions with respect to the computer systems of
vendors or customers, including both information technology and non-IT systems
could impair our ability to obtain necessary materials or products to
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sell to or serve our customers and could have a material adverse effect on our
financial position or operating results.
YOU SHOULD REFER TO THE DISCUSSION ABOVE UNDER THE HEADING "SPECIAL NOTE
REGARDING FORWARD-LOOKING STATEMENTS."
USE OF PROCEEDS
Unless otherwise set forth in the applicable prospectus supplement, the
net proceeds from the sale of the debt securities will be used for general
corporate purposes, including the repayment of existing indebtedness, additions
to working capital, capital expenditures and acquisitions. Any specific
allocation of the net proceeds of an offering of debt securities to a specific
purpose will be described in the related prospectus supplement. We anticipate
that we will raise additional funds from time to time through equity or debt
financings to repay outstanding indebtedness and to finance our businesses.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for the periods indicated below was
as follows:
Six Months Ended
Year Ended December 31, June 30,
----------------------- --------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ---- ----
7.9x 7.0x 3.1x 6.2x 5.3x 5.2x 5.6x
In the computation of our ratio of earnings to fixed charges, earnings
consist of earnings before income taxes, fixed charges and capitalized interest
amortization expense. Fixed charges consist of interest expense excluding the
benefit of capitalized interest and including one-third of rental expense
(approximate portion representing interest).
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DESCRIPTION OF DEBT SECURITIES
The following descriptions of the terms of the debt securities set forth
certain general terms and provisions of the debt securities. 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 offered debt securities. To the extent that any prospectus supplement is
inconsistent with any provision in this summary, the information contained in
such prospectus supplement will control.
The debt securities that will be our senior debt will be issued under an
Indenture (the "SENIOR DEBT INDENTURE") to be entered into between Borg-Warner
Automotive and a trustee to be determined (the "SENIOR TRUSTEE"). The debt
securities that will be our subordinated debt ("SUBORDINATED DEBT SECURITIES")
will be issued under an Indenture (the "SUBORDINATED DEBT INDENTURE" and,
collectively with the Senior Debt Indenture, the "INDENTURES"), to be entered
into between Borg-Warner Automotive and a trustee to be determined (the
"SUBORDINATED TRUSTEE"). The forms of the Indentures and the debt securities
have been filed, or will be filed by amendment, as exhibits to the registration
statement and you should read them for the provisions that may be important to
you. The Indentures are subject to and governed by the Trust Indenture Act of
1939, as amended (the "TIA"). We have summarized certain provisions of the debt
securities and the Indentures below. The summary is not complete and is subject
to, and qualified in its entirety by reference to, the Indentures and the debt
securities. Capitalized terms used in the summary have the meanings set forth in
the applicable Indenture unless otherwise defined herein.
GENERAL
The debt securities will be our unsecured senior or subordinated
obligations.
The Indentures do not limit the amount of debt securities that we may issue
thereunder and provide that we may issue debt securities under the Indentures
from time to time in one or more series.
Reference is made to the prospectus supplement for the following terms of
and information relating to the offered debt securities (to the extent such
terms are applicable to such debt securities):
* classification as senior or subordinated debt securities;
* the specific designation, aggregate principal amount, purchase price
and denomination of the offered debt securities;
* the currency or units based on or relating to currencies in which such
debt securities are denominated and/or in which principal (and
premium, if any) and/or any interest will or may be payable;
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* any date of maturity;
* the method by which amounts payable in respect of principal, premium
(if any) or interest on, or upon the redemption of, such debt
securities may be calculated, and any currencies or indices, or value,
rate or price, relevant to such calculation;
* interest rate or rates (or the method by which such rate will be
determined), if any;
* the date or dates on which any such interest will be payable;
* the place or places where the principal of and interest, if any, on
the offered debt securities will be payable;
* any redemption, repayment or sinking fund provisions for the offered
debt securities;
* whether the offered debt securities will be issuable in registered
form or bearer form ("BEARER SECURITIES") or both and, if Bearer
Securities are issuable, any restrictions applicable to the exchange
of one form for another and to the offer, sale and delivery of Bearer
Securities;
* any applicable United States federal income tax consequences not
described in this prospectus, including whether and under what
circumstances we will pay additional amounts on offered debt
securities held by a person who is not a U.S. person (as defined in
the prospectus supplement) in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether we will
have the option to redeem such debt securities rather than pay such
additional amounts;
* the anticipated market for the offered debt securities; and
* any other specific terms of the offered debt securities, including any
additional or different events of default, remedies or covenants
provided for with respect to such debt securities, and any terms which
may be required by or advisable under applicable laws or regulations.
Debt securities may be presented for exchange and registered debt
securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the debt securities and the prospectus
supplement. Such services will be provided without charge, other than any tax or
other governmental charge payable in connection therewith, but subject to the
limitations provided in the applicable Indenture. Bearer Securities and the
coupons, if any, attached to such Bearer Securities will be transferable by
delivery.
Debt securities may bear interest at a fixed rate or a floating rate. Debt
securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted debt securities or to certain
debt securities
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issued at par which are treated as having been issued at a discount for United
States federal income tax purposes will be described in the relevant prospectus
supplement to the extent not described in this prospectus. See "Certain U.S.
Federal Income Tax Considerations."
We may issue debt securities from time to time with payment terms which are
calculated by reference to the value or price of one or more currencies or
indices. Holders of such debt securities may receive a payment of the principal
amount on any principal payment date, or a payment of interest on any interest
payment date, that is greater than or less than the amount of principal or
interest otherwise payable on such dates, or a redemption amount on any
redemption date that is greater than or less than the principal amount of such
debt securities, depending upon the value or price on such dates of the
applicable currency or index. Information for determining the amount of
principal, premium (if any), interest or redemption amounts payable on any date,
the currencies, commodities or indices to which the amount payable on such date
is linked and certain additional tax considerations will be set forth in the
relevant prospectus supplement.
We are a holding company with no material assets other than the stock of
our subsidiaries. Our subsidiaries conduct substantially all of our operations
and own substantially all of our assets. Consequently, our operating cash flow
and our ability to make principal and interest payments on our outstanding
indebtedness depends upon the cash flow of our subsidiaries and the payment of
funds by our subsidiaries to us in the form of loans, dividends or otherwise.
Our subsidiaries are not obligated to make funds available to us for payment on
the debt securities or otherwise.
The debt securities effectively will rank junior to all liabilities of our
subsidiaries. In the event of a bankruptcy, liquidation or dissolution of any of
our subsidiaries, and following payment of these liabilities, our subsidiaries
may not have sufficient assets remaining to make payments to us as a shareholder
or otherwise.
CERTAIN DEFINITIONS
"ATTRIBUTABLE INDEBTEDNESS" means, with respect to any Sale/Leaseback
Transaction as of any particular time, the present value (discounted at the rate
of interest implicit in the terms of the lease) of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease
(including any period for which such lease has been extended). "NET RENTAL
PAYMENTS" under any lease for any period means the sum of the rental and other
payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments or similar charges.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (1) all current liabilities (excluding any current liabilities which
are by their terms extendible or renewable at the option of the obligor thereon
to a time more than 12 months after the time as of which the amount thereof is
being computed), (2) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles and (3) appropriate
adjustments on account of minority interests of other Persons holding stock of
our Subsidiaries, all as set forth on our most
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recent balance sheet (but, in any event, as of a date within 150 days of the
date of determination) and computed in accordance with generally accepted
accounting principles.
"CONSOLIDATED NET WORTH" means the amount of total stockholders' equity
shown in our most recent consolidated statement of financial position.
"CURRENT ASSETS" of any Person includes all assets of such Person that
would in accordance with generally accepted accounting principles be classified
as current assets.
"CURRENT LIABILITIES" of any Person includes all liabilities of such Person
that would in accordance with generally accepted accounting principles be
classified as current liabilities.
"NON-RECOURSE INDEBTEDNESS" means our indebtedness or the indebtedness of
any of our Subsidiaries in respect of which the recourse of the holder of such
indebtedness, whether direct or indirect and whether contingent or otherwise, is
effectively limited to specified assets, and with respect to which neither we
nor any of our Subsidiaries provide any credit support.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL PROPERTY" means any manufacturing plant or warehouse, together
with the land upon which it is erected and fixtures comprising a part thereof,
that we own or that is owned by one of our Subsidiaries which constitutes a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and is located
in the United States, the gross book value (without deduction of any reserve for
depreciation) of which on the date as of which the determination is being made
is an amount which exceeds 1% of Consolidated Net Tangible Assets, other than
any such manufacturing plant or warehouse or any portion thereof (together with
the land upon which it is erected and fixtures comprising a part thereof) (1)
which is financed by Industrial Development Bonds or (2) which, in the opinion
of our board of directors, is not of material importance to our total business
conducted and the total business conducted by our Subsidiaries, taken as a
whole.
"SALE/LEASEBACK TRANSACTION" means any arrangement with any Person pursuant
to which we or any of our Subsidiaries lease for a period of more than three
years, any real or personal property, which property we have or such Subsidiary
has sold or transferred or will sell or transfer to such Person in contemplation
of such leasing.
"SUBSIDIARY" of a Person means (1) any corporation more than 50% of the
outstanding securities having ordinary voting power of which is owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, or (2) any partnership or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned. For the purposes of this
definition, "SECURITIES HAVING ORDINARY VOTING POWER" means securities or other
equity interests that ordinarily have voting power for the election of
directors, or persons having management
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power with respect to the Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
SENIOR DEBT
The debt securities and coupons, if any, appertaining thereto that will
constitute part of our senior debt will be issued under the Senior Debt
Indenture and will rank pari passu with all of our other unsecured and
unsubordinated debt.
Limitation on Liens
The Senior Debt Indenture provides that we will not, and will not permit
any of our Subsidiaries to, issue, assume or guarantee any indebtedness for
money borrowed ("DEBT") if such Debt is secured by a mortgage, pledge, security
interest or lien (a "MORTGAGE" or "MORTGAGES") upon any of our Principal
Properties or of any of our Subsidiaries' Principal Properties or upon any
shares of stock or other stock or other equity interest or indebtedness of any
of our Subsidiaries (whether such property, shares of stock or other equity
interest or indebtedness is now owned or hereafter acquired) which owns any
Principal Property, without in any such case effectively providing that the debt
securities shall be secured equally and ratably with (or prior to) such Debt;
provided, however, that the foregoing restrictions shall not apply to:
* mortgages existing on the date the debt securities are originally
issued or mortgages provided for under the terms of agreements
existing on such date;
* mortgages on Current Assets securing Current Liabilities;
* mortgages on any property we or any of our Subsidiaries acquire,
construct, alter or improve after the date of the Indenture that are
created or assumed contemporaneously with or within one year after
such acquisition (or, in the case of property constructed, altered or
improved, after the completion and commencement of commercial
operation of such property, whichever is later) to secure or provide
for the payment of the purchase price or cost of such property,
provided that in the case of any such construction, alteration or
improvement the mortgages shall not apply to any property we or any of
our Subsidiaries theretofore owned, other than (1) the property so
altered or improved and (2) any theretofore unimproved real property
on which the property so constructed or altered, or the improvement,
is located;
* existing mortgages on property we or any of our Subsidiaries acquire
(including mortgages on any property acquired from a Person that is
consolidated with or merged with or into us or any of our
Subsidiaries) or mortgages outstanding at the time any Person becomes
one of our Subsidiaries that are not incurred in connection with such
entity becoming one of our Subsidiaries;
* mortgages in our or any of our Subsidiaries' favor;
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* mortgages on any property (1) in favor of domestic or foreign
governmental bodies to secure partial, progress, advance or other
payments pursuant to any contract or statute, (2) securing
indebtedness incurred to finance all or any part of the purchase price
or cost of constructing, installing or improving the property subject
to such mortgages including mortgages to secure Debt of the pollution
control or industrial revenue bond type, or (3) securing indebtedness
issued or guaranteed by the United States, any State, any foreign
country or any department, agency, instrumentality or political
subdivision of any such jurisdiction; and
* any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage
referred to in the foregoing bullet points; provided, however, that
the principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such extension,
renewal or replacement, together with the reasonable costs related to
such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the
property that secured the mortgage so extended, renewed or replaced
(plus improvements on such property).
Notwithstanding the foregoing, we and any of our Subsidiaries may, without
securing the debt securities, issue, assume or guarantee secured Debt (that
would otherwise be subject to the foregoing restrictions) in an aggregate amount
that, together with all other such secured Debt and the aggregate amount of our
and our Subsidiaries' Attributable Indebtedness deemed to be outstanding in
respect of all Sale/Leaseback Transactions entered into pursuant to the
provisions described below under "-- Limitation on Sale/Leaseback Transactions"
(excluding any such Sale/Leaseback Transactions the proceeds of which have been
applied in accordance with clauses (2) or (3) under the "-- Limitation on
Sale/Leaseback Transactions" covenant described below), does not exceed 10% of
the Consolidated Net Worth, as shown on a consolidated balance sheet as of a
date not more than 90 days prior to the proposed transaction we prepare in
accordance with generally accepted accounting principles.
Limitation on Sale/Leaseback Transactions
The Senior Debt Indenture provides that we will not, and will not permit
any of our Subsidiaries to, enter into any Sale/Leaseback Transaction with any
Person (other than ourself or one of our Subsidiaries) unless:
(1) at the time of entering into such Sale/Leaseback Transaction, we
or such Subsidiary would be entitled to incur Debt, in a principal amount
equal to the Attributable Indebtedness with respect to such Sale/Leaseback
Transaction, secured by a mortgage on the property subject to such
Sale/Leaseback Transaction, pursuant to the provisions of the covenant
described under "-- Limitation on Liens" without equally and ratably
securing the debt securities pursuant to such provisions;
(2) after the date on which debt securities are first issued, and
within a period commencing six months prior to the consummation of such
Sale/Leaseback Transaction
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and ending six months after the consummation thereof, we or such Subsidiary
shall have expended for property used or to be used in our or such
Subsidiary's ordinary course of business (including amounts expended for
additions, expansions, alterations, repairs and improvements thereto) an
amount equal to all or a portion of the net proceeds of such Sale/Leaseback
Transaction, and we shall have elected to designate such amount as a credit
against such Sale/Leaseback Transaction (with any such amount not being so
designated to be applied as set forth in clause (3) below); or
(3) during the 12-month period after the effective date of such
Sale/Leaseback Transaction, we shall have applied to the voluntary
defeasance or retirement of debt securities or any of our pari passu
indebtedness an amount equal to the net proceeds of the sale or transfer of
the property leased in such Sale/Leaseback Transaction, which amount shall
not be less than the fair value of such property at the time of entering
into such Sale/Leaseback Transaction (adjusted to reflect any amount we
expended as set forth in clause (2) above), less an amount equal to the
principal amount of such debt securities and pari passu indebtedness we
voluntarily defeased or retired within such 12-month period and not
designated as a credit against any other Sale/Leaseback Transaction we or
any of our Subsidiaries entered into during such period.
Unless otherwise specified in the prospectus supplement relating to a
particular series of offered debt securities, the covenants applicable to the
debt securities would not necessarily afford holders protection in the event
that we are involved in a highly leveraged or other transaction, or in the event
of a material adverse change in our financial position or results of operations.
Unless otherwise specified in the prospectus supplement relating to a particular
series of offered debt securities, the debt securities do not contain any other
provisions that are designed to afford protection in the event that we are
involved in a highly leveraged transaction.
SUBORDINATED DEBT
The debt securities and coupons, if any, attached to such debt securities
that will constitute part of the Subordinated Debt Securities will be issued
under the Subordinated Debt Indenture and will be subordinate and junior in
right of payment, to the extent and in the manner set forth in the Subordinated
Debt Indenture, to all of our Senior Indebtedness. The Subordinated Debt
Indenture defines "SENIOR INDEBTEDNESS" as all of our indebtedness, including
indebtedness we have guaranteed or assumed, for borrowed money or evidenced by
bonds, debentures, notes, letters of credit, interest rate exchange agreements,
currency exchange agreements, commodity forward contracts or other similar
instruments, or indebtedness or obligations with respect to any lease of real or
personal property whether existing on the date hereof or hereinafter incurred,
and any guarantee, amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligation, provided that Senior
Indebtedness shall not include (1) obligations that, when incurred and without
respect to any election under Section 1111(b) of Title 11, United States Code,
were without recourse to the issuer, (2) our obligations to any of our
Subsidiaries, and (3) any other obligations which by the terms of the instrument
creating or evidencing the same are specifically designated as not being senior
in right of payment to the Subordinated Debt Securities.
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In the event (1) of any insolvency or bankruptcy proceedings, or any
receivership, liquidation or other similar proceedings including reorganization
in respect of Borg-Warner Automotive or a substantial part of our property, or
(2) that (a) a default shall have occurred with respect to the payment of
principal of (and premium, if any) or any interest on or other monetary amounts
due and payable on any Senior Indebtedness or (b) there shall have occurred an
event of default (other than a default in the payment of principal, premium, if
any, or interest, or other monetary amounts due and payable) with respect to any
Senior Indebtedness, as defined therein or in the instrument under which the
same is outstanding, permitting the holder or holders thereof to accelerate the
maturity thereof, and such default or event of default shall not have been cured
or waived or shall not have ceased to exist, unless, in the case of a default
under clause (b) above, the default with respect to the Senior Indebtedness is
cured or waived, or 180 days pass after notice of the default is given to the
holders of Senior Indebtedness (unless the maturity of such Senior Indebtedness
has been accelerated), then the holders of all Senior Indebtedness shall first
be entitled to receive payment of the full amount unpaid thereon, or provision
shall be made, in accordance with the relevant Senior Indebtedness, for such
payment in money or money's worth, before the holders of any of the Subordinated
Debt Securities or coupons are entitled to receive a payment on account of the
principal of (and premium, if any) or any interest on the indebtedness evidenced
by such Subordinated Debt Securities or of such coupons. No new period of
suspension of payments under clause (b) above may be commenced by reason of the
same event of default (or any other event of default that existed or was
continuing on the date of the commencement of such period) within twelve months
after the first such notice relating thereto. Without limitation of the
foregoing, upon any acceleration of the Subordinated Debt Securities because of
an event of default, we must promptly notify the holders of Senior Indebtedness
of such acceleration, and may not pay the Subordinated Debt Securities unless
(A) 120 days pass after such acceleration and (B) the terms of the Subordinated
Debt Indenture permit such payment at such time.
By reason of such subordination, in the event of our bankruptcy, insolvency
or liquidation, our creditors who are holders of Senior Indebtedness and our
general creditors may recover more, ratably, than holders of the Subordinated
Debt Securities. Certain of our contingent obligations, including certain
guarantees, letters of credit, interest rate exchange agreements, currency
exchange agreements and commodity forward contracts, would constitute Senior
Indebtedness if we became obligated to pay such contingent obligations.
We expect from time to time to incur additional indebtedness constituting
Senior Indebtedness. The Subordinated Debt Indenture does not prohibit or limit
the incurrence of additional Senior Indebtedness or any other indebtedness and
does not require us to adhere to financial covenants or similar restrictions. To
the extent we issue Subordinated Debt Securities, we refer you to the applicable
prospectus supplement for the amount of Senior Indebtedness outstanding.
CONVERSION AND EXCHANGE
The terms, if any, on which debt securities of any series will be
convertible into or exchangeable for our common stock or preferred stock,
property or cash, or a combination of any of the foregoing, will be summarized
in the prospectus supplement relating thereto. Such terms
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may include provisions for conversion or exchange, either on a mandatory basis,
at the option of the holder, or at our option, in which case the number of our
shares of common stock or preferred stock to be received by the holders of the
debt securities would be calculated according to the factors and at such time as
summarized in the related prospectus supplement. The prospectus supplement will
also summarize the material federal income tax consequences applicable to such
convertible or exchangeable debt securities to the extent not set forth in this
prospectus.
EVENTS OF DEFAULT
An "EVENT OF DEFAULT" is defined under each Indenture with respect to
debt securities of any series issued under such Indenture as being:
* default in the payment of any interest on any debt security when it
becomes due and payable, and continuance of such default for a period
of 30 days;
* default in the payment of the principal of any debt security at its
maturity
* default in our performance (or our breach) of any of our covenants or
agreements in such Indenture, continued for 90 days after we receive
written notice;
* acceleration of, or any failure to pay at final maturity, any of our
or our Subsidiaries' Debt (other than the debt securities or
Non-Recourse Indebtedness) in an aggregate amount in excess of $25
million if such acceleration is not rescinded or annulled, or such
indebtedness shall not have been discharged, within 15 days after we
receive written notice thereof; and
* certain events of our or of one of our Significant Subsidiaries'
bankruptcy, insolvency or reorganization.
Each Indenture provides that if an Event of Default, other than certain
events with respect to our bankruptcy, insolvency or reorganization, shall occur
and be continuing, then the Senior Trustee or the Subordinated Trustee, as the
case may be, or the holders of not less than 25% in aggregate principal amount
of the outstanding debt securities may, by a notice in writing to us (and to the
Senior Trustee or the Subordinated Trustee, as the case may be, if given by the
holders), declare the principal of the debt securities, and all accrued and
unpaid interest thereon, to be due and payable immediately. If an Event of
Default with respect to certain events of our bankruptcy, insolvency or
reorganization shall occur and be continuing, then the principal on the debt
securities, and all accrued and unpaid interest thereon, shall be due and
payable immediately without any act on the part of the Senior Trustee or the
Subordinated Trustee, as the case may be, or any holder.
The holders of not less than a majority in principal amount of the
outstanding debt securities may, on behalf of the holders of all of the debt
securities, waive any past default under the
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Indenture and its consequences, except a default (1) in respect of the payment
of principal of or interest on the debt securities or (2) in respect of a
covenant or provision that cannot be modified or amended without the consent of
each holder.
Under each Indenture we are required to file annually with the Senior
Trustee or the Subordinated Trustee, as the case may be, an officers'
certificate as to our compliance with all conditions and covenants. Each
Indenture will provide that the Senior Trustee or the Subordinated Trustee, as
the case may be, may withhold notice to the holders of the debt securities of
any default (except payment defaults on the debt securities) if it considers it
to be in the interest of such holders to do so.
Subject to the provisions of each Indenture relating to the duties of the
Senior Trustee or the Subordinated Trustee, as the case may be, each Indenture
provides that when an Event of Default occurs and is continuing, the Senior
Trustee or the Subordinated Trustee, as the case may be, will be under no
obligation to exercise any of its rights or powers under such Indenture at the
request or direction of any of the holders, unless such holders shall have
offered to the Senior Trustee or the Subordinated Trustee, as the case may be,
reasonable security or indemnity. Subject to such provisions concerning the
rights of the Senior Trustee or the Subordinated Trustee, as the case may be,
the holders of a majority in aggregate principal amount of the outstanding debt
securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Senior Trustee or the
Subordinated Trustee, as the case may be, or exercising any trust or power
conferred on the Senior Trustee or the Subordinated Trustee, as the case may be,
under such Indenture.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture provides that we will not consolidate with or merge into any
other corporation, or convey, transfer or lease, or permit one or more of our
Significant Subsidiaries to convey, transfer or lease, all or substantially all
of our property and assets on a consolidated basis, to any Person unless (1)
either we are the continuing corporation or such corporation or Person assumes
by supplemental indenture all of our obligations under such Indenture and the
debt securities issued thereunder, (2) immediately after such transaction no
Default or Event of Default shall exist, and (3) the surviving corporation or
such Person is a corporation, partnership or trust organized and validly
existing under the laws of the United States of America, any state thereof or
the District of Columbia.
MODIFICATION OR WAIVER
Each Indenture provides that we may modify and amend such Indenture, and
the Senior Trustee or the Subordinated Trustee, as the case may be, may modify
and amend such Indenture with the consent of the holders of not less than a
majority in principal amount of the outstanding debt securities; provided that
no such modification or amendment may, without the consent of each holder, among
other things:
* change the maturity of the principal of, or any installment of
interest on, the debt securities;
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* reduce the principal amount of, or the rate of interest on, the debt
securities;
* change the place or currency of payment of principal of, or interest
on, the debt securities;
* impair the right to institute suit for the enforcement of any such
payment on or after the maturity thereof;
* reduce the percentage of holders necessary to modify or amend such
Indenture or to consent to any waiver thereunder or reduce the
requirements for voting or quorum described below; or
* modify the foregoing requirements or reduce the percentage of
outstanding debt securities necessary to waive any past default.
Each Indenture provides that we may modify and amend such Indenture and the
Senior Trustee or the Subordinated Trustee, as the case may be, may modify and
amend such Indenture without the consent of any holder for any of the following
purposes:
* to evidence the succession of another Person to Borg-Warner Automotive
and the assumption by such Person of our covenants contained in such
Indenture and the debt securities;
* to add covenants of Borg-Warner Automotive for the benefit of the
holders or to surrender any right or power conferred upon our company;
* to add Events of Default;
* to secure the debt securities;
* to evidence and provide for the acceptance of appointment by a
successor Senior Trustee or a successor Subordinated Trustee, as the
case may be;
* to cure any ambiguity, defect or inconsistency in such Indenture;
provided such action does not adversely affect the interests of the
holders;
* to supplement any of the provisions of such Indenture to the extent
necessary to permit or facilitate defeasance and discharge of the debt
securities; provided such action shall not adversely affect the
interests of the holders; or
* to conform with the requirements of the TIA.
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DEFEASANCE AND COVENANT DEFEASANCE
We may, at our option and at any time, terminate our obligations with
respect to the outstanding debt securities ("DEFEASANCE"). Defeasance means that
we will be deemed to have paid and discharged the entire indebtedness
represented by the outstanding debt securities, except for (1) the rights of the
holders of outstanding debt securities to receive payment in respect of the
principal of and interest on such debt securities when such payments are due,
(2) our obligations to issue temporary debt securities, register and transfer or
exchange any debt securities, replace mutilated, destroyed, lost or stolen debt
securities, maintain an office or agency for payments in respect of the debt
securities and segregate and hold money in trust, (3) the rights, powers,
trusts, duties and immunities of the Senior Trustee or the Subordinated Trustee,
as the case may be, and (4) the Defeasance provisions of the applicable
Indenture. In addition, we may, at our option and at any time, elect to
terminate our obligations with respect to the debt securities (being primarily
the restrictions described under "-- Limitation on Liens" and "-- Limitation on
Sale/Leaseback Transactions"), and any omission to comply with such obligations
will not constitute a Default or an Event of Default with respect to the debt
securities ("COVENANT DEFEASANCE").
In order to exercise either Defeasance or Covenant Defeasance:
* we must irrevocably deposit with the Senior Trustee or the
Subordinated Trustee, as the case may be, in trust, for the benefit of
the holders, cash in United States dollars, U.S. Government
Obligations, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of and interest
on the outstanding debt securities to maturity;
* we must deliver to the Senior Trustee or the Subordinated Trustee, as
the case may be, an opinion of counsel to the effect that the holders
of the outstanding debt securities will not recognize income, gain or
loss for federal income tax purposes as a result of such Defeasance or
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 Defeasance or Covenant Defeasance had not
occurred (in the case of Defeasance, such opinion must refer to and be
based upon a ruling of the Internal Revenue Service issued, or a
change in applicable federal income tax laws occurring, after the date
hereof);
* no Default or Event of Default shall have occurred and be continuing
on the date of such deposit or,` insofar as the last bullet point
under the first paragraph under "-- Events of Default" is concerned,
at any time during the period ending the 91st day after the date of
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
* such Defeasance or Covenant Defeasance shall not cause the Senior
Trustee or the Subordinated Trustee, as the case may be, to have a
conflicting interest (as defined by the TIA) with respect to any of
our securities;
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* such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, the applicable Indenture
or any material agreement or instrument to which we are a party or by
which we are bound; and
* we shall have delivered to the Senior Trustee or the Subordinated
Trustee, as the case may be, an officers' certificate and an opinion
of counsel, each stating that all conditions precedent under the
applicable Indenture to either Defeasance or Covenant Defeasance, as
the case may be, have been complied with and that no violations under
agreements governing any other outstanding Debt would result.
SATISFACTION AND DISCHARGE
Each Indenture provides that it will be discharged and will cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of the debt securities, as expressly provided for in such Indenture) as
to all outstanding debt securities when (1) either (a) all the debt securities
theretofore authenticated and delivered (except lost, stolen or destroyed debt
securities which have been replaced or paid and debt securities for whose
payment money or certain U.S. Government Obligations has theretofore been
deposited in trust or segregated and held in trust by us and thereafter repaid
to us or discharged from such trust) have been delivered to the Senior Trustee
or the Subordinated Trustee, as the case may be, for cancellation or (b) all
debt securities not theretofore delivered to the Senior Trustee or the
Subordinated Trustee, as the case may be, for cancellation have become due and
payable or will become due and payable at maturity within one year and we have
irrevocably deposited or caused to be deposited with the Senior Trustee or the
Subordinated Trustee, as the case may be, funds in an amount sufficient to pay
and discharge the entire indebtedness on the debt securities not theretofore
delivered to the Senior Trustee or the Subordinated Trustee, as the case may be,
for cancellation, for principal of and interest on the debt securities to the
date of deposit together with irrevocable instructions from us directing the
Senior Trustee or the Subordinated Trustee, as the case may be, to apply such
funds to the payment thereof at maturity; (2) we have paid or have caused to be
paid all other sums payable under such Indenture by us; and (3) we have
delivered to the Senior Trustee or the Subordinated Trustee, as the case may be,
an officers' certificate and an opinion of counsel stating that all conditions
precedent under such Indenture relating to the satisfaction and discharge of
such Indenture have been complied with.
BOOK-ENTRY SYSTEM
Unless otherwise specified in the applicable prospectus supplement, any
debt securities will be represented by certificate in book-entry form ("GLOBAL
DEBT SECURITIES") as set forth below.
Any Global Debt Securities will be registered in the name of The Depository
Trust Company's ("DTC") nominee. Except as set forth below, a Global Debt
Security may not be transferred except as a whole by DTC to a nominee of DTC or
by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such
nominee to a successor of DTC or a nominee of such successor.
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DTC has advised us that it is a limited-purpose trust company organized
under the laws of the State of New York, a member of the Federal Reserve System,
a "clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC was created to hold securities of its participants
and to facilitate the clearance and settlement of securities transactions among
its participants in such securities through electronic book-entry changes in
accounts of the participants, thereby eliminating the need for physical movement
of securities certificates. DTC's participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations, some of whom (and/or their representatives) own DTC. Access to
DTC's book-entry system is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. Persons who are
not participants may beneficially own securities held by DTC only through
participants.
Upon the issuance by us of any Global Debt Securities, DTC will credit, on
its book-entry registration and transfer system, the respective principal
amounts of debt securities to the accounts of participants. The accounts to be
credited will be designated by the applicable underwriter. Ownership of
beneficial interests in a Global Debt Security will be limited to participants
or persons that may hold interests through participants. Beneficial interests in
a Global Debt Security will be shown on, and the transfer thereof will be
effected only through, records maintained by DTC (with respect to beneficial
interests of participants) or by participants or persons that may hold interests
through participants (with respect to beneficial interests of beneficial
owners). The laws of some states require that certain purchasers of securities
take physical delivery of such securities in certificated form. Such limits and
such laws may impair the ability to transfer beneficial interests in a Global
Debt Security.
For a Global Debt Security, so long as DTC or its nominee is the registered
owner of such Global Debt Security, DTC or its nominee, as the case may be, will
be considered the sole owner or holder of the debt securities represented by
such Global Debt Security for all purposes under the Senior Debt Indenture.
Except as provided below, owners of beneficial interests in a Global Debt
Security will not be entitled to have debt securities represented by such Global
Debt Security registered in their names, will not receive or be entitled to
receive physical delivery of such debt securities in certificated form and will
not be considered the owners or holders thereof under the Senior Debt Indenture
or the Subordinated Debt Indenture, as the case may be.
Principal and interest payments in respect of the debt securities will be
made in immediately available funds by us to DTC or its nominee, as the case may
be, as the holder of the related Global Debt Securities. None of us, the Senior
Trustee or the Subordinated Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in any Global Debt Securities, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests. None of us, the Senior Trustee or the Subordinated Trustee
will have any responsibility or liability for DTC's exercise of or failure to
exercise any redemption option with respect to any debt securities on behalf of
any holder of a beneficial interest therein, other than our obligation to redeem
such debt
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securities if such option is properly exercised by DTC or its nominee, as
registered holder, in accordance with the procedures specified therefor. We
expect that DTC, upon receipt of any payment of principal or interest in respect
of any Global Debt Securities, will credit immediately the accounts of the
related participants with payment in amounts proportionate to their respective
beneficial interests in the principal amount of such Global Debt Securities as
shown on the records of DTC. We also expect that payments by participants to
owners of beneficial interests in any Global Debt Securities will be governed by
standing customer instructions and customary practices, as is now the case, with
securities held for the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such participants. Payments to
DTC in respect of the debt securities which are represented by any Global Debt
Securities shall be our responsibility or the responsibility of the Senior
Trustee or the Subordinated Trustee, as the case may be. Disbursement of such
payments to direct participants shall be the responsibility of DTC and
disbursement of such payments to beneficial owners shall be the responsibility
of direct and indirect participants.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants and by direct and
indirect participants to beneficial owners, and vice versa, are governed by
arrangements among them, subject to statutory or regulatory requirements as may
be in effect from time to time; and none of us, the Senior Trustee or the
Subordinated Trustee will have any responsibility or liability with respect
thereto.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that we believe to be reliable, but we take no
responsibility for the accuracy of such information.
If DTC is at any time unwilling or unable to continue as depository and we
do not appoint a successor depository within 90 days, we will issue debt
securities in certificated form in exchange for each Global Debt Security. In
addition, we may at any time determine not to have one or more series of debt
securities represented by any Global Debt Securities. In any such instance,
owners of beneficial interests in any such Global Debt Security will be entitled
to physical delivery of debt securities in certificated form equal in principal
amount to such beneficial interest and to have such debt securities registered
in their names. Debt securities so issued in certificated form will be issued in
denominations of $1,000 or any integral multiple thereof and will be issued in
registered form only, without coupons.
THE TRUSTEES
The Indentures and provisions of the TIA incorporated by reference therein
contain limitations on the rights of the Senior Trustee or the Subordinated
Trustee, as the case may be thereunder, should the Senior Trustee or the
Subordinated Trustee, as the case may be, become one of our creditors, to obtain
payment of claims in certain cases. We may from time to time maintain bank
accounts and have other customary banking relationships with and obtain credit
facilities and lines of credit from the Senior Trustee or the Subordinated
Trustee, in the ordinary course of business; provided, however, that if the
Senior Trustee or the Subordinated Trustee, as the case
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may be, acquires any conflicting interest (as defined in Section 310(b) of the
TIA), it must eliminate such conflict or resign.
We will appoint the Senior Trustee or the Subordinated Trustee, as the case
may be, at the offices specified in the applicable Indenture as registrar,
principal paying agent and transfer agent for the debt securities. In such
capacities, the Senior Trustee or the Subordinated Trustee, as the case may be,
will be responsible for, among other things, (1) maintaining a record of the
aggregate holdings of debt securities represented by the Global Debt Security
and accepting debt securities for exchange and registration of transfer, (2)
ensuring that payments of principal of and interest on the Global Debt Security
and other debt securities received from us by the Senior Trustee or the
Subordinated Trustee, as the case may be, are duly paid to DTC or its nominee or
the holders thereof, as the case may be, and (3) transmitting to us any notices
from holders of debt securities. We will cause the transfer agent to act as a
registrar. We may vary or terminate the appointment of the transfer agent or
appoint additional or other transfer agents or approve any change in the office
through which any transfer agent acts.
DESCRIPTION OF COMMON STOCK AND RIGHTS
Our shares of common stock registered under the registration statement of
which this prospectus is a part are issuable solely upon conversion or exchange
of debt securities and will not be separately sold or issued.
The following summary is not complete. You should refer to the applicable
provisions of our restated certificate of incorporation, including the
certificate of designations under which any outstanding series of preferred
stock may be issued, the rights agreement governing our shareholder rights plan,
and the Delaware General Corporation Law for a complete statement of the terms
and rights of our common stock and non-voting common stock. Copies of our
restated certificate of incorporation, certificate of designation, preferences
and rights of Series A Junior Participating Preferred Stock, and rights
agreement have been filed as exhibits to the registration statement of which
this prospectus is a part and are incorporated by reference into this
prospectus.
GENERAL
Our restated certificate of incorporation provides that we have authority
to issue 50,000,000 shares of common stock, par value $.01 per share and
25,000,000 shares of non-voting common stock, par value $.01 per share. As of
August 2, 1999, we had 26,719,692 shares of common stock issued and outstanding
and no shares of non-voting common stock issued and outstanding.
VOTING RIGHTS
Each holder of our common stock is entitled to one vote per share in the
election of directors and on all other matters submitted to a vote of
stockholders and does not have cumulative voting rights. Holders of our
non-voting common stock do not have voting rights, other than those required by
law.
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CONVERSION RIGHTS
Qualified institutional investors who are subject to regulatory
requirements that forbid or limit their right to own general voting stock may
convert their common stock into non-voting common stock on a share-for-share
basis as needed to satisfy applicable regulatory requirements, or directly
purchase non-voting common stock because of such regulatory requirements.
Thereafter, the non-voting common stock may be converted into common stock on a
share-for-share basis in such circumstances as are permitted by applicable
regulatory requirements.
DIVIDENDS
Subject to any preferential rights of any of our outstanding preferred
stock, holders of our common stock and non-voting common stock, treated as a
single class, are entitled to receive, based on the number of shares held, cash
dividends when and as declared by our board of directors from funds legally
available for such purpose.
RIGHTS UPON LIQUIDATION
If we liquidate, holders of our common stock and non-voting common stock,
treated as a single class, are entitled to receive, based on the number of
shares held, all of the assets available for distribution to stockholders after
payment of all prior claims, including any preferential liquidation rights of
any preferred stock outstanding at that time. The holders of our common stock
and non-voting common stock do not have any redemption rights.
OTHER RIGHTS
The holders of our common stock and non-voting common stock do not have
preemptive rights to subscribe to any additional shares of any class of our
capital stock. All of our outstanding shares of common stock are, and, upon
conversion or exchange any issued shares of our common stock and/or non-voting
common stock will be, fully paid and non-assessable. Our common stock and
non-voting common stock do not have any sinking fund provisions.
Our common stock is listed on the NYSE under the symbol "BWA" and the
transfer agent and registrar for our common stock is ChaseMellon Shareholder
Services.
SOME IMPORTANT CHARTER AND STATUTORY PROVISIONS
Our restated certificate of incorporation provides for the division of our
board of directors into 3 classes of directors, each serving staggered, 3-year
terms. In addition, our restated certificate of incorporation and our bylaws
provide that directors may be removed only for cause and only upon the
affirmative vote of holders of at least 80% of our outstanding voting power. Our
restated certificate of incorporation further provides generally that any
alteration, amendment or repeal of its sections regarding the composition,
election and classification of the board of directors requires the approval of
the holders of at least 80% of our outstanding voting power.
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Our restated certificate of incorporation also provides that when it is
evaluating any proposal from another party to (1) make a tender offer for our
equity securities, (2) merge or consolidate us with another corporation or (3)
purchase or otherwise acquire substantially all of our properties and assets,
our board of directors must give due consideration to all relevant factors,
including the social and economic effects on our employees, customers, suppliers
and other constituents and the communities in which we operate or are located.
Our restated certificate of incorporation provides that a director will not
be personally liable for monetary damages to us or our stockholders for breach
of fiduciary duty as a director, except for liability:
* for any breach of the director's duty of loyalty to us or our
stockholders;
* for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; or
* for paying a dividend or approving a stock repurchase or redemption
in violation of Section 174 of the Delaware General Corporation Law; or
* for any transaction from which the director derived an improper
personal benefit.
Our restated certificate of incorporation also provides that each of our current
or former directors, officers, employees or agents, or each such person who is
or was serving or who had agreed to serve at our request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise (including the heirs, executors, administrators or estate of
that person), will be indemnified by us to the full extent permitted by the
Delaware General Corporation Law. Our restated certificate of incorporation also
specifically authorizes us to enter into agreements with any person providing
for indemnification greater or different than that provided by our certificate
of incorporation.
These provisions may have the effect of deterring hostile takeovers or
delaying changes in control of our company or our management.
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law. In general, the statute prohibits a publicly held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless:
(1) prior to that date, the board of directors approved either the
business combination or the transaction that resulted in the stockholder
becoming an interested stockholder; or
(2) when the transaction that resulted in such person becoming an
interested stockholder was completed, the interested stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time
the transaction began, excluding, for pur-
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poses of determining the number of shares outstanding, shares owned by some
directors or employee stock plans; or
(3) on or after the date the stockholder became an interested
stockholder, the business combination is approved by the board of directors
and authorized by the affirmative vote, and not by the written consent, of
at least two-thirds of outstanding voting stock, excluding the stock owned
by the interested stockholder.
For purposes of Section 203, a "business combination" includes a merger,
asset sale, or other transaction resulting in a financial benefit to the
interested stockholder. An "interested stockholder" is a person, other than the
corporation and any direct or indirect majority-owned subsidiary of the
corporation, who together with affiliates and associates, owns or, as an
affiliate or associate, within three years prior, did own, 15% or more of the
corporation's outstanding voting stock.
SHAREHOLDER RIGHTS PLAN
On July 21, 1998, our board of directors adopted a shareholder rights plan
and signed a rights agreement with ChaseMellon Shareholder Services, L.L.C., as
rights agent. A copy of our rights agreement has been filed as an exhibit to the
registration statement of which this prospectus is a part and is incorporated by
reference into this prospectus. Under our shareholder rights plan, one preferred
stock purchase right is attached to each outstanding share of our common stock.
We refer to these preferred stock purchase rights as the "rights." Each share of
common stock and each share of non-voting common stock issued in the future will
also receive a right until the rights become exercisable. Until a right is
exercised, the holder of a right does not have any additional rights as a
stockholder. These rights will expire on July 22, 2008, unless they are
previously redeemed or exchanged by us as described below. These rights trade
automatically with our common stock and non-voting common stock and will
separate from the common stock and non-voting common stock and become
exercisable only under the circumstances described below.
In general, the rights will become exercisable when the first of the
following events happen:
(1) ten calendar days after a public announcement that a person or group
has acquired beneficial ownership of 20% or more of the sum of our
outstanding common stock and non-voting common stock; or
(2) ten business days, or such other date determined by our board of
directors, after the beginning of, or announcement of an intention to
begin, a tender offer or exchange offer that would result in a person
or group beneficially owning 20% or more of the sum of our outstanding
common stock and non-voting common stock.
If the rights become exercisable, holders of the rights will be able to
purchase from us one one-hundredth of a share of our Series A Junior
Participating Preferred Stock at a price of $300, subject to adjustment.
However, all rights owned by any persons or groups triggering the
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event shall be void. If a person or group acquires 20% or more of the sum of our
outstanding common stock and non-voting common stock then each right will
entitle the holder (other than the 20% or more person or group that triggered
the rights) to purchase a number of shares of our common stock in respect of
rights attached to our common stock, or a number of shares of our non-voting
common stock in respect of rights attached to our non-voting common stock, in
either case having a market value of 2 times the exercise price of the right.
If we are acquired in a merger or other business combination transaction,
or 50% or more of our consolidated assets or earning power are sold after a
person or group acquires 20% or more of the sum of our outstanding common stock
and non-voting common stock, then each right will entitle the holder (other than
the 20% or more person or group that triggered the rights) to purchase a number
of shares of common stock of the surviving or acquiring corporation having a
market value of 2 times the exercise price of the right.
At any time after a person or group has acquired beneficial ownership of
20% or more of our outstanding common stock and non-voting common stock, our
board of directors may, at its option, exchange all or any part of the then
outstanding and exercisable rights for shares of common stock or shares of
Series A Preferred Stock at an exchange ratio of one share of common stock or
one one-hundredth of a share of Series A Junior Participating Preferred Stock
per right. However, our board of directors will not be empowered to effect such
exchange at any time after any person or group becomes the beneficial owner of
50% or more of our outstanding common stock.
Our board of directors may redeem the rights for $.01 per right at any time
before a person or group has acquired beneficial ownership of 20% or more of the
sum of our outstanding common stock and non-voting common stock. Our board of
directors may generally reduce the 20% trigger to the higher of (1) the largest
percentage then known to our company beneficially owned by a person or group or
(2) 10%, and may otherwise amend the rights at any time before a person or group
has acquired beneficial ownership of 20% or more of the sum of our outstanding
common stock and non-voting common stock. The rights will expire at the close of
business on July 22, 2008 unless we redeem them before that date.
CERTAIN U.S. FEDERAL INCOME
TAX CONSIDERATIONS
The following is a summary of the material U.S. federal income tax
consequences of the acquisition, ownership and disposition by a U.S. Holder (as
defined below) or a United States Alien Holder (as defined below) of debt
securities issued in registered form. In the event that we issue debt securities
in bearer form, the applicable prospectus supplement will describe the material
U.S. federal income tax consequences thereof.
The discussion does not cover all aspects of U.S. federal income taxation
that may be relevant to, or the actual tax effect that any of the matters
described herein will have on, the acquisition, ownership or disposition of debt
securities by particular investors, and does not address state, local, foreign
or other tax laws. In particular, this summary addresses only investors that
will hold the debt securities as capital assets and does not discuss all of the
tax considerations
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that may be relevant to certain types of investors subject to special treatment
under the federal income tax laws (such as banks, insurance companies, investors
liable for the alternative minimum tax, individual retirement accounts and other
tax-deferred accounts, tax-exempt organizations, dealers in securities or
currencies, traders in securities that elect to mark to market for U.S. federal
income tax purposes, investors that will hold the debt securities as part of
straddles, hedging transactions or conversion transactions for federal tax
purposes, investors whose functional currency is not the U.S. dollar or
investors who enter into "constructive sales" of the debt securities).
Additional United States federal income tax consequences applicable to
particular debt securities may be set forth in the applicable prospectus
supplement.
As used herein, the term "U.S. HOLDER" means a beneficial owner of debt
securities that is (1) a citizen or individual resident of the United States for
U.S. federal income tax purposes, (2) a corporation, partnership or limited
liability company created or organized under the laws of the United States, any
State thereof or the District of Columbia, (3) an estate the income of which is
subject to U.S. federal income tax on a net income basis regardless of its
source or (4) a trust if (a) a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons has the authority to control all substantial
decisions of the trust, or (b) a valid election has been made under applicable
Treasury regulations for the trust to be treated as a U.S. person. A "UNITED
STATES ALIEN HOLDER" is any holder who or that is not a U.S. Holder.
This summary is based on the Internal Revenue Code of 1986, as amended (the
"CODE"), its legislative history, existing and proposed Treasury regulations
promulgated thereunder, published rulings and court decisions, all as currently
in effect and all subject to change at any time, perhaps with retroactive
effect.
THIS SUMMARY IS FOR GENERAL INFORMATION ONLY. YOU ARE URGED TO CONSULT YOUR
PERSONAL TAX ADVISORS AS TO THE PARTICULAR FEDERAL, STATE, LOCAL, FOREIGN AND
OTHER TAX CONSEQUENCES TO YOU OF ACQUIRING, OWNING AND DISPOSING OF THE DEBT
SECURITIES.
U.S. HOLDERS
Except where otherwise expressly indicated, this summary under "U.S.
Holders" deals only with initial purchasers of debt securities at the issue
price that are U.S. Holders.
PAYMENTS OF INTEREST
General. Interest on a debt security, whether payable in U.S. dollars or a
currency, composite currency or basket of currencies other than U.S. dollars (a
"FOREIGN CURRENCY"), other than interest on a "Discount Debt Security" that is
not "qualified stated interest" (each as defined below under "-- Original Issue
Discount -- General"), will be taxable to a U.S. Holder as ordinary income at
the time it is received or accrued, depending on the holder's method of
accounting for U.S. federal income tax purposes.
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Foreign Currency Denominated Interest. If an interest payment is
denominated in, or determined by reference to, a foreign currency, the amount
of income recognized by a cash basis U.S. Holder will be the U.S. dollar
value of the interest payment, based on the exchange rate in effect on the
date of receipt, regardless of whether the payment is in fact converted into
U.S. dollars.
An accrual basis U.S. Holder may determine the amount of income recognized
with respect to an interest payment denominated in, or determined by reference
to, a foreign currency in accordance with either of two methods. Under the first
method, the amount of income accrued will be based on the average exchange rate
in effect during the interest accrual period (or, with respect to an accrual
period that spans two taxable years of a U.S. Holder, the part of the period
within the taxable year).
Under the second method, the U.S. Holder may elect to determine the amount
of income accrued on the basis of the exchange rate in effect on the last day of
the accrual period or, in the case of an accrual period that spans two taxable
years, the exchange rate in effect on the last day of the part of the period
within the taxable year. Additionally, if a payment of interest is actually
received within five business days of the last day of the accrual period, an
electing accrual basis U.S. Holder may instead translate such accrued interest
into U.S. dollars at the exchange rate in effect on the day of actual receipt.
Any such election will apply to all debt instruments held by the U.S. Holder at
the beginning of the first taxable year to which the election applies or
thereafter acquired by the U.S. Holder, and will be irrevocable without the
consent of the Internal Revenue Service (the "IRS").
Upon receipt of the interest payment (including a payment attributable to
accrued but unpaid interest upon the sale or retirement of a debt security)
denominated in, or determined by reference to, a foreign currency, an accrual
basis U.S. Holder that is required to accrue interest income prior to the date
of receipt will recognize ordinary income or loss measured by the difference
between the exchange rate used to accrue interest income pursuant to one of the
two above methods and the exchange rate in effect on the date of receipt,
regardless of whether the payment is in fact converted into U.S. dollars.
ORIGINAL ISSUE DISCOUNT
General. The following is a summary of the principal federal income tax
consequences of the ownership of debt securities issued at an original issue
discount. It is based in part upon the rules governing original issue discount
that are set forth in Sections 1271 through 1275 of the Code and in Treasury
regulations thereunder (the "OID REGULATIONS"). The following summary does not
discuss the federal income tax consequences of an investment in contingent
payment debt instruments. In the event we issue contingent payment debt
instruments, the applicable prospectus supplement will describe the material
federal income tax consequences thereof.
A debt security, other than a debt security with a term of one year or
less (a "SHORT-TERM DEBT SECURITY"), will be treated as issued at an original
issue discount (a "DISCOUNT DEBT SECURITY") if the excess of the debt security's
"stated redemption price at maturity" over its issue price is more than a "de
minimis amount" (as defined below). Generally, the issue price of a
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debt security will be the first price at which a substantial amount of debt
securities included in the issue of which the debt security is a part is sold to
persons other than bond houses, brokers, or similar persons or organizations
acting in the capacity of underwriters, placement agents, or wholesalers. The
stated redemption price at maturity of a debt security is the total of all
payments provided by the debt security that are not payments of "QUALIFIED
STATED INTEREST." A qualified stated interest payment is generally any one of a
series of stated interest payments on a debt security that are unconditionally
payable in cash or property (other than our debt instruments) at least annually
during the entire term of the debt security at a single fixed rate (with certain
exceptions for lower rates paid during some periods) applied to the outstanding
principal amount of the debt security. Special rules for "Floating Rate Debt
Securities" (as defined below under "-Original Issue Discount -- Floating Rate
Debt Securities") are described below under "-- Original Issue Discount --
Floating Rate Debt Securities."
In general, if the excess of a debt security's stated redemption price at
maturity over its issue price is less than 1/4 of 1 percent of the debt
security's stated redemption price at maturity multiplied by the number of
complete years to its maturity from the issue date (the "DE MINIMIS AMOUNT"),
then such excess, if any, constitutes "DE MINIMIS ORIGINAL ISSUE DISCOUNT" and
the debt security is not a Discount Debt Security. Unless the election described
below under "Original Issue Discount --Election to Treat All Interest as
Original Issue Discount" is made, a U.S. Holder of a debt security with de
minimis original issue discount must include such de minimis original issue
discount in income as capital gain as stated principal payments on the debt
security are made. The includible amount with respect to each such payment will
equal the product of the total amount of the debt security's de minimis original
issue discount and a fraction, the numerator of which is the amount of the
principal payment made and the denominator of which is the stated principal
amount of the debt security.
U.S. Holders of Discount Debt Securities having a maturity of more than one
year from their date of issue must include original issue discount ("OID") in
income calculated on a constant-yield method before the receipt of cash
attributable to such income, and generally will have to include in income
increasingly greater amounts of OID over the life of the debt security. The
amount of OID includible in income by a U.S. Holder of a Discount Debt Security
is the sum of the daily portions of OID with respect to the Discount Debt
Security for each day during the taxable year or portion of the taxable year on
which the U.S. Holder holds such Discount Debt Security ("ACCRUED OID"). The
daily portion is determined by allocating to each day in any "accrual period" a
pro rata portion of the OID allocable to that accrual period. Accrual periods
with respect to a debt security may be of any length selected by the U.S. Holder
and may vary in length over the term of the debt security as long as (1) no
accrual period is longer than one year and (2) each scheduled payment of
interest or principal on the debt security occurs on either the final or first
day of an accrual period. The amount of OID allocable to an accrual period
equals the excess of (a) the product of the Discount Debt Security's adjusted
issue price at the beginning of the accrual period and such debt security's
yield to maturity (determined on the basis of compounding at the close of each
accrual period and properly adjusted for the length of the accrual period) over
(b) the sum of the payments of qualified stated interest on the debt security
allocable to the accrual period. The "ADJUSTED ISSUE PRICE" of a Discount Debt
Security at the beginning of any accrual period is the issue price of the debt
security increased by (x) the amount of ac-
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crued OID for each prior accrual period and decreased by (y) the amount of any
payments previously made on the debt security that were not qualified stated
interest payments. For purposes of determining the amount of OID allocable to an
accrual period, if an interval between payments of qualified stated interest on
the debt security contains more than one accrual period, the amount of qualified
stated interest payable at the end of the interval (including any qualified
stated interest that is payable on the first day of the accrual period
immediately following the interval) is allocated pro rata on the basis of
relative lengths to each accrual period in the interval, and the adjusted issue
price at the beginning of each accrual period in the interval must be increased
by the amount of any qualified stated interest that has accrued prior to the
first day of the accrual period but that is not payable until the end of the
interval. The amount of OID allocable to an initial short accrual period may be
computed using any reasonable method if all other accrual periods other than a
final short accrual period are of equal length. The amount of OID allocable to
the final accrual period is the difference between (x) the amount payable at the
maturity of the debt security (other than any payment of qualified stated
interest) and (y) the debt security's adjusted issue price as of the beginning
of the final accrual period.
Acquisition Premium. A U.S. Holder that purchases a Discount Debt Security
for an amount less than or equal to the sum of all amounts payable on the debt
security after the purchase date other than payments of qualified stated
interest but in excess of its adjusted issue price (any such excess being
"ACQUISITION PREMIUM") and that does not make the election described below under
"Original Issue Discount -- Election to Treat All Interest as Original Issue
Discount" is permitted to reduce the daily portions of OID by a fraction, the
numerator of which is the excess of the U.S. Holder's adjusted basis in the debt
security immediately after its purchase over the adjusted issue price of the
debt security, and the denominator of which is the excess of the sum of all
amounts payable on the debt security after the purchase date, other than
payments of qualified stated interest, over the debt security's adjusted issue
price.
Pre-Issuance Accrued Interest. If (1) a portion of the initial purchase
price of a debt security is attributable to pre-issuance accrued interest, (2)
the first stated interest payment on the debt security is to be made within one
year of the debt security's issue date and (3) the payment will equal or exceed
the amount of pre-issuance accrued interest, then the issue price of the debt
security may be computed by reducing the issue price (as determined under "--
Original Issue Discount -- General") by the amount of pre-issuance accrued
interest. In that event, a portion of the first stated interest payment will be
treated as a return of the excluded pre-issuance accrued interest and not as an
amount payable on the debt security.
Debt Securities Subject to Contingencies Including Optional Redemption. In
general, if a debt security provides for an alternative payment schedule or
schedules applicable upon the occurrence of a contingency or contingencies and
the timing and amounts of the payments that comprise each payment schedule are
known as of the issue date, and if, based on all the facts and circumstances as
of the issue date, a single payment schedule is significantly more likely than
not to occur, then the yield and maturity of the debt security are computed
based on that payment schedule.
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Notwithstanding the general rule described in the preceding paragraph, if
we have an unconditional option or options to redeem a debt security, or the
Holder has an unconditional option or options to cause a debt security to be
repurchased, prior to the debt security's stated maturity, then (1) in the case
of our option or options, we will be deemed to exercise or not exercise an
option or combination of options in the manner that minimizes the yield on the
debt security and (2) in the case of an option or options of the Holder, the
Holder will be deemed to exercise or not exercise an option or combination of
options in the manner that maximizes the yield on the debt security. For
purposes of those calculations, the yield on the debt security is determined by
using any date on which the debt security may be redeemed or repurchased as the
maturity date and the amount payable on such date in accordance with the terms
of the debt security as the principal amount payable at maturity.
If a contingency (including the exercise of an option) actually occurs or
does not occur contrary to an assumption made according to the above rules (a
"CHANGE IN CIRCUMSTANCES") then, except to the extent that a portion of the debt
security is repaid as a result of the change in circumstances and solely for
purposes of the accrual of OID, the yield and maturity of the debt security are
redetermined by treating the debt security as reissued on the date of the change
in circumstances for an amount equal to the debt security's adjusted issue price
on that date.
Election to Treat All Interest as Original Issue Discount. A U.S. Holder
may elect to include in gross income all interest that accrues on a debt
security using the constant-yield method described above under the heading
"Original Issue Discount -- General," with the modifications described below.
For purposes of this election, interest includes stated interest, OID, de
minimis original issue discount, market discount, de minimis market discount and
unstated interest, as adjusted by any amortizable bond premium (described below
under "U.S. Holders -- Debt Securities Purchased at a Premium") or acquisition
premium.
In applying the constant-yield method to a debt security with respect to
which this election has been made, the issue price of the debt security will
equal the electing U.S. Holder's adjusted basis in the debt security immediately
after its acquisition, the issue date of the debt security will be the date of
its acquisition by the electing U.S. Holder, and no payments on the debt
security will be treated as payments of qualified stated interest. This election
will generally apply only to the debt security with respect to which it is made
and may not be revoked without the consent of the IRS. If this election is made
with respect to a debt security with amortizable bond premium, then the electing
U.S. Holder will be deemed to have elected to apply amortizable bond premium
against interest with respect to all debt instruments with amortizable bond
premium (other than debt instruments the interest on which is excludible from
gross income) held by the electing U.S. Holder as of the beginning of the
taxable year in which the debt security with respect to which the election is
made is acquired or thereafter acquired. The deemed election with respect to
amortizable bond premium may not be revoked without the consent of the IRS.
If the election to apply the constant-yield method to all interest on a
debt security is made with respect to a Market Discount Debt Security (as
defined below under "U.S. Holders -- Market Discount"), the electing U.S. Holder
will be treated as having made the election discussed
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below under "-- Market Discount" to include market discount in income currently
over the life of all debt instruments with market discount acquired by the
electing U.S. Holder on or after the first day of the first taxable year to
which the election applies.
Floating Rate Debt Securities. Debt securities that bear interest at a
floating rate ("FLOATING RATE DEBT SECURITIES") generally will bear interest at
a "qualified floating rate" and thus will be treated as "variable rate debt
instruments" under the OID Regulations. A Floating Rate Debt Security will
qualify as a "variable rate debt instrument" under the OID Regulations if (a)
its issue price does not exceed the total noncontingent principal payments due
under the Floating Rate Debt Security by more than a specified de minimis amount
and (b) it does not provide for stated interest other than stated interest, paid
or compounded at least annually, at current values of (1) one or more qualified
floating rates, (2) a single fixed rate and one or more qualified floating
rates, (3) a single "objective rate," or (4) a single fixed rate and a single
objective rate that is a qualified inverse floating rate.
A "QUALIFIED FLOATING RATE" is any variable rate where variations in the
value of such rate can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds in the currency in which the
Floating Rate Debt Security is denominated. Although a multiple of a qualified
floating rate will generally not itself constitute a qualified floating rate, a
variable rate equal to the product of a qualified floating rate and a fixed
multiple that is greater than 0.65 but not more than 1.35 will constitute a
qualified floating rate. A variable rate equal to the product of a qualified
floating rate and a fixed multiple that is greater than 0.65 but not more than
1.35, increased or decreased by a fixed rate, will also constitute a qualified
floating rate. In addition, under the OID Regulations, if a debt security
provides for two or more qualified floating rates that can reasonably be
expected to have approximately the same values throughout the term of the
Floating Rate Debt Security (e.g., two or more qualified floating rates with
values within 25 basis points of each other as determined on the Floating Rate
Debt Security's issue date), then such qualified floating rates will be treated
as a single qualified floating rate. Notwithstanding the foregoing, a variable
rate that would otherwise constitute a qualified floating rate but which is
subject to one or more restrictions, such as a maximum numerical limitation
(i.e., a cap) or a minimum numerical limitation (i.e., a floor), may, under
certain circumstances, fail to be treated as a qualified floating rate under the
OID Regulations unless such cap or floor is fixed throughout the term of the
debt security or is not reasonably expected significantly to affect the yield on
the debt security.
An "OBJECTIVE RATE" is a rate that is not itself a qualified floating rate
but which is determined using a single fixed formula and which is based upon
objective financial or economic information (e.g., one or more qualified
floating rates or the yield of actively traded personal property) that is not
within the control of the issuer or a related party and is not unique to the
circumstances of the issuer or a related party, such as dividends, profits or
the value of the issuer's stock. The OID Regulations also provide that other
variable interest rates may be treated as objective rates if so designated by
the IRS in the future. Despite the foregoing, a variable rate of interest on a
Floating Rate Debt Security will not constitute an objective rate if it is
reasonably expected that the average value of such rate during the first half of
the Floating Rate Debt Security's term will be either significantly less than or
significantly greater than the average value of
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the rate during the final half of the Floating Rate Debt Security's term. A
"QUALIFIED INVERSE FLOATING RATE" is any objective rate where such rate is equal
to a fixed rate minus a qualified floating rate, as long as variations in the
rate can reasonably be expected to reflect inversely contemporaneous variations
in the qualified floating rate. The OID Regulations also provide that if a
Floating Rate Debt Security provides for stated interest at a fixed rate for an
initial period of one year or less followed by a variable rate that is either a
qualified floating rate or an objective rate and if the variable rate on the
Floating Rate Debt Security's issue date is intended to approximate the fixed
rate (e.g., the value of the variable rate on the issue date does not differ
from the value of the fixed rate by more than 25 basis points), then the fixed
rate and the variable rate together will constitute either a single qualified
floating rate or objective rate, as the case may be.
A qualified floating rate or objective rate in effect at any time during
the term of the instrument must be set at a "current value" of that rate. A
"CURRENT VALUE" of a rate is the value of the rate on any day that is no earlier
than 3 months prior to the first day on which that value is in effect and no
later than 1 year following that first day.
If a Floating Rate Debt Security that provides for stated interest at
either a single qualified floating rate or a single objective rate throughout
the term thereof qualifies as a "variable rate debt instrument" under the OID
Regulations, then any stated interest on such Floating Rate Debt Security which
is unconditionally payable in cash or property (other than our debt instruments)
at least annually will constitute qualified stated interest and will be taxed
accordingly. Thus, a Floating Rate Debt Security that provides for stated
interest at either a single qualified floating rate or a single objective rate
throughout the term thereof and that qualifies as a "variable rate debt
instrument" under the OID Regulations will generally not be treated as having
been issued with OID unless the Floating Rate Debt Security is issued at a
"true" discount (i.e., at a price below the debt security's stated principal
amount) in excess of a specified de minimis amount. OID on such a Floating Rate
Debt Security arising from "true" discount is allocated to an accrual period
using the constant yield method described above by assuming that the variable
rate is a fixed rate equal to (1) in the case of a qualified floating rate or
qualified inverse floating rate, the value, as of the issue date, of the
qualified floating rate or qualified inverse floating rate, or (2) in the case
of an objective rate (other than a qualified inverse floating rate), a fixed
rate that reflects the yield that is reasonably expected for the Floating Rate
Debt Security.
In general, any other Floating Rate Debt Security that qualifies as a
"variable rate debt instrument" will be converted into an "equivalent" fixed
rate debt instrument for purposes of determining the amount and accrual of OID
and qualified stated interest on the debt security. The OID Regulations
generally require that such a Floating Rate Debt Security be converted into an
"equivalent" fixed rate debt instrument by substituting any qualified floating
rate or qualified inverse floating rate provided for under the terms of the
Floating Rate Debt Security with a fixed rate equal to the value of the
qualified floating rate or qualified inverse floating rate, as the case may be,
as of the Floating Rate Debt Security's issue date. Any objective rate (other
than a qualified inverse floating rate) provided for under the terms of the
Floating Rate Debt Security is converted into a fixed rate that reflects the
yield that is reasonably expected for the Floating Rate Debt Security. In the
case of a Floating Rate Debt Security that qualifies as a "variable rate debt
instrument" and provides for stated interest at a fixed rate in addition to
either one or more quali-
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fied floating rates or a qualified inverse floating rate, the fixed rate is
initially converted into a qualified floating rate (or a qualified inverse
floating rate, if the Floating Rate Debt Security provides for a qualified
inverse floating rate). Under such circumstances, the qualified floating rate or
qualified inverse floating rate that replaces the fixed rate must be such that
the fair market value of the Floating Rate Debt Security as of the Floating Rate
Debt Security's issue date is approximately the same as the fair market value of
an otherwise identical debt instrument that provides for either the qualified
floating rate or qualified inverse floating rate rather than the fixed rate.
Subsequent to converting the fixed rate into either a qualified floating rate or
a qualified inverse floating rate, the Floating Rate Debt Security is then
converted into an "equivalent" fixed rate debt instrument in the manner
described above.
Once the Floating Rate Debt Security is converted into an "equivalent"
fixed rate debt instrument pursuant to the foregoing rules, the amount of OID
and qualified stated interest, if any, are determined for the "equivalent" fixed
rate debt instrument by applying the general OID rules to the "equivalent" fixed
rate debt instrument and a U.S. Holder of the Floating Rate Debt Security will
account for such OID and qualified stated interest as if the U.S. Holder held
the "equivalent" fixed rate debt instrument. In each accrual period, appropriate
adjustments will be made to the amount of qualified stated interest or OID
assumed to have been accrued or paid with respect to the "equivalent" fixed rate
debt instrument in the event that such amounts differ from the actual amount of
interest accrued or paid on the Floating Rate Debt Security during the accrual
period.
If a Floating Rate Debt Security does not qualify as a "variable rate debt
instrument" under the OID Regulations, then the Floating Rate Debt Security
would be treated as a contingent payment debt obligation. Special United States
federal income tax considerations applicable to Floating Rate Debt Securities
that are treated as contingent payment debt obligations will be more fully
described in the applicable prospectus supplement.
Short-Term Debt Securities. In general, an individual or other cash basis
U.S. Holder of a Short-Term Debt Security is not required to accrue OID (as
specially defined below for the purposes of this paragraph and the immediately
following paragraph) for United States federal income tax purposes unless it
elects to do so (but may be required to include any stated interest in income as
the interest is received). Accrual basis U.S. Holders and certain other U.S.
Holders, including banks, regulated investment companies, dealers in securities,
common trust funds, U.S. Holders who hold debt securities as part of certain
identified hedging transactions, certain pass-thru entities and cash basis U.S.
Holders who so elect, are required to accrue OID on Short-Term Debt Securities
on either a straight-line basis or under the constant-yield method (based on
daily compounding), at the election of the U.S. Holder. In the case of a U.S.
Holder not required and not electing to include OID in income currently, any
gain realized on the sale, exchange or retirement of the Short-Term Debt
Security will be ordinary income to the extent of the OID accrued on a
straight-line basis (unless an election is made to accrue the OID under the
constant-yield method) through the date of sale, exchange or retirement. U.S.
Holders who are not required and do not elect to accrue OID on Short-Term Debt
Securities will be required to defer deductions for interest on borrowings
incurred or continued to purchase or carry such Short-Term
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Debt Securities in an amount not exceeding the deferred interest income until
the deferred interest income is realized.
For purposes of determining the amount of OID subject to these rules, all
interest payments on a Short-Term Debt Security, including stated interest, are
included in the Short-Term Debt Security's stated redemption price at maturity.
Foreign Currency Discount Debt Securities. OID for any accrual period on a
Discount Debt Security that is denominated in, or determined by reference to, a
foreign currency will be determined in the foreign currency and then translated
into U.S. dollars in the same manner as stated interest accrued by an accrual
basis U.S. Holder, as described above under "Payments of Interest -- Foreign
Currency Denominated Interest." Upon receipt of an amount attributable to OID
(whether in connection with a payment of interest or the sale or retirement of a
debt security), a U.S. Holder may recognize ordinary income or loss.
MARKET DISCOUNT
A Debt Security, other than a Short-Term Debt Security, will be treated as
purchased at a market discount (a "MARKET DISCOUNT DEBT SECURITY") if the debt
security's stated redemption price at maturity or, in the case of a Discount
Debt Security, the debt security's "revised issue price," exceeds the amount for
which the U.S. Holder purchased the debt security by at least 1/4 of 1 percent
of such debt security's stated redemption price at maturity or revised issue
price, respectively, multiplied by the number of complete years to the debt
security's maturity remaining after the U.S. Holder acquired the Debt Security.
If such excess is not sufficient to cause the debt security to be a Market
Discount Debt Security, then such excess constitutes "DE MINIMIS MARKET
DISCOUNT." The Code provides that, for these purposes, the "REVISED ISSUE PRICE"
of a debt security generally equals its issue price, increased by the amount of
any OID that has accrued on the debt security.
Any gain recognized on the maturity or disposition of a Market Discount
Debt Security will be treated as ordinary income to the extent that such gain
does not exceed the accrued market discount on such debt security.
Alternatively, a U.S. Holder of a Market Discount Debt Security may elect to
include market discount in income currently over the life of the debt security.
Such an election shall apply to all debt instruments with market discount
acquired by the electing U.S. Holder on or after the first day of the first
taxable year to which the election applies. This election may not be revoked
without the consent of the IRS.
Market discount on a Market Discount Debt Security will accrue on a
straight-line basis unless the U.S. Holder elects to accrue such market discount
on a constant-yield method. Such an election shall apply only to the debt
security with respect to which it is made and may not be revoked without the
consent of the IRS. A U.S. Holder of a Market Discount Debt Security that does
not elect to include market discount in income currently generally will be
required to defer deductions for interest on borrowings allocable to such debt
security in an amount not exceeding the accrued market discount on such debt
security until the earlier of the maturity or disposition of such debt security.
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Recent Developments. President Clinton's fiscal year 2000 budget plan
contains a proposal which, if enacted, would require U.S. Holders who use the
accrual method of accounting to include market discount in income as it accrues.
Under the budget proposal, the U.S. Holder's yield for purposes of calculating
and accruing market discount would be limited to the larger of (1) the
applicable Federal rate at the time the U.S. Holder acquired the debt instrument
plus five percentage points and (2) the original yield-to-maturity of the debt
instrument plus five percentage points. The proposal would affect any debt
instrument acquired on or after the date on which the proposal is enacted. This
summary of the budget proposal concerning market discount is for general
information only. You are urged to consult your personal tax advisors concerning
the status of the proposal and the particular consequences to you if it is
enacted.
DEBT SECURITIES PURCHASED AT A PREMIUM
A U.S. Holder that purchases a debt security for an amount in excess of its
principal amount, or in the case of a Discount Debt Security, its stated
redemption price at maturity, may elect to treat such excess as "amortizable
bond premium," in which case the amount required to be included in the U.S.
Holder's income each year with respect to interest on the debt security will be
reduced by the amount of amortizable bond premium allocable (based on the debt
security's yield to maturity) to such year. A U.S. Holder who makes such
election must reduce such Holder's tax basis in the debt security by the amount
of amortized premium. In the case of a debt security that is denominated in, or
determined by reference to a foreign currency, bond premium will be computed in
units of foreign currency, and amortizable bond premium will reduce interest
income in units of the foreign currency. At the time amortized bond premium
offsets interest income, exchange gain or loss (taxable as ordinary income or
loss) is realized measured by the difference between exchange rates at that time
and at the time of the acquisition of the debt securities. Any election to
amortize bond premium shall apply to all bonds (other than bonds the interest on
which is excludible from gross income) held by the U.S. Holder at the beginning
of the first taxable year to which the election applies or thereafter acquired
by the U.S. Holder, and is irrevocable without the consent of the IRS. See also
"Original Issue Discount -- Election to Treat All Interest as Original Issue
Discount."
PURCHASE, SALE AND RETIREMENT OF THE DEBT SECURITIES
A U.S. Holder's tax basis in a debt security will generally be its U.S.
dollar cost (as defined below), increased by the amount of any OID or market
discount included in the U.S. Holder's income with respect to the debt security
and the amount, if any, of income attributable to de minimis original issue
discount and de minimis market discount included in the U.S. Holder's income
with respect to the debt security, and reduced by (1) the amount of any payments
that are not qualified stated interest payments, and (2) the amount of any
amortizable bond premium applied to reduce interest on the debt security. The
U.S. dollar cost of a debt security purchased with a foreign currency will
generally be the U.S. dollar value of the purchase price on the date of purchase
or, in the case of debt securities traded on an established securities market,
as defined in the applicable Treasury Regulations, that are purchased by a cash
basis U.S. Holder (or an accrual basis U.S. Holder that so elects), on the
settlement date for the purchase.
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A U.S. Holder will generally recognize gain or loss on the sale or
retirement of a debt security equal to the difference between the amount
realized on the sale or retirement and the tax basis of the debt security. The
amount realized on a sale or retirement for an amount in foreign currency will
be the U.S. dollar value of such amount on the date of sale or retirement or, in
the case of debt securities traded on an established securities market, as
defined in the applicable Treasury Regulations, sold by a cash basis U.S. Holder
(or an accrual basis U.S. Holder that so elects), on the settlement date for the
sale. Except to the extent described above under "-- Original Issue Discount --
Short-Term Debt Securities" or "-- Market Discount" or described in the next
succeeding paragraph or attributable to accrued but unpaid interest, gain or
loss recognized on the sale or retirement of a debt security will be capital
gain or loss. Gain recognized on the disposition of a capital asset held by an
individual taxpayer for more than one year is generally subject to a maximum
rate of tax of 20%. U.S. Holders are urged to consult their own tax advisors
with respect to recently enacted capital gains legislation.
Gain or loss recognized by a U.S. Holder on the sale or retirement of a
debt security that is attributable to changes in exchange rates will be treated
as ordinary income or loss. However, exchange gain or loss is taken into account
only to the extent of total gain or loss realized on the transaction.
EXCHANGE OF AMOUNTS IN OTHER THAN U.S. DOLLARS
Foreign currency received as interest on a debt security or on the sale or
retirement of a debt security will have a tax basis equal to its U.S. dollar
value at the time such interest is received or at the time of such sale or
retirement. Foreign currency that is purchased will generally have a tax basis
equal to the U.S. dollar value of the foreign currency on the date of purchase.
Any gain or loss recognized on a sale or other disposition of foreign currency
(including its use to purchase debt securities or upon exchange for U.S.
dollars) will be ordinary income or loss.
AMORTIZING DEBT SECURITIES
The applicable prospectus supplement will contain a discussion of special
United States federal income tax rules applicable to debt securities that
provide for partial principal payments prior to stated maturity.
UNITED STATES ALIEN HOLDERS
An alien individual who is neither a citizen nor a lawful permanent
resident of the United States may, subject to certain exceptions, be deemed to
be a resident of the United States for U.S. federal income tax purposes by
virtue of being present in the United States on at least 31 days in the calendar
year and for an aggregate of at least 183 days during a three-calendar-year
period ending in the current calendar year (counting for such purposes all of
the days present in the current year, one-third of the days present in the
immediately preceding year and one-sixth of the days present in the second
preceding year). Resident aliens are subject to United States federal income tax
as if they were United States citizens and residents. See "U.S. Holders" above.
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Under present United States federal income and estate tax law and subject
to the discussion of backup withholding below:
(1) payments of principal, premium (if any) and interest (including
OID) by us or any of our paying agents to any holder of a debt
security who or which is a United States Alien Holder will not be
subject to United States federal withholding tax (and, except as
discussed in paragraph (4) below, will not generally be subject
to U.S. federal income tax) if, in the case of premium (if any),
interest or OID, (a) the beneficial owner of the debt security
does not actually or constructively own 10% or more of the total
combined voting power of all classes of our stock entitled to
vote, (b) the beneficial owner of the debt security is not a
controlled foreign corporation that is related to us through
stock ownership, (c) the interest on the debt security is not
contingent interest to which Section 871(h)(4)(A) of the Code is
applicable, and (d) either (i) the beneficial owner of the debt
security certifies to us or our agent, under penalties of
perjury, that it is not a U.S. Holder and provides its name and
address or (ii) a securities clearing organization, bank or other
financial institution that holds customers' securities in the
ordinary course of its trade or business (a "FINANCIAL
INSTITUTION") and holds the debt security certifies to us or our
agent under penalties of perjury that such statement has been
received from the beneficial owner by it or by a financial
institution acting on behalf of the beneficial owner and
furnishes the payor with a copy thereof;
(2) a United States Alien Holder of a debt security will not be
subject to United States federal withholding tax on any gain
realized on the sale or exchange of a debt security;
(3) a debt security held by an individual who at death is not a
citizen or resident of the United States will not be includible
in the individual's gross estate for purposes of the United
States federal estate tax as a result of the individual's death
if the individual did not actually or constructively own 10% or
more of the total combined voting power of all classes of our
stock entitled to vote, the income on the debt security would not
have been effectively connected with a United States trade or
business of the individual at the individual's death and, in the
case of a debt security on which all or a portion of the interest
payments are contingent interest to which Section 871(h)(4)(A) is
applicable, to the extent that the value of such debt security is
not allocable to such contingent interest;
(4) if premium, interest or OID on a debt security of a United States
Alien Holder is effectively connected with the conduct of a
United States trade or business, then such holder, with respect
to such premium, interest or OID, (a) will be exempt from United
States withholding tax (upon such holder's delivery of a properly
completed and periodically updated IRS Form 4224 or successor
form thereto), (b) will be subject to United States federal
income tax in the
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same manner and at the same rates as if such holder were a U.S.
Holder and (c) may be subject, if the United States Alien Holder
is a corporation, to the "branch profits tax" at a 30% rate
(which tax is generally imposed on a foreign corporation on the
actual or deemed repatriation from the United States of earnings
and profits attributable to income that is effectively connected
with the conduct of a U.S. trade or business); and
(5) a United States Alien Holder of a debt security will not be
subject to United States federal income tax on any gain realized
on the sale or exchange of a debt security unless (a) such gain
is effectively connected with the conduct of a United States
trade or business, in which case such holder will be subject to
United States federal income tax on such gain in the same manner
and at the same rates as if such holder were a U.S. Holder and
such holder may be subject to the branch profits tax described in
clause (4)(c) above, (b) subject to certain exceptions, the
United States Alien Holder is an individual who holds the debt
security as a capital asset and is present in the United States
for 183 days or more in the taxable year of the disposition, or
(c) the United States Alien Holder is subject to tax pursuant to
provisions of United States tax law applicable to certain United
States expatriates (including certain former citizens or
residents of the United States).
The payment of premium, interest or OID that qualifies for neither the
withholding exemption set forth in paragraph (1) above nor the withholding
exemption set forth in paragraph (4) above will be subject to U.S. federal
withholding tax at the rate of 30%, unless a U.S. income tax treaty applies to
reduce or eliminate such withholding. To claim the benefit of a tax treaty, a
United States Alien Holder must deliver a properly completed and periodically
updated IRS Form 1001 or successor form.
Treasury regulations that will be effective with respect to payments made
after December 31, 2000 (the "WITHHOLDING REGULATIONS"), will provide
alternative methods for satisfying the certification requirements described in
clause (1)(d) above. The Withholding Regulations also will require, in the case
of debt securities held by a foreign partnership, that (x) such certification
requirements be satisfied by the partners and (y) the partnership provide
certain information, including its U.S. taxpayer identification number. A
look-through rule will apply in the case of tiered partnerships. Under the
Withholding Regulations, a United States Alien Holder who is claiming the
benefits of a treaty may be required to obtain a U.S. taxpayer identification
number and providing certain documentary evidence issued by a foreign
governmental authority to prove residence in the foreign country. Certain
special procedures are provided in the Withholding Regulations for payments
through qualified intermediaries.
BACKUP WITHHOLDING AND INFORMATION REPORTING
U.S. HOLDERS
In general, information reporting requirements will apply to payments of
principal, any premium and interest on a debt security to non-corporate U.S.
Holders, the payment of the pro-
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<PAGE>
ceeds of the sale of a debt security before maturity within the United States to
non-corporate U.S. Holders and the accrual of OID on a Discount Debt Security
with respect to non-corporate U.S. Holders, and "backup withholding" at a rate
of 31% will apply to such payments and to payments of OID if the U.S. Holder
fails to provide an accurate taxpayer identification number or to report all
interest and dividends required to be shown on such U.S. Holder's federal income
tax returns. Holders should consult their tax advisors regarding their
qualification for exemption from backup withholding and the procedure for
obtaining such an exemption if applicable. The amount of any backup withholding
from a payment to a U.S. Holder will be allowed as a credit against such U.S.
Holder's U.S. federal income tax liability and may entitle such U.S. Holder to a
refund, provided that the required information is furnished to the IRS in a
timely manner.
UNITED STATES ALIEN HOLDERS
Backup withholding will generally not apply to payments of principal,
premium (if any) and interest (including OID) made by us or a paying agent to a
United States Alien Holder on a debt security if the certification described in
clause (1)(d) under "United States Alien Holders" above is received, provided
that the payor does not have actual knowledge that the holder is a United States
person. We may be required to report annually to the IRS and to each United
States Alien Holder the amount of interest paid to, and the tax withheld, if
any, with respect to such Holder. These information reporting requirements apply
regardless of whether withholding is required. Copies of the information returns
reporting such withholding may also be made available to the tax authorities in
the country in which the United States Alien Holder resides under the provisions
of an applicable income tax treaty.
Payments of the proceeds from the sale by a United States Alien Holder of a
debt security made to or through a foreign office of a broker will not be
subject to information reporting or backup withholding, except that if the
broker is a United States person, a controlled foreign corporation for United
States tax purposes, a foreign person 50% or more of whose gross income is
effectively connected with a United States trade or business for a specified
three-year period or, effective after December 31, 2000, in certain other cases
specified under the Withholding Regulations, information reporting may apply to
such payments. Payments of the proceeds from the sale of a debt security to or
through the United States office of a broker is subject to information reporting
and backup withholding unless the holder or beneficial owner certifies as to its
non-United States status or otherwise establishes an exemption from information
reporting and backup withholding.
THE SUMMARY OF FEDERAL INCOME TAX CONSEQUENCES SET FORTH ABOVE IS FOR
GENERAL INFORMATION ONLY. YOU SHOULD CONSULT YOUR OWN PERSONAL TAX ADVISORS AS
TO THE PARTICULAR TAX CONSEQUENCES OF THE DEBT SECURITIES TO YOU, INCLUDING THE
APPLICABILITY AND EFFECT OF STATE, FEDERAL, LOCAL, FOREIGN AND OTHER TAX LAWS
AND POSSIBLE CHANGES IN TAX LAW.
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<PAGE>
PLAN OF DISTRIBUTION
We may sell the debt securities in and/or outside the United States: (1)
through underwriters or dealers; (2) directly to a limited number of purchasers
or to a single purchaser; or (3) through agents. The applicable prospectus
supplement with respect to the debt securities will set forth the terms of the
offering of the debt securities, including the name or names of any underwriters
or agents, if any, the purchase price of the debt securities and the proceeds to
us from such sale. In addition, the applicable prospectus supplement will set
forth any delayed delivery arrangements, any underwriting discounts and other
items constituting underwriters' compensation, any initial public offering price
and any discounts or concessions allowed or re-allowed or paid to dealers. Any
initial public offering price and any discount or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the debt securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The debt
securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of debt securities will be named in the
prospectus supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover of such prospectus supplement. Unless otherwise set forth in the
prospectus supplement relating thereto, the obligations of the underwriters to
purchase the offered debt securities will be subject to conditions precedent and
the underwriters will be obligated to purchase all the offered debt securities
if any are purchased.
If dealers are used in the sale of debt securities in respect of which this
prospectus is delivered, we will sell such debt securities to the dealers as
principals. The dealers may then resell such debt securities to the public at
varying prices to be determined by such dealers at the time of resale. The names
of the dealers and the terms of the transaction will be set forth in the
prospectus supplement relating thereto.
The debt securities may be sold through agents we designate from time to
time. Any agent involved in the offer or sale of the debt securities in respect
to which this prospectus is delivered will be named, and any commissions payable
by us to such agent will be set forth, in the prospectus supplement relating
thereto. Unless otherwise indicated in the prospectus supplement, any such agent
will be acting on a best efforts basis for the period of its appointment.
We may sell the debt securities directly to institutional investors or
others, who may be deemed to be underwriters within the meaning of the
Securities Act of 1933, as amended (the "SECURITIES ACT") with respect to any
resale thereof. The terms of any such sales, including the terms of any bidding
or auction process, will be described in the prospectus supplement relating
thereto.
Agents, dealers and underwriters may be entitled under agreements entered
into with us to indemnification by us against certain civil liabilities,
including liabilities under the Securities
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<PAGE>
Act, or to contribution with respect to payments which such agents, dealers or
underwriters may be required to make in respect thereof. Agents, dealers and
underwriters may be our customers, engage in transactions with us, or perform
services for us in the ordinary course of business.
In connection with an offering, certain persons participating in such
offering may engage in transactions that stabilize, maintain or otherwise affect
the price of the debt securities. Specifically, such persons may overallot such
offering, creating a syndicate short position. In addition, such persons may bid
for, and purchase, the debt securities in the open market to cover syndicate
shorts or to stabilize the price of the debt securities. Finally, such persons
may reclaim selling concessions allowed for distributing the debt securities in
an offering, if such persons repurchase previously distributed debt securities
in syndicate covering transactions, in stabilization transactions or otherwise.
Any of these activities may stabilize or maintain the market price of the debt
securities above independent market levels. Such persons are not required to
engage in these activities, and may end any of these activities at any time. The
debt securities may or may not be listed on a national securities exchange. We
cannot assure you as to the future liquidity of the trading market, if any, for
any debt securities issued.
LEGAL MATTERS
Certain legal matters in connection with the debt securities offered hereby
will be passed upon for us by our counsel Wachtell, Lipton, Rosen & Katz, New
York, New York and for any underwriters or agents by Shearman & Sterling, New
York, New York.
EXPERTS
The consolidated financial statements of Borg-Warner Automotive, Inc. as of
December 31, 1998 and December 31, 1997 and for each of the three years in the
period ended December 31, 1998 incorporated in this prospectus by reference from
our Annual Report on Form 10-K for the year ended December 31, 1998, as amended
by the Form 10-K/A filed with the Securities and Exchange Commission on June 27,
1999 have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
The financial statements of NSK-Warner Kabushiki Kaisha as of March 31,
1999 and 1998, and for each of the years in the three-year period ended March
31, 1999, have been incorporated by reference herein in reliance upon the report
of KPMG, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
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<PAGE>
YOU SHOULD RELY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS AND
PROSPECTUS SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
DIFFERENT INFORMATION. WE ARE OFFERING TO SELL THESE SECURITIES ONLY IN
JURISDICTIONS WHERE OFFERS OR SALES ARE PERMITTED.
THE INFORMATION CONTAINED IN THIS PROSPECTUS AND PROSPECTUS SUPPLEMENT IS
ACCURATE ONLY AS OF THE DATE ON THE FRONT COVER OF THIS PROSPECTUS SUPPLEMENT.
==============================================================================
TABLE OF CONTENTS
PROSPECTUS
PAGE
About This Prospectus.................................................. 2
Where You Can Find More Information.................................... 2
Special Note Regarding Forward-Looking Statements...................... 3
The Company............................................................ 4
Risk Factors........................................................... 6
Use of Proceeds........................................................ 10
Ratio of Earnings to Fixed Charges..................................... 10
Description of Debt Securities......................................... 11
Description of Common Stock and Rights................................. 26
Certain U.S. Federal Income Tax Considerations......................... 30
Plan of Distribution................................................... 45
Legal Matters.......................................................... 46
Experts................................................................ 46
===========================================================================
$350,000,000
BORG-WARNER AUTOMOTIVE, INC.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are the estimated expenses of the issuance and distribution
of the securities being registered, all of which will be paid by the Company.
Securities and Exchange Commission Registration fee....... $ 97,300
NYSE and Blue Sky fees and expenses....................... 10,000
Printing and engraving expenses........................... 130,000
Legal fees and expenses................................... 100,000
Trustee fees and expenses................................. 6,000
Accounting fees and expenses.............................. 15,000
Rating Agency fees........................................ 227,500
Miscellaneous............................................. 4,200
-------
Total............................................... $ 590,000
=========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
("DGCL") provides that a corporation has the power to indemnify its officers and
directors against the expenses, including attorney's fees, judgments, fines or
settlement amounts actually and reasonably incurred by them in connection with
the defense of any action by reason of being or having been directors or
officers, if such person shall have acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation, except that if such action shall be in the right of the
corporation, no such indemnification shall be provided as to any claim, issue or
matter as to which such person shall have been judged to have been liable to the
corporation unless and to the extent that the Court of Chancery of the State of
Delaware, or another court in which the suit was brought, shall determine upon
application that, in view of all of the circumstances of the case, such person
is fairly and reasonably entitled to indemnity.
As permitted by Section 102 of the DGCL, the Restated Certificate of
Incorporation of the Company provides that no director shall be liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director other than (i) for breaches of the director's duty of loyalty to the
Company and its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
the unlawful payment of dividends or unlawful stock purchases or redemptions
under Section 174 of the DGCL, or (iv) for any transaction from which the
director derived an improper personal benefit.
The Restated Certificate of Incorporation of the Company provides for
indemnification of its directors and officers to the fullest extent permitted by
the DGCL, and allows the Company to advance or reimburse litigation expenses
upon submission by the director, officer or employee of an undertaking to repay
such advances or reimbursements if it is ultimately determined that
indemnification is not available to such director or officer.
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<PAGE>
ITEM 16. EXHIBITS.
The following documents are filed as a part of this Registration Statement.
EXHIBIT NO. DESCRIPTION OF DOCUMENT
----------- -----------------------
1 Form of Underwriting Agreement. +
3.1 Restated Certificate of Incorporation (incorporated by reference
to Exhibit No. 3.1 to our Quarterly Report on Form 10-Q for the
quarter ended September 30, 1993).
3.2 Certificate of Designation, Preferences and Rights of Series A
Junior Participating Preferred Stock (incorporated by reference
to Exhibit 3.3 to our Annual Report on Form 10-K for the year
ended December 31, 1998.
4.1 Form of Senior Debt Indenture. +
4.2 Form of Senior Debt Security (incorporated by reference to
Exhibit 4.2 to Registration Statement No. 333-66879).
4.3 Form of Subordinated Debt Indenture.
4.4 Form of Subordinated Debt Security.*
4.5 Rights Agreement, dated as of July 22, 1998 between our Company
and ChaseMellon Shareholder Services, L.L.C. (incorporated by
reference to Exhibit 4.1 to our Registration Statement on Form
8-A filed on July 24, 1998).
5 Opinion of Wachtell, Lipton, Rosen & Katz.
12 Computation of Ratio of Earnings to Fixed Charges. +
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Wachtell, Lipton, Rosen & Katz (contained in Exhibit
5).
23.3 Consent of KPMG.
24 Powers of Attorney (included as part of signature page). +
25 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended.
- ----------------
* To be filed by Amendment.
+ Previously filed as an exhibit to the initial Registration Statement.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended;
(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
II-2
<PAGE>
amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c)-(g), (j) Not applicable.
(h) 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.
(i) The undersigned registrant hereby undertakes that:
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<PAGE>
(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 a registration statement in reliance
upon Rule 430A and contained in the 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 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) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned thereunto
duly authorized in the City of Chicago, State of Illinois, on August 31, 1999.
BORG-WARNER AUTOMOTIVE, INC.
By: /s/ John F. Fiedler
---------------------------------------
JOHN F. FIEDLER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to Registration Statement has been signed by the following
persons in the capacities indicated on August 31, 1999.
SIGNATURE TITLE
--------- -----
/s/ John F. Fielder Chairman, Chief Executive Officer, and
- ------------------------------------- Director (Principal Executive Officer)
JOHN F. FIEDLER
/s/ Jeffrey L. Obermayer Acting Treasurer (Principal Financial
- ------------------------------------- Officer)
JEFFREY L. OBERMAYER
/s/ William C. Cline Vice President and Controller
- ------------------------------------- (Principal Accounting Officer)
WILLIAM C. CLINE
* Director
- -------------------------------------
ANDREW F. BRIMMER
* Director
- -------------------------------------
JAMES J. KERLEY
* Director
- -------------------------------------
ALEXIS P. MICHAS
* Director
- -------------------------------------
JERE A. DRUMMOND
* Director
- -------------------------------------
IVAN W. GORR
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<PAGE>
SIGNATURE TITLE
--------- -----
* Director
- -------------------------------------
JOHN RAU
* Director
- -------------------------------------
PAUL E. GLASKE
* Director
- -------------------------------------
WILLIAM E. BUTLER
* Director
- -------------------------------------
PHYLLIS O. BONANNO
/s/ Stephanie C. Bransfield As attorney-in-fact for the officers
- ------------------------------------- and/or directors marked by an asterick.
STEPHANIE C. BRANSFIELD
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<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF DOCUMENT
- ----------- -----------------------
4.3 Form of Subordinated Debt Indenture.
5 Opinion of Wachtell, Lipton, Rosen & Katz.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Wachtell, Lipton, Rosen & Katz (contained in Exhibit 5).
23.3 Consent of KPMG.
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended.
II-7
EXHIBIT 4.3
BORG-WARNER AUTOMOTIVE, INC.
TO
----------------------------------
Trustee
Indenture
Dated as of , 1999
<PAGE>
BORG-WARNER AUTOMOTIVE, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of ____________, 1999
Trust Indenture
Act Section Indenture Section
ss.310(a)(1) .........................................607(a)
(a)(2) .........................................607(a)
(b) .........................................607(b), 608
ss.312(c) .........................................701
ss.313(a) .........................................702
ss.314(a) .........................................703
(a)(4) .........................................1004
(c)(1) .........................................102
(c)(2) .........................................102
(e) .........................................102
ss.315(b) .........................................601
ss.316(a)(last
sentence) .........................................101("Outstanding")
(a)(1)(A) .........................................502, 512
(a)(1)(B) .........................................513
(b) .........................................508
(c) .........................................104(e)
ss.317(a)(1) .........................................503
(a)(2) .........................................504
(b) .........................................1003
ss.318(a) .........................................111
<PAGE>
TABLE OF CONTENTS
Page
PARTIES.................................................................... 1
RECITALS OF THE COMPANY.................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.................................................. 1
Act.......................................................... 2
Additional Amounts........................................... 2
Affiliate.................................................... 2
Agent........................................................ 2
Attributable Indebtedness.................................... 2
Authenticating Agent......................................... 2
Authorized Newspaper......................................... 3
Bank Credit Agreement........................................ 3
Banks........................................................ 3
Bearer Security.............................................. 3
Board of Directors........................................... 3
Board Resolution............................................. 3
Business Day................................................. 3
Capitalized Lease Obligation................................. 3
CEDEL S.A.................................................... 3
Commission................................................... 3
Common Depositary............................................ 3
Company...................................................... 3
Company Request or Company Order............................. 4
Consolidated Net Tangible Assets............................. 4
Consolidated Net Worth....................................... 4
Conversion Date.............................................. 4
Conversion Event............................................. 4
Corporate Trust Office....................................... 4
corporation.................................................. 4
coupon....................................................... 4
Currency..................................................... 5
Currency Agreements.......................................... 5
Current Assets............................................... 5
(i)
<PAGE>
Page
Current Liabilities.......................................... 5
Debt......................................................... 5
Default...................................................... 5
Defaulted Interest........................................... 5
Designated Senior Indebtedness............................... 5
Dollar or $.................................................. 5
Dollar Equivalent of the Currency Unit....................... 5
Dollar Equivalent of the Foreign Currency.................... 5
ECU.......................................................... 5
Election Date................................................ 5
Euroclear.................................................... 5
European Communities......................................... 5
European Monetary System..................................... 5
Event of Default............................................. 6
Exchange Date................................................ 6
Exchange Rate Agent.......................................... 6
Exchange Rate Officer's Certificate.......................... 6
Extension Notice............................................. 6
Extension Period............................................. 6
Federal Bankruptcy Code...................................... 6
Final Maturity............................................... 6
Foreign Currency............................................. 6
Government Obligations....................................... 6
Holder....................................................... 7
Indebtedness................................................. 7
Indenture.................................................... 7
Indexed Security............................................. 7
Industrial Development Bonds................................. 7
interest..................................................... 7
Interest Payment Date........................................ 8
Interest Rate Agreements..................................... 8
Lien......................................................... 8
Market Exchange Rate......................................... 8
Maturity..................................................... 8
Non-payment Event of Default................................. 8
Non-Recourse Indebtedness.................................... 8
Officers' Certificate........................................ 9
Opinion of Counsel........................................... 9
Optional Reset Date.......................................... 9
Original Issue Discount Security............................. 9
Original Stated Maturity..................................... 9
Outstanding.................................................. 9
(ii)
<PAGE>
Page
Paying Agent................................................. 10
Payment Event of Default..................................... 10
Person....................................................... 10
Place of Payment............................................. 10
Predecessor Security......................................... 10
Principal Property........................................... 10
Redemption Date.............................................. 11
Redemption Price............................................. 11
Registered Security.......................................... 11
Regular Record Date.......................................... 11
Repayment Date............................................... 11
Repayment Price.............................................. 11
Reset Notice................................................. 12
Responsible Officer.......................................... 12
Restricted Securities........................................ 12
Sale/Leaseback Transaction................................... 12
Securities................................................... 12
Security Register and Security Registrar..................... 12
Senior Indebtedness.......................................... 12
Significant Subsidiary....................................... 12
Special Record Date.......................................... 12
Stated Maturity.............................................. 12
Subsidiary................................................... 13
Trust Indenture Act or TIA................................... 13
Trustee..................................................... 13
United States................................................ 13
United States person......................................... 13
Valuation Date............................................... 13
Vice President............................................... 13
Voting Stock................................................. 13
Yield to Maturity............................................ 14
SECTION 102. Compliance Certificates and Opinions..................... 14
SECTION 103. Form of Documents Delivered to Trustee................... 15
SECTION 104. Acts of Holders.......................................... 15
SECTION 105. Notices, Etc., to Trustee, Company and Agent............. 17
SECTION 106. Notice to Holders; Waiver................................ 18
SECTION 107. Effect of Headings and Table of Contents................. 19
SECTION 108. Successors and Assigns................................... 19
SECTION 109. Separability Clause...................................... 19
SECTION 110. Benefits of Indenture.................................... 19
SECTION 111. Governing Law............................................ 19
SECTION 112. Legal Holidays........................................... 20
(iii)
<PAGE>
Page
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.......................................... 20
SECTION 202. Form of Trustee's Certificate of Authentication.......... 21
SECTION 203. Securities Issuable in Global Form....................... 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series..................... 23
SECTION 302. Denominations............................................ 27
SECTION 303. Execution, Authentication, Delivery and Dating........... 27
SECTION 304. Temporary Securities..................................... 30
SECTION 305. Registration, Registration of Transfer and Exchange...... 33
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......... 36
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset.................................. 37
SECTION 308. Optional Extension of Stated Maturity.................... 40
SECTION 309. Persons Deemed Owners.................................... 41
SECTION 310. Cancellation............................................. 42
SECTION 311. Computation of Interest.................................. 42
SECTION 312. Currency and Manner of Payments in Respect of Securities. 42
SECTION 313. Appointment and Resignation of Successor Exchange Rate
Agent.................................................... 46
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.................. 47
SECTION 402. Application of Trust Money............................... 49
(iv)
<PAGE>
ARTICLE FIVE
REMEDIES
Page
SECTION 501. Events of Default........................................ 49
SECTION 502. Acceleration of Maturity; Rescission and Annulment....... 51
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................... 52
SECTION 504. Trustee May File Proofs of Claim......................... 53
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities............................................... 54
SECTION 506. Application of Money Collected........................... 54
SECTION 507. Limitation on Suits...................................... 55
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................... 56
SECTION 509. Restoration of Rights and Remedies....................... 56
SECTION 510. Rights and Remedies Cumulative........................... 56
SECTION 511. Delay or Omission Not Waiver............................. 56
SECTION 512. Control by Holders....................................... 57
SECTION 513. Waiver of Past Defaults.................................. 57
SECTION 514. Waiver of Stay or Extension Laws......................... 58
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults....................................... 58
SECTION 602. Certain Rights of Trustee................................ 58
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Securities............................................ 60
SECTION 604. May Hold Securities...................................... 60
SECTION 605. Money Held in Trust...................................... 60
SECTION 606. Compensation and Reimbursement........................... 61
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests.................................... 62
SECTION 608. Resignation and Removal; Appointment of Successor........ 62
SECTION 609. Acceptance of Appointment by Successor................... 64
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business................................................. 65
SECTION 611. Appointment of Authenticating Agent...................... 65
(v)
<PAGE>
Page
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders............. 67
SECTION 702. Reports by Trustee....................................... 67
SECTION 703. Reports by Company....................................... 68
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms..... 68
SECTION 802. Successor Person Substituted............................. 69
SECTION 803. Securities to Be Secured in Certain Events............... 70
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders....... 70
SECTION 902. Supplemental Indentures with Consent of Holders.......... 72
SECTION 903. Execution of Supplemental Indentures..................... 73
SECTION 904. Effect of Supplemental Indentures........................ 73
SECTION 905. Conformity with Trust Indenture Act...................... 73
SECTION 906. Reference in Securities to Supplemental Indentures....... 73
SECTION 907. Notice of Supplemental Indentures........................ 74
SECTION 908. Effect on Senior Indebtedness............................ 74
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest..... 74
SECTION 1002. Maintenance of Office or Agency......................... 74
SECTION 1003. Money for Securities Payments to Be Held in Trust....... 76
SECTION 1004. Statement as to Compliance.............................. 78
SECTION 1005. Additional Amounts...................................... 78
SECTION 1006. Payment of Taxes and Other Claims....................... 79
(vi)
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Page
SECTION 1007. Maintenance of Principal Properties..................... 79
SECTION 1008. Corporate Existence..................................... 80
SECTION 1009. Limitation on Liens..................................... 80
SECTION 1010. Limitation on Sale and Leaseback Transactions........... 81
SECTION 1011. Waiver of Certain Covenants............................. 82
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................ 83
SECTION 1102. Election to Redeem; Notice to Trustee................... 83
SECTION 1103. Selection by Trustee of Securities to Be Redeemed....... 83
SECTION 1104. Notice of Redemption.................................... 84
SECTION 1105. Deposit of Redemption Price............................. 85
SECTION 1106. Securities Payable on Redemption Date................... 85
SECTION 1107. Securities Redeemed in Part............................. 86
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article................................ 87
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities... 87
SECTION 1203. Redemption of Securities for Sinking Fund............... 88
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article................................ 89
SECTION 1302. Repayment of Securities................................. 89
SECTION 1303. Exercise of Option...................................... 89
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable............................................. 90
SECTION 1305. Securities Repaid in Part............................... 91
(vii)
<PAGE>
Page
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance..................................... 91
SECTION 1402. Defeasance and Discharge................................ 92
SECTION 1403. Covenant Defeasance..................................... 92
SECTION 1404. Conditions to Defeasance or Covenant Defeasance......... 93
SECTION 1405. Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions..... 95
SECTION 1406. Reinstatement........................................... 96
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called............... 96
SECTION 1502. Call, Notice and Place of Meetings...................... 96
SECTION 1503. Persons Entitled to Vote at Meetings.................... 97
SECTION 1504. Quorum; Action.......................................... 97
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings................................. 99
SECTION 1506. Counting Votes and Recording Action of Meetings.........100
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Securities Subordinate to Senior Indebtedness...........100
SECTION 1602. Payment over of Proceeds upon Dissolution, etc..........100
SECTION 1603. Suspension of Payment When Senior Indebtedness
in Default..............................................100
SECTION 1604. Payment Permitted If No Default.........................100
SECTION 1605. Subrogation to Rights of Holders of Senior
Indebtedness............................................100
SECTION 1606. Provisions Solely to Define Relative Rights.............100
SECTION 1607. Trustee to Effectuate Subordination.....................100
SECTION 1608. No Waiver of Subordination Provisions...................100
SECTION 1609. Notice to Trustee.......................................100
SECTION 1610. Reliance on Judicial Order or Certificate of
Liquidating Agent.......................................100
SECTION 1611. Rights of Trustee As a Holder of Senior
Indebtedness; Preservation of Trustee's Rights..........100
SECTION 1612. Article Applicable to Paying Agents.....................100
SECTION 1613. No Suspension of Remedies...............................100
SECTION 1614. Trust Moneys Not Subordinated...........................100
TESTIMONIUM .............................................................101
SIGNATURES AND SEALS.......................................................101
FORMS OF CERTIFICATION EXHIBIT A
(viii)
<PAGE>
INDENTURE, dated as of ___________, 1999, between Borg-Warner
Automotive, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal office
at 200 South Michigan Avenue, Chicago, IL 60604, and _______________________, a
national banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein 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 unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), which may be convertible into or exchangeable for any securities
of any person (including the Company), to be issued in one or more series as in
this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
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:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act,
<PAGE>
either directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper", as
used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" has the meaning specified in Section 1005.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means _______________ as agent under the Bank Credit Agreement
and any further agent under the Bank Credit Agreement.
"Attributable Indebtedness" means, with respect to any Sale/Leaseback
Transaction as of any particular time, the present value (discounted at the rate
of interest implicit in the terms of the lease) of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease
(including any period for which such lease has been extended). "Net rental
payments" under any lease for any period means the sum of the rental and other
payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments or similar charges.
"Authenticating Agent" means any Person appointed by the Trustee to
act on
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behalf of the Trustee pursuant to Section 611 to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bank Credit Agreement" means the __________________ dated [date]
between the Company and the Banks as in effect on the date hereof and as such
Agreement may be amended, restated, refinanced, replaced, refunded, supplemented
or otherwise modified from time to time.
"Banks" means the lenders from time to time who are parties to the
Bank Credit Agreement.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Capitalized Lease Obligation" means, with respect to any Person, any
obligation of such Person under a lease of (or other agreement conveying the
right to use) any property (whether real, personal or mixed), which obligation
is required to be classified and accounted for as a capital lease obligation
under GAAP.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres, S.A.,
or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
3
<PAGE>
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any current liabilities which
are by their terms extendible or renewable at the option of the obligor thereon
to a time more than 12 months after the time as of which the amount thereof is
being computed), (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles and (iii)
appropriate adjustments on account of minority interests of other Persons
holding stock of the Company's Subsidiaries, all as set forth on the most recent
balance sheet of the Company and its consolidated Subsidiaries (but, in any
event, as of a date within 150 days of the date of determination) and computed
in accordance with generally accepted accounting principles.
"Consolidated Net Worth" means the amount of total stockholders'
equity shown in the most recent consolidated statement of financial position of
the Company.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank or other public institution of or within the international
banking community for the settlement of transactions, (ii) the ECU both within
the European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office on the date of execution of this Indenture is
located at ___________________________________, except that with respect to
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which, at
any particular time, its corporate agency business shall be conducted, which at
the date hereof is 14 Wall Street, 8th Floor, New York, New York 10005.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
4
<PAGE>
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the ECU, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"Currency Agreements" means any spot or forward foreign exchange
agreements and currency swap, currency option or other similar financial
agreements or arrangements designed to protect against or manage exposure to
fluctuations in foreign currency exchange rates.
"Current Assets" of any Person includes all assets of such Person that
would in accordance with generally accepted accounting principles be classified
as current assets.
"Current Liabilities" of any Person includes all liabilities of such
Person that would in accordance with generally accepted accounting principles be
classified as current liabilities.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under the Bank Credit Agreement and (ii) any other Senior Indebtedness which, at
the time of determination, has an aggregate principal amount outstanding of at
least $____ million and is specifically designated in the instrument evidencing
such Senior Indebtedness as "Designated Senior Indebtedness" by the Company.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 312(f).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established
5
<PAGE>
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 301, a New York Clearing House bank, designated pursuant to Section
301 or Section 313.
"Exchange Rate Officer's Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Treasurer, any Vice President or
any Assistant Treasurer of the Company.
"Extension Notice" has the meaning specified in Section 308.
"Extension Period" has the meaning specified in Section 308.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Final Maturity" has the meaning specified in Section 308.
"Foreign Currency" means any Currency other than Currency of the
United States.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, securities which
are (i) direct obligations of the government which issued the Currency in which
the Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the Currency in which the Securities of such series
are payable, the timely payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of such
government payable in such Currency and are not callable or redeemable at the
option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of
6
<PAGE>
any such Government Obligation held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest or
principal of the Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indebtedness" means, with respect to any Person, without duplication:
(a) all liabilities of such Person for borrowed money (including
overdrafts) or for the deferred purchase price of property or services,
excluding any trade payables and other accrued current liabilities
incurred in the ordinary course of business;
(b) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments;
(c) all obligations, contingent or otherwise, of such Person in
connection with any letters of credit, bankers' acceptances or other
similar facilities;
(d) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even if the rights and remedies of the
seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), but excluding trade payables
arising in the ordinary course of business;
(e) all Capitalized Lease Obligations of such Person;
(f) all obligations of such Person under or in respect of Interest
Rate Agreements or Currency Agreements;
(g) all obligations of such Person under or in respect of commodity
forward contracts or other similar instruments;
(h) all Indebtedness or obligations of such Person under or in
respect of any lease of real or personal property;
(i) all Indebtedness referred to in (but not excluded from) the
preceding clauses (a) through (h) of other Persons and all dividends of
other Persons, the payment of which is secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or with respect to property (including, without
limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of
such Indebtedness (the amount of such obligation being deemed to be the
lesser of the fair market value of such property or asset or the amount of
the obligation so secured); and
(j) all guarantees by such Person of Indebtedness referred to in
this definition of any other Person.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"Industrial Development Bonds" means obligations issued by a state, a
commonwealth, a territory or a possession of the United States of America, or
any political subdivision of any of the foregoing, or the District of Columbia,
the interest on which is excludable from gross income of the holders thereof
pursuant to the provisions of Section 103(a) of the Internal Revenue Code of
1986, as amended (or any similar provision of such Code), as in effect at the
time of the issuance of such obligations.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
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<PAGE>
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Interest Rate Agreements" means any interest rate protection
agreements and other types of interest rate hedging agreements (including,
without limitation, interest rate swaps, caps, floors, collars and similar
agreements) designed to protect against or manage exposure to fluctuations in
interest rates.
"Lien" means any pledge, mortgage, lien, charge, encumbrance or
security interest.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or another principal market for the Currency in question,
or such other quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent, if there is more than one
market for dealing in any Currency by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency shall be that upon
which a non-resident issuer of securities designated in such Currency would
purchase such Currency in order to make payments in respect of such securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Non-payment Event of Default" means any event (other than a Payment
Event of Default) the occurrence of which entitles one or more Persons to
accelerate the maturity of any Designated Senior Indebtedness.
"Non-Recourse Indebtedness" means indebtedness of the Company or any
Subsidiary of the Company in respect of which the recourse of the holder of such
indebtedness, whether direct or indirect and whether contingent or otherwise, is
effectively limited to specified assets, and with respect to which neither the
Company nor any Subsidiary of the
8
<PAGE>
Company provides any credit support.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
acceptable to the Trustee.
"Optional Reset Date" has the meaning specified in Section 307(b).
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Original Stated Maturity" has the meaning specified in Section 308.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder 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
Securities and any coupons appertaining thereto; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have
9
<PAGE>
been presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officers' Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above) of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (iv) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. 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
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium, if
any) or interest, if any, on any Securities on behalf of the Company.
"Payment Event of Default" means any default in the payment of
principal of (or premium, if any) or interest on Designated Senior Indebtedness
beyond any applicable grace period with respect thereto.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
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"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium,
if any) and interest, if any, on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Property" means any manufacturing plant or
warehouse, together with the land upon which it is erected and fixtures
comprising a part thereof, owned by the Company or any Significant Subsidiary
and located in the United States, the gross book value (without deduction of any
reserve for depreciation) of which on the date as of which the determination is
being made is an amount which exceeds 1% of Consolidated Net Tangible Assets,
other than any such manufacturing plant or warehouse or any portion thereof
(together with the land upon which it is erected and fixtures comprising a part
thereof) (i) which is financed by Industrial Development Bonds or (ii) which, in
the opinion of the Board of Directors, is not of material importance to the
total business conducted by the Company and its Subsidiaries, taken as a whole.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
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"Reset Notice" has the meaning specified in Section 307(b).
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any Vice President, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Securities" has the meaning specified in Section 1009.
"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Subsidiary, for a period of more
than three years, of any real or personal property, which property has been or
is to be sold or transferred by the Company or such Subsidiary to such Person in
contemplation of such leasing.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if any, on)
and interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law) and other amounts due
on or in connection with any Indebtedness of the Company, whether outstanding on
the date of this Indenture or hereafter created, incurred or assumed, unless, in
the case of any particular Indebtedness, the instrument creating or evidencing
the same or pursuant to which the same is outstanding expressly provides that
such Indebtedness shall not be senior in right of payment to the Securities.
Without limiting the generality of the foregoing, "Senior Indebtedness" shall
include the principal of (and premium, if any, on) and interest (including
interest accruing after the occurrence of an event of default or after the
filing of a petition initiating any proceeding pursuant to any bankruptcy law)
on all obligations of every nature of the Company from time to time owed to the
Banks under the Bank Credit Agreement. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (A) Indebtedness evidenced by the Securities,
(B) Indebtedness of the Company that is expressly subordinated in right of
payment to any Senior Indebtedness of the Company or the Securities, (C)
Indebtedness of the Company that by operation of law is subordinate to any
general unsecured obligations of the Company, (D) Indebtedness of the Company
that when incurred and without respect to any election under Section 1111(b) of
Title 11, United States Code, were without recourse to the issuer, (E)
Indebtedness of the Company to any Subsidiary, (F) any liability for federal,
state or local taxes or other taxes, owed or owing by the Company and (G) trade
payables owed or owing by the Company.
"Significant Subsidiary" means any subsidiary of the Company which
constitutes a "Significant Subsidiary" as defined in Rule 1-02 of Regulation S-X
under the Exchange Act.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be
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extended pursuant to the provisions of Section 308.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which is owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries, or
by such Person and one or more of its Subsidiaries, or (ii) any partnership or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned. For the purposes
of this definition, "securities having ordinary voting power" means securities
or other equity interests that ordinarily have voting power for the election of
directors, or persons having management power with respect to the Person,
whether at all times or only so long as no senior class of securities has such
voting power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, 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 person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of a corporation (irrespective of
whether or not at the time stock of any other class or
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classes shall have or might have voting power by reason of the happening of any
contingency).
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such covenant or condition has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Fifteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
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"Act" of the Holders signing such instrument or instruments or so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner that the Trustee deems
sufficient. (e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
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so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. Notices, Etc., to Trustee, Company and Agent.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration Division, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
(3) the Agent by the Company, the Trustee or any Holder shall be
sufficient for any purpose hereunder if made, given, furnished or
delivered, in writing to or with the Agent addressed to it at [address], or
at any other address previously furnished in writing to the Company and the
Trustee by the Agent.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in The City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of the first such publication.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any
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published notice may be in an official language of the country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons and, with respect
to any provisions hereof relating to the subordination of the Securities or the
rights of the holders of Senior Indebtedness, the holders of Senior
Indebtedness, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 111. Governing Law.
Unless otherwise provided pursuant to Section 301 with respect to any
term of the Securities of any series denominated and/or payable in a foreign
currency or currency unit, this Indenture and the Securities and coupons shall
be governed by and construed in accordance with the law of the State of New
York. This Indenture is subject to the provisions of the Trust Indenture Act
that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
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SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, 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 Interest Payment Date or Redemption
Date or Repayment Date or sinking fund payment date, or at the Stated Maturity
or Maturity; provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Repayment Date, sinking
fund payment date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution 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 may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If the
forms of Securities or coupons of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
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The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed
or engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
, as Trustee
By
Authorized Officer
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (8) of
Section 301, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
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global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or Section 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
If at any time, (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the Depository
shall no longer be registered or in good standing under the Securities Exchange
Act of 1934, or other applicable statute or regulation and a successor
Depository is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be, or
(ii) the Company determines that the Securities shall no longer be represented
by a global Security or Securities and that the provisions of this Section 203
shall no longer apply to the Securities, then in such event this Section 203
shall no longer be applicable to the Securities and the Company will execute and
the Trustee, upon Company Request, will authenticate and deliver Securities in
definitive registered form, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the global Security or
Securities in exchange for such global Security whereupon the global Security or
Securities shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the global Security or Securities
pursuant to this paragraph shall be registered in such names and issued in such
authorized denominations as the Depository, pursuant to instructions from
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its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Securities to the Persons in whose names such
Securities are so registered.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on any Registered Security on
any Interest Payment Date, or the method by which such date or dates shall
be
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determined, and the basis upon which interest shall be calculated if other
than on the basis of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall be
payable, where any Registered Securities of the series may be surrendered
for registration of transfer, where Securities of the series may be
surrendered for exchange, where Securities of the series that are
convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and, if different than the location specified in Section 106,
the place or places where notices or demands to or upon the Company in
respect of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the Currency in which, and other terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which, the price or prices at which, the Currency in which, and
other terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denomination or denominations in which any Registered
Securities of the series shall be issuable and, if other than denominations
of $5,000, the denomination or denominations in which any Bearer Securities
of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency in which payment of the
principal of (or premium, if any) or interest, if any, on the Securities of
the series shall be payable or in which the Securities of the series shall
be denominated and the particular
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provisions applicable thereto in accordance with, in addition to or in lieu of
any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a Currency other than that in which
such Securities are denominated or stated to be payable, the period or
periods within which (including the Election Date), and the terms and
conditions upon which, such election may be made, and the time and manner
of determining the exchange rate between the Currency in which such
Securities are denominated or stated to be payable and the Currency in
which such Securities are to be so payable, in each case in accordance
with, in addition to or in lieu of any of the provisions of Section 312;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen that shall be
applicable to the Securities of the series;
(16) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of or additions to the Events
of Default or covenants (including any deletions from, modifications of or
additions to Section 1011) of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(18) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer
Securities, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of
like tenor of
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any authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in Section
305, whether Registered Securities of the series may be exchanged for
Bearer Securities of the series (if permitted by applicable laws and
regulations), whether Bearer Securities of the series may be exchanged for
Registered Securities of such series, and the circumstances under which and
the place or places where any such exchanges may be made and if Securities
of the series are to be issuable in global form, the identity of any
initial depository therefor;
(19) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(20) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(21) if Securities of the series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents
or satisfaction of other conditions, the form and/or terms of such
certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(23) whether, under what circumstances and the Currency in which the
Company will pay Additional Amounts as contemplated by Section 1005 on the
Securities of the series to any Holder who is not a United States person
(including any modification to the definition of such term) in respect of
any tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
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(24) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable; and
(25) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the requirements of the Trust
Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the same time,
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to Securities
of any series denominated in Dollars, in the absence of any such provisions, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than the Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman, its President or a Vice President,
under its corporate seal reproduced thereon attested by its Secretary or an
Assistant Secretary. The signature of any of these officers on the Securities or
coupons may be the manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company,
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notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture, dated no earlier than 15 days prior to the earlier of the
date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled. If not all
the Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of
such series such as interest rate, stated maturity, date of issuance and date
from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
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(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in accordance
with this Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights, to general equitable principles and to such other qualifications as
such counsel shall conclude do not materially affect the rights of Holders
of such Securities and any coupons;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities, any coupons and of the
supplemental indentures, if any, have been complied with and that
authentication and delivery of such Securities and any coupons and the
execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such Securities
and any coupons, and has duly taken all necessary corporate action with
respect to such issuance; and
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or by-laws of the Company or
result in any violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other agreement known to such
Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
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No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 310 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as conclusively the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and provided
further that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged the temporary Securities of any series shall in
all respects be
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entitled to the same benefits under this Indenture as definitive Securities of
such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euroclear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 301); and provided further that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL S.A., as the case may be, to request such exchange on his
behalf and delivers to Euroclear or CEDEL S.A., as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and
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CEDEL S.A., the Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL
S.A. on such Interest Payment Date upon delivery by Euroclear and CEDEL S.A. to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other form as may be established pursuant to
Section 301), for credit without further interest thereon on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date and who have each delivered to Euroclear or CEDEL S.A., as the case may be,
a certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forth in Exhibit A-1 to
this Indenture (or in such other form as may be established pursuant to Section
301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section and of the third
paragraph of Section 303 of this Indenture and the interests of the Persons who
are the beneficial owners of the temporary global Security with respect to which
such certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of certification
if such date occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments
of principal (or premium, if any) or interest, if any, owing with respect to a
beneficial interest in a temporary global Security will be made unless and until
such interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
CEDEL S.A. and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company in accordance with Section 1003.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers maintained
in the Corporate Trust Office of the Trustee and in any other office or agency
of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. At all reasonable times, the
Security Register shall be open to inspection by the Trustee. The Trustee is
hereby initially appointed as security registrar (the "Security Registrar") for
the purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of any
authorized denomination and of a like aggregate principal amount, upon surrender
of the Registered Securities to be exchanged at such office or agency. Whenever
any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished to
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them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and provided that
any applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such permanent
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both
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as Bearer Securities and as Registered Securities, as specified as contemplated
by Section 301, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities to be redeemed and ending on the relevant Redemption Date if the
Security for which exchange is requested may be among those selected for
redemption; and provided further that no Bearer Security delivered in exchange
for a portion of a permanent global Security shall be mailed or otherwise
delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities
of that series under Section 1103 or 1203 and ending at the close of business on
(A) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption and (B) if
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Securities of the series are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if Securities of the series
are also issuable as Registered Securities and there is no publication, the
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Registered Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security, or, in case any such mutilated
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security,
pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security for which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or
stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal of
(and
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premium, if any) and interest, if any, on Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen
Security or in exchange for a Security to which a mutilated, destroyed, lost or
stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, or the mutilated, destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.
(a) Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest, if any, on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 309,
to the address of such Person as it appears on the Security Register or (ii)
transfer to an account located in the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, by transfer to an account located outside the
United States maintained by the payee.
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Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL S.A. with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
CEDEL S.A. to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in the Securities of such series (such defaulted
interest and, if applicable, interest thereon herein collectively called
"Defaulted Interest") may be paid by the Company, at its election in each case,
as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each 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 in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given in the manner provided in
Section 106, 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 given, such Defaulted Interest shall be
paid to the Persons in whose name the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following
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clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities 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.
(b) The provisions of this Section 307(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 60 days prior to an Optional Reset Date for such Note. Not later than 40
days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or if there is no such next Optional Reset Date, to the Stated
Maturity Date of such Security (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during the
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
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The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Optional Extension of Stated Maturity.
The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All
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Securities with respect to which the Stated Maturity is extended will bear such
higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any
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depositary, as a Holder, with respect to such global Security or impair, as
between such depositary and owners of beneficial interests in such global
Security, the operation of customary practices governing the exercise of the
rights of such depositary (or its nominee) as Holder of such global Security.
SECTION 310. Cancellation.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures and certification of their disposal delivered to
the Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of Securities.
(a) With respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
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(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee a written election with signature guarantees and in the applicable form
established pursuant to Section 301, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Fourteen or with respect
to which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such transferee). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in Section 312(a). The Trustee shall notify the
Exchange Rate Agent as soon as practicable after the Election Date of the
aggregate principal amount of Registered Securities for which Holders have made
such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such series shall have elected to be paid in
another Currency as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar or Foreign Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange
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Rate in effect on the third Business Day (the "Valuation Date") immediately
preceding each payment date, and such determination shall be conclusive and
binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the Currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar amount to be paid by the Company to the Trustee and by the Trustee or any
Paying Agent to the Holders of such Securities with respect to such payment date
shall be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder
of a Registered Security denominated in any Currency shall have elected to be
paid in another Currency as provided in paragraph (b) above, and a Conversion
Event occurs with respect to such elected Currency, such Holder shall receive
payment in the Currency in which payment would have been made in the absence of
such election; and if a Conversion Event occurs with respect to the Currency in
which payment would have been made in the absence of such election, such Holder
shall receive payment in Dollars as provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of paragraph (h) below
shall be the sum of each amount obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the Conversion
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Date, was a component currency of the relevant currency unit, including,
but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not limited to,
the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more currencies,
having an aggregate Dollar Equivalent value at the Market Exchange Rate on
the date of such replacement equal to the Dollar Equivalent value of the
Specified Amount of such former Component Currency at the Market Exchange
Rate immediately before such division and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency unit,
including, but not limited to, the ECU, a Conversion Event (other than any
event referred to above in this definition of "Specified Amount") occurs
with respect to any Component Currency of such currency unit and is
continuing on the applicable Valuation Date, the Specified Amount of such
Component Currency shall, for purposes of calculating the Dollar Equivalent
of the Currency Unit, be converted into Dollars at the Market Exchange Rate
in effect on the Conversion Date of such Component Currency.
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to clause (13) of Section 301 by which the
written election referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of such Securities denominated or payable
in the relevant Currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee of any such decision or determination.
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In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date. In the event the Company so determines that a Conversion Event has
occurred with respect to the ECU or any other currency unit in which Securities
are denominated or payable, the Company will immediately give written notice
thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will
promptly thereafter give notice in the manner provided for in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange Rate
Agent.
(a) Unless otherwise specified pursuant to Section 301, if and so long
as the Securities of any series (i) are denominated in a Currency other than
Dollars or (ii) may be payable in a Currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent
to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause with respect to the Securities of one or more series,
the Company, by or pursuant to
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a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or
Exchange Rate Agents with respect to the Securities of that or those series (it
being understood that any such successor Exchange Rate Agent may be appointed
with respect to the Securities of one or more or all of such series and that,
unless otherwise specified pursuant to Section 301, at any time there shall only
be one Exchange Rate Agent with respect to the Securities of any particular
series that are originally issued by the Company on the same date and that are
initially denominated and/or payable in the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto and any right to receive Additional Amounts as contemplated by Section
1005) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited
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in trust with the Trustee or any Paying Agent or segregated and held
in trust by the Company and thereafter repaid to the Company, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose an amount in the Currency in
which the Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 611 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
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SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Sixteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of that
series, or any related coupon, when such interest or coupon becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture, and continuance of such default
or breach for a period of 90 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(4) (A) there shall have occurred one or more defaults by the Company
or any Subsidiary in the payment of the principal of Debt (other than the
Securities or
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Non-Recourse Indebtedness) in an aggregate amount in excess of $25 million,
when the same becomes due and payable at the stated maturity thereof, and
such default or defaults shall have continued after any applicable grace
period and shall not have been cured or waived or (B) Debt (other than the
Securities or Non-Recourse Indebtedness) of the Company or any Subsidiary
aggregating in an aggregate amount in excess of $25 million shall have been
accelerated or otherwise declared due and payable, or required to be
prepaid or repurchased (other than by regularly scheduled required
prepayment), prior to the stated maturity thereof and such acceleration
shall not have been rescinded or annulled, or such indebtedness shall not
have been discharged, within 15 days after written notice to the Company by
the Trustee or to the Company and the Trustee by the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities; or
(5) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Significant Subsidiary a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under the Federal Bankruptcy Code
or any other applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or any Significant Subsidiary or of any substantial part of any
of their property, or ordering the winding up or liquidation of any of
their respective affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days; or
(6) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by
the Company or any Significant Subsidiary to the institution of bankruptcy
or insolvency proceedings against any of them, or the filing by any of them
of a petition or answer or consent seeking reorganization or relief under
the Federal Bankruptcy Code or any other applicable federal or state law,
or the consent by the Company or any Significant Subsidiary to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or any Significant Subsidiary or of any substantial part of any of their
respective properties, or the making by the Company or any Significant
Subsidiary of an assignment for the benefit of creditors, or the admission
by any of them in writing of its respective inability to pay their debts
generally as they become due; or
(7) any other Event of Default provided with respect to Securities of
that series.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Securities Outstanding may declare the principal amount of all the Securities to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and, if the Bank Credit Agreement is in
effect, to the Agent, and upon any such declaration such principal amount shall
become immediately due and payable. If an Event of Default specified in Section
501(5) or 501(6) occurs and is continuing, then the principal amount of all the
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)),
(A) all overdue interest, if any, on all Outstanding Securities
of that series (or of all series, as the case may be) and any related
coupons,
(B) all unpaid principal of (and premium, if any) any Outstanding
Securities of that series (or of all series, as the case may be) which
has become due otherwise than by such declaration of acceleration, and
interest on such unpaid principal at the rate or rates prescribed
therefor in such Securities,
(C) interest on overdue interest, if any, at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee,
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its agents and counsel; and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on Securities
of that series (or of all series, as the case may be) which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Securities because of an Event of Default
specified in Section 501(4) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Debt that is
the subject of such Event of Default has been discharged or the holders thereof
have rescinded their declaration of acceleration in respect of such Debt, and
written notice of such discharge or rescission, as the case may be, shall have
been given to the Trustee by the Company and countersigned by the holders of
such Debt or a trustee, fiduciary or agent for such holders, within 30 days
after such declaration of acceleration in respect of the Securities, and no
other Event of Default has occurred during such 30-day period which has not been
cured or waived during such period.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security and any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount then due
and payable on such Securities and coupons for principal (and premium, if any)
and interest, if any, and interest on any overdue principal (and premium, if
any) and on any overdue interest, at the rate or rates prescribed therefor in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any), or such portion of the principal amount of any series of
Original Issue Discount Securities or Indexed Securities as may be
specified in the terms of such series, and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to
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the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article 16, any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Securities or coupons, or both, as the case may be, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
606;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities
and coupons in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons for
principal (and premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series in the case of any Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 501, or, in the
case of any Event of Default described in clause (5) or (6) of Section 501,
the Holders of not less than 25% in principal amount of all Outstanding
Securities, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority or
more in principal amount of the Outstanding Securities of that series in
the case of any Event of Default described in clause (1), (2), (3), (4) or
(7) of Section 501, or, in the case of any Event of Default described in
clause (5) or (6) of Section 501, by the Holders of a majority or more in
principal amount of all Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 501, or of Holders of
all Securities in the case of any Event of Default described in clause (5) or
(6) of Section 501, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2), (3), (4) or (7) of Section 501, or of
Holders of all Securities in the case of any Event of Default described in
clause (5) or (6) of Section 501.
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SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article Fourteen)
and in such Security, of the principal of (and premium, if any) and (subject to
Section 307) interest, if any, on, such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
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SECTION 512. Control by Holders.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, relating to or arising under clause (1), (2),
(3), (4) or (7) of Section 501, and, with respect to all Securities, the Holders
of not less than a majority in principal amount of all Outstanding Securities
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, not relating to or arising under clause (1),
(2), (3), (4) or (7) of Section 501, provided that in each case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
described in clause (1), (2), (3), (4) or (7) of Section 501 (or, in the case of
a default described in clause (5) or (6) of Section 501, the Holders of not less
than a majority in principal amount of all Outstanding Securities may waive any
such past default), and its consequences, except a default
(1) in respect of the payment of the principal of (or premium, if any)
or interest, if any, on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of
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Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of (or premium, if any) or interest, if any, on any Security of
such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series and any related coupons; and provided
further that in the case of any Default of the character specified in Section
501(3) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of
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indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights
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or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a claim prior to the 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 (or premium, if any) or interest, if
any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or (6), the expenses
(including reasonable charges and expense of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
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SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests.
(a) There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
(b) The following indenture shall be deemed to be specifically
described herein for the purposes of clause (i) of the first proviso contained
in TIA Section 310(b): Indenture, dated as of November 1, 1996, between the
Company and the Trustee relating to the Company's 7% Senior Notes due 2006.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
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(2) the Trustee shall cease to be eligible under Section 607(a) and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to the
Holders of Securities of such series in the manner provided for in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in
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Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In case
any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee. In
all such cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series and the Trustee shall give written notice
of such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, and
a copy of such instrument shall be promptly furnished
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to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
and if not an Affiliate of the Trustee having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by federal
or state authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to
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be reimbursed for such payments, subject to the provisions of Section 606.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
, as Trustee
By
as Authenticating Agent
By
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company or the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 15 if
required by TIA Section 313(a).
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SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit to all Holders, in the manner and to the extent provided
in TIA Section 313(c), within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
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(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety (A) shall be a corporation, partnership or trust organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and (B) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the Company's obligation for the due and
punctual payment of the principal of (and premium, if any) and interest, if
any, on all the Securities and the performance and observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(3) the Company or such Person shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
This Section shall only apply to a merger or consolidation in which
the Company is not the surviving corporation and to conveyances, leases and
transfers by the Company as transferor or lessor.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and in the event of any such conveyance or transfer, the Company (which term
shall for this purpose mean the Person named as the "Company" in the first
paragraph of this Indenture or any successor Person which shall theretofore
become such in the manner described in Section 801), except in the case of a
lease, shall be discharged of all obligations and covenants under this Indenture
and the Securities and the coupons and may be dissolved and liquidated.
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SECTION 803. Securities to Be Secured in Certain Events.
If, upon any such consolidation of the Company with or merger of the
Company into any other corporation, or upon any conveyance, lease or transfer of
the property of the Company as an entirety or substantially as an entirety to
any other Person, any Principal Property of the Company or of any Significant
Subsidiary, or any Restricted Securities owned immediately prior thereto, would
thereupon become subject to any Lien, then unless such Lien could be created
pursuant to Section 1009 without equally and ratably securing the Securities,
the Company, prior to or simultaneously with such consolidation, merger,
conveyance, lease or transfer, will, as to such Principal Property or Restricted
Securities, secure the Securities Outstanding hereunder (together with, if the
Company shall so determine, any other Debt of the Company now existing or
hereafter created which is not subordinate to the Securities) equally and
ratably with (or prior to) the Debt which upon such consolidation, merger,
conveyance, lease or transfer is to become secured as to such Principal Property
or Restricted Securities by such Lien, or will cause such Securities to be so
secured; provided that, for the purpose of providing such equal and ratable
security, the principal amount of Original Issue Discount Securities and Indexed
Securities shall mean that amount which would at the time of making such
effective provision be due and payable pursuant to Section 502 and the terms of
such Original Issue Discount Securities and Indexed Securities upon a
declaration of acceleration of the Maturity thereof, and the extent of such
equal and ratable security shall be adjusted, to the extent permitted by law, as
and when said amount changes over time pursuant to the terms of such Original
Issue Discount Securities and Indexed Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related coupons (and if
such covenants are to be
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for the benefit of less than all series of Securities, stating that such
covenants are being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form; provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities pursuant to the requirements of Section
803 or 1009 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 609(b); or
(9) to close this Indenture with respect to the authentication and
delivery of additional series of Securities, to cure any ambiguity, to
correct or supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided such action
shall not adversely affect the interests of the Holders of Securities of
any series and any related coupons in any material respect; or
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(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of (or premium, if
any) or any installment of interest on any Security, or reduce the
principal amount thereof (or premium, if any) or the rate of interest, if
any, thereon, or change any obligation of the Company to pay Additional
Amounts contemplated by Section 1005 (except as contemplated by Section
801(1) and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the option of
any Holder of any Security, or change any Place of Payment where, or the
Currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be), or adversely affect
any right to convert or exchange any Security as may be provided pursuant
to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture,
or reduce the requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
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Section 1011, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
(4) modify any of the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to the Holders thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental
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indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
SECTION 908. Effect on Senior Indebtedness. No supplemental indenture
shall adversely affect the rights of [the Banks] [holders of [Designated] Senior
Indebtedness under Article 16 without the consent of [the Agent] [the
representative of such holders].
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay the principal of (and premium, if any) and interest, if any, on
the Securities of that series in accordance with the terms of the Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of
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that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where Securities of that series
that are convertible or exchangeable may be surrendered for conversion or
exchange, as applicable, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise) (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment; provided, however, that,
if the Securities of that series are listed on any stock exchange located
outside the United States and such stock exchange shall so require, the Company
will maintain a Paying Agent for the Securities of that series in any required
city located outside the United States so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange, where Securities of that series that are
convertible and exchangeable may be surrendered for conversion or exchange, as
applicable and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, and the Company hereby appoints the same
as its agents to receive such respective presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are payable in Dollars, payment of principal of (and
premium, if any) and interest, if any, on any Bearer Security shall be made at
the office of the Company's Paying Agent in The City of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium or
interest, as the case may be, at all offices or agencies outside the United
States maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
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The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Currency other than Dollars or (ii) may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to or on each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
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The Company will cause each Paying Agent (other than the Trustee) for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) and interest, if any, on Securities of such series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal of (or premium, if any) or interest, if any, on the
Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series, or any coupon appertaining thereto, and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or coupon shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
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SECTION 1004. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 1004, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1005. Additional Amounts.
If any Securities of a series provide for the payment of additional
amounts to any Holder who is not a United States person in respect of any tax,
assessment or governmental charge ("Additional Amounts"), the Company will pay
to the Holder of any Security of such series or any coupon appertaining thereto
such Additional Amounts as may be specified as contemplated by Section 301.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal (or premium, if any) or interest, if any, on, or in respect of,
any Security of a series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of a series, such mention shall
be deemed to include mention of the payment of Additional Amounts provided for
by the terms of such series established pursuant to Section 301 to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal (and premium, if any) is
made), and at least 10 days prior to each date of payment of principal (or
premium, if any) or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or Paying Agents,
if other than the Trustee, with an Officers' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal,
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company
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will pay to the Trustee or such Paying Agent the Additional Amounts required by
the terms of such Securities. In the event that the Trustee or any Paying Agent,
as the case may be, shall not so receive the above-mentioned certificate, then
the Trustee or such Paying Agent shall be entitled to (i) assume that no such
withholding or deduction is required with respect to any payment of principal of
(or premium, if any) or interest, if any, on any Securities of a series or
related coupons until it shall have received a certificate advising otherwise
and (ii) to make all payments of principal of (and premium, if any) and
interest, if any, on the Securities of a series or related coupons without
withholding or deductions until otherwise advised. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Significant
Subsidiary or upon the income, profits or property of the Company or any
Significant Subsidiary, and (2) all material lawful claims for labor, materials
and supplies which, if unpaid, might by law become a Lien upon any Principal
Property of the Company or any Significant Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1007. Maintenance of Principal Properties.
The Company will cause all Principal Properties to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent or restrict the sale,
abandonment or other disposition of any of such Principal Properties if such
action is, in the judgment of the Company, desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and not disadvantageous
in any material respect to the Holders.
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SECTION 1008. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company
and any Significant Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise of the Company or any
Significant Subsidiary if the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries as a whole.
SECTION 1009. Limitation on Liens.
The Company will not, and will not permit any Subsidiary of the
Company to, issue, assume or guarantee any Debt if such Debt is secured by a
mortgage, pledge, security interest or lien (a "mortgage" or "mortgages") upon
any Principal Property of the Company or any Subsidiary of the Company or upon
any shares of stock or other stock or other equity interest or indebtedness
(collectively "Restricted Securities") of any Subsidiary of the Company (whether
such property, shares of stock or other equity interest or indebtedness is now
owned or hereafter acquired) which owns any Principal Property, without in any
such case effectively providing that the Securities shall be secured equally and
ratably with (or prior to) such Debt; provided, however, that the foregoing
restrictions shall not apply to:
(a) Mortgages existing on the date the Securities are originally
issued or mortgages provided for under the terms of agreements existing on
such date;
(b) Mortgages on Current Assets securing Current Liabilities;
(c) Mortgages on any property acquired, constructed, altered or
improved by the Company or any Subsidiary of the Company after the date of
the Indenture that are created or assumed contemporaneously with or within
one year after such acquisition (or in the case of property constructed,
altered or improved, after the completion and commencement of commercial
operation of such property, whichever is later) to secure or provide for
the payment of the purchase price or cost thereof, provided that in the
case of any such construction, alteration or improvement the mortgages
shall not apply to any property theretofore owned by the Company or any
Subsidiary of the Company other than (i) the property so altered or
improved and (ii) any theretofore unimproved real property on which the
property so constructed or altered, or the improvement, is located;
(d) Existing mortgages on property acquired (including mortgages on
any property acquired from a Person that is consolidated with or merged
with or into the
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Company or a Subsidiary of the Company) or mortgages outstanding at the
time any Person becomes a Subsidiary of the Company that are not incurred
in connection with such entity becoming a Subsidiary of the Company;
(e) mortgages in favor of the Company or any Subsidiary of the
Company;
(f) mortgages on any property (i) in favor of domestic or foreign
governmental bodies to secure partial, progress, advance or other payments
pursuant to any contract or statute, (ii) securing indebtedness incurred to
finance all or any part of the purchase price or cost of constructing,
installing or improving the property subject to such mortgages including
mortgages to secure Debt of the pollution control or industrial revenue
bond type, or (iii) securing indebtedness issued or guaranteed by the
United States, any State, any foreign country or any department, agency,
instrumentality or political subdivision of any such jurisdiction; and
(g) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage referred to
in the foregoing clause (a), (b), (c), (d), (e) or (f); provided, however,
that the principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such extension, renewal
or replacement, together with the reasonable costs related to such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property that secured
the mortgage so extended, renewed or replaced (plus improvements on such
property).
Notwithstanding the foregoing, the Company and any Subsidiary of the
Company may, without securing the Securities, issue, assume or guarantee secured
Debt (that would otherwise be subject to the foregoing restrictions) in an
aggregate amount that, together with all other such secured Debt and the
aggregate amount of Attributable Indebtedness of the Company and its
Subsidiaries deemed to be outstanding in respect of all Sale/Leaseback
Transactions entered into pursuant to Section 1010 (excluding any such
Sale/Leaseback Transactions the proceeds of which have been applied in
accordance with clauses (2) or (3) of Section 1010), does not exceed 10% of the
Consolidated Net Worth, as shown on a consolidated balance sheet as of a date
not more than 90 days prior to the proposed transaction prepared by the Company
in accordance with generally accepted accounting principles.
SECTION 1010. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any of its Subsidiaries to,
enter into any Sale/Leaseback Transaction with any Person (other than the
Company or a Subsidiary of the Company) unless:
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(1) At the time of entering into such Sale/Leaseback Transaction, the
Company or such Subsidiary would be entitled to incur Debt, in a principal
amount equal to the Attributable Indebtedness with respect to such
Sale/Leaseback Transaction, secured by a mortgage on the property subject
to such Sale/Leaseback Transaction, pursuant to Section 1009 without
equally and ratably securing the Securities pursuant to such provisions;
(2) After the date on which Securities are first issued and within a
period commencing six months prior to the consummation of such
Sale/Leaseback Transaction and ending six months after the consummation
thereof, the Company or such Subsidiary shall have expended for property
used or to be used in the ordinary course of business of the Company or
such Subsidiary (including amounts expended for additions, expansions,
alterations, repairs and improvements thereto) an amount equal to all or a
portion of the net proceeds of such Sale/Leaseback Transaction, and the
Company shall have elected to designate such amount as a credit against
such Sale/Leaseback Transaction (with any such amount not being so
designated to be applied as set forth in clause (3) below); or
(3) During the 12-month period after the effective date of such
Sale/Leaseback Transaction, the Company shall have applied to the voluntary
defeasance or retirement of Securities or any pari passu indebtedness of
the Company an amount equal to the net proceeds of the sale or transfer of
the property leased in such Sale/Leaseback Transaction, which amount shall
not be less than the fair value of such property at the time of entering
into such Sale/Leaseback Transaction (adjusted to reflect any amount
expended by the Company as set forth in clause (2) above), less an amount
equal to the principal amount of such Securities and pari passu
indebtedness voluntarily defeased or retired by the Company within such
12-month period and not designated as a credit against any other
Sale/Leaseback Transaction entered into by the Company or any Subsidiary of
the Company during such period.
SECTION 1011. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 803 or Sections 1006 to 1010,
inclusive, or, as specified pursuant to Section 301(17) for Securities of such
series, in any covenants of the Company added to Article Ten pursuant to Section
301(16) or Section 301(17) in connection with Securities of such series, if the
Holders of at least a majority in principal amount of all Outstanding Securities
affected by such term, provision or condition, by Act of such Holders, waive
such compliance in such instance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the
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Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the
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principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301, notice
of redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued
interest to the Redemption Date payable as provided in
Section 1106, if any,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of
such Security, the holder will receive, without charge, a
new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price
and accrued interest, if any, to the Redemption Date payable
as provided in Section 1106 will become due and payable upon
each such Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to
accrue on and after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with
all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
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(7) that the redemption is for a sinking fund, if such
is the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the Redemption Date or the amount of any such
missing coupon or coupons will be deducted from the
Redemption Price unless security or indemnity satisfactory
to the Company, the Trustee and any Paying Agent is
furnished, and
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are
not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to
redemption on such Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company,
on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the Redemption Price of, and accrued interest, if any, on, all
the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said
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notice, together with all coupons, if any, appertaining thereto maturing after
the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided further that installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
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SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously delivered,
accompany such certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment 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. In the case of
the failure of the Company to deliver such certificate, 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 Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 1202 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) in cash a sum equal to
any interest that will accrue to the date fixed for redemption of Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund
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payment for such series to be made in cash on the next succeeding sinking fund
payment date or, at the request of the Company, shall be applied at any time or
from time to time to the purchase of Securities of such series, by public or
private purchase, in the open market or otherwise, at a purchase price for such
Securities (excluding accrued interest and brokerage commissions, for which the
Trustee or any Paying Agent will be reimbursed by the Company) not in excess of
the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the principal (or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest, if any, on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the
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Holder (or by the Holder's attorney duly authorized in writing), must be
received by the Company at the Place of Payment therefor specified in the terms
of such Security (or at such other place or places or which the Company shall
from time to time notify the Holders of such Securities) not earlier than 45
days nor later than 30 days prior to the Repayment Date. If less than the entire
principal amount of such Security is to be repaid in accordance with the terms
of such Security, the principal amount of such Security to be repaid, in
increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that
is not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by
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all appurtenant coupons maturing after the Repayment Date, such Security may be
paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply to
each series of Securities, and the Company may, at its option, effect defeasance
of the Securities of or within a series under Section 1402, or covenant
defeasance of or within a series under Section 1403 in accordance with the terms
of such Securities and in accordance with this Article.
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SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any related coupons when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003 and with respect to the payment of Additional Amounts,
if any, on such Securities as contemplated by Section 1005, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article Fourteen. Subject to compliance with this Article Fourteen, the Company
may exercise its option under this Section 1402 notwithstanding the prior
exercise of its option under Section 1403 with respect to such Securities and
any related coupons.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Section 803 and Sections 1006 through
1010, and, if specified pursuant to Section 301, its obligations under any other
covenant, with respect to such Outstanding Securities and any related coupons on
and after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any related
coupons shall thereafter be deemed not to be "Outstanding" for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any related coupons, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of reference in any
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such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(3) or Section 501(7) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
related coupons shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a series and any
related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
related coupons, (A) an amount (in such Currency in which such Securities
and any related coupons are then specified as payable at Stated Maturity),
or (B) Government Obligations applicable to such Securities (determined on
the basis of the Currency in which such Securities are then specified as
payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of
principal of and premium, if any, and interest, if any, under such
Securities and any related coupons, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if any) or
installment of interest, if any, and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any related coupons on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any related coupons; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities and
any related coupons and provided further that upon the effectiveness of
this Section 1404, the money or U.S. Government Obligations deposited shall
not be subject to the rights of the holders of Senior Indebtedness pursuant
to the provisions of Article Sixteen. Before such a deposit, the Company
may give to the Trustee, in accordance with Section 1102 hereof, a notice
of its election to redeem all or any portion of such Outstanding Securities
at a future date in accordance with the terms of the Securities of such
series and Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in
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applying the foregoing.
(2) No Default or Event of Default with respect to such Securities or
any related coupons shall have occurred and be continuing on the date of
such deposit or, insofar as paragraphs (5) and (6) of Section 501 are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) No event or condition shall exist that pursuant to the provisions
of Section 1602 or 1603 would prevent the Company from making payments of
the principal of (and premium, if any, on) or interest on the Securities on
the date of such deposit or at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of execution of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
related coupons 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.
(6) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any related coupons 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.
(7) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402
or the covenant defeasance under Section 1403 (as the case may be) have
been complied with.
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SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any related coupons and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any related coupons of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 1404(1) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the
terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any related
coupons.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided
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in Section 1404 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance, as applicable, in accordance with this Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, however, that if the Company makes any
payment of principal of (or premium, if any) or interest, if any, on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in The City of New York or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided for in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
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(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in The City
of New York or in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Person
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that, if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned,
subject to the provisions of the next paragraph, for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
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expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for lack of a quorum the Persons entitled to vote 25% in principal amount of the
Outstanding Securities at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series; provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
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SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Outstanding
Securities of such series held or represented by him (determined as specified in
the definition of "Outstanding" in Section 101); provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
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SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment as provided in this Article to the prior payment
in full of all Senior Indebtedness.
SECTION 1602. Payment over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets or liabilities of the Company, then and in any
such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due on or in respect of all Senior
Indebtedness, or provision shall be made for such payment, before the
Holders of the Securities are entitled to receive any payment or
distribution of any kind or character (other than any payment or
distribution in the form of equity securities or subordinated securities of
the Company or any successor obligor with respect to the Senior
Indebtedness provided for by a plan of reorganization or readjustment that,
in the case of any such subordinated securities, are subordinated in right
of payment to all Senior Indebtedness that may at the time be outstanding
to substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article (such equity
securities or subordinated securities hereinafter being "Permitted Junior
Securities")) on account of principal of (or premium, if any, on) or
interest on the Securities; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than a payment
or distribution in the form of Permitted Junior Securities), by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article 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, ratably according to the aggregate amounts remaining unpaid on
account of 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; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received
any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, in respect of principal
of (and premium, if any) or interest on the Securities before all Senior
Indebtedness is paid in full or payment thereof provided for, then and in
such event such payment or distribution (other than a payment or
distribution in the form of Permitted Junior Securities) shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all
Senior Indebtedness in full, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance, transfer or lease of its properties and assets substantially as
an entirety to another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of the Company for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the conditions
set forth in Article Eight.
SECTION 1603. Suspension of Payment When Senior Indebtedness in
Default.
(a) Unless Section 1602 shall be applicable, upon (1) the occurrence
of a Payment Event of Default and (2) receipt by the Trustee of written notice
of such occurrence, then no payment or distribution of any assets of the Company
of any kind or character shall be made by the Company on account of principal of
(or premium, if any) or interest on the Securities or on account of the purchase
or redemption or other acquisition of Securities unless and until such Payment
Event of Default shall have been cured or waived in writing or shall have ceased
to exist or such Senior Indebtedness shall have been discharged, after which the
Company shall resume making any and all required payments in respect of the
Securities, including any missed payments.
(b) Unless Section 1602 shall be applicable, upon (1) the occurrence
of a Non-payment Event of Default and (2) receipt by the Trustee from the Agent
or any other representative of holders of Designated Senior Indebtedness of
written notice of such occurrence, then no payment or distribution of any assets
of the Company of any kind or character shall be made by the Company on account
of any principal of (or premium, if any) or interest on the Securities or on
account of the purchase or redemption or other acquisition of Securities for a
period ("Payment Blockage Period") commencing on the earlier of the date of
receipt by the Company or the date of receipt by the Trustee of such notice from
the Agent or such other representative unless and until (subject to any blockage
of payments that may then be in effect under paragraph (a) of this Section) (x)
more than 179 days shall have elapsed since receipt of such written notice by
the Company or the Trustee, whichever was earlier, (y) such Non-payment Event of
Default shall have been cured or waived in writing or shall have ceased to exist
or such Designated Senior Indebtedness shall have been discharged or (z) such
Payment Blockage Period shall have been terminated by written notice to the
Company or the Trustee from the Agent or such other representative initiating
such Payment Blockage Period, after which, in the case of clause (x), (y) or
(z), the Company shall resume making any and all required payments in respect of
the Securities, including any missed payments. Notwithstanding any other
provision of this Agreement, only one Payment Blockage Period may be commenced
within any consecutive 365-day period, and no event of default with respect to
Designated Senior Indebtedness which existed or was continuing on the date of
the commencement of any Payment Blockage Period initiated by or behalf of such
Designated Senior Indebtedness shall be, or be made, the basis for the
commencement of a second Payment Blockage Period whether or not within a period
of 365 consecutive days unless such event of default shall have been cured or
waived for a period of not less than 120 consecutive days subsequent to the
commencement of such initial Payment Blockage Period. In no event will a Payment
Blockage Period extend beyond 179 days.
(c) In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
SECTION 1604. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or
in any of the Securities shall prevent 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 1602 or under the conditions
described in Section 1603, from making payments at any time of principal of (and
premium, if any, on) or interest on the Securities.
SECTION 1605. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated 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 of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1606. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as between the Company and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness.
SECTION 1607. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1608. No Waiver of Subordination Provisions.
(a) 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 non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a) of
this Section, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (1) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner for the collection of
Senior Indebtedness; and (4) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 1609. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which 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, the Agent or a holder of Senior Indebtedness or from any trustee,
fiduciary or agent therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to TIA Sections 315(a) through 315(d), shall be
entitled in all respects to assume that no such facts exist; provided, however,
that, if the Trustee shall not have received the notice provided for in this
Section at least three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (and premium, if any) or interest on
any Security), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within three
Business Days prior to such date.
(b) Subject to TIA Sections 315(a) through 315(d), the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent 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.
SECTION 1610. 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 TIA Sections 315(a) through 315(d),
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, 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 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.
SECTION 1611. Rights of Trustee As a 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 which
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. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606.
SECTION 1612. 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 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 1611 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1613. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
SECTION 1614. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of U.S. Government Obligations held in trust under
Article Fourteen hereof by the Trustee (or other qualifying trustee) and which
were deposited in accordance with the terms of Article Fourteen hereof and not
in violation of Section 1603 hereof for the payment of principal of (and
premium, if any) and interest on the Securities shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article Sixteen, and none of the Holders 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.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
BORG-WARNER AUTOMOTIVE, INC.
By:
Name:
Title:
[Seal]
Attest:
--------------------------
By:
Name:
Title:
[Seal]
Attest:
101
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EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States persons(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Borg-Warner Automotive, Inc. or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S.
A-1-1
<PAGE>
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]__________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or
(ii)the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
(Authorized Signatory)
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$]__________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Borg-Warner Automotive,
Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
A-2-1
<PAGE>
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the
Euroclear System]
[CEDEL S.A.]
By
A-2-2
[Wachtell, Lipton, Rosen & Katz Letterhead]
August 31, 1999
Borg-Warner Automotive, Inc.
200 South Michigan Avenue
Chicago, Illinois 60604
Ladies and Gentlemen:
We have acted as special counsel for Borg-Warner Automotive, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-3 (Registration No.
333-84931), as it may be amended (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Securities Act"), for the registration
of the offer and sale by the Company, from time to time pursuant to the
provisions of Rule 415 under the Securities Act, of up to $350 million maximum
aggregate initial offering price of the Company's debt securities (the "Debt
Securities") and any of the Company's Common Stock, par value $.01 per share,
including the preferred share purchase rights attached thereto (the "Common
Stock") issuable solely upon conversion or exchange of any Debt Securities.
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Registration Statement.
The Debt Securities will constitute either senior or subordinated
debt of the Company and will be issued under, in the case of the senior Debt
Securities, an indenture to be between the Company and a bank or trust company
as trustee (the "Senior Debt Indenture"), and in the case of the subordinated
Debt Securities, an indenture to be between the Company and a bank or trust
company as trustee (the "Subordinated Debt Indenture"). The Senior Debt
<PAGE>
Borg-Warner Automotive, Inc.
August 31, 1999
Page 2
Indenture and the Subordinated Debt Indenture are hereinafter referred to
collectively as the "Indentures." The form of Senior Indenture was filed as an
exhibit to the initial Registration Statement and the form of Subordinated
Indenture will be filed as an exhibit to Amendment No. 1 to the Registration
Statement.
In this connection, we have reviewed: (i) the Restated Certificate
of Incorporation and By-Laws of the Company; (ii) the Registration Statement as
filed with the Commission on August 11, 1999 and the form of Amendment No. 1 to
the Registration Statement; (iii) the form of Senior Debt Indenture; (iv) the
form of Subordinated Indenture; (v) certain resolutions adopted by the Board of
Directors of the Company; and (vi) such other documents, records and papers as
we have deemed necessary or appropriate in order to give the opinions set forth
herein. We are familiar with the proceedings heretofore taken by the Company in
connection with the authorization, registration, issuance and sale of the Debt
Securities. We have, with your consent, relied as to the factual matters on
certificates or other documents or information furnished by the Company or its
officers and by governmental authorities and upon such other documents and data
that we have deemed appropriate or necessary as a basis for the opinions
hereinafter expressed. In such review, we have assumed the genuineness of all
signatures, the authenticity of all documents, certificates and instruments
submitted to us as originals, the conformity with the originals of all documents
submitted to us as copies or as retrieved from the Securities and Exchange
Commission's EDGAR database, and the authenticity of the originals of such
latter documents.
Based upon the foregoing, we are of the opinion that, except as
limited by (i) bankruptcy, insolvency, reorganization, moratorium, or other
similar laws now or hereafter in effect relating to creditors' rights generally,
(ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law), (iii) requirements that a claim
with respect to any Debt Securities denominated other than in United States
dollars (or a judgment denominated other than in United States dollars with
respect of such a claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law, and (iv)
governmental authority to limit, delay, or prohibit the making of payments
outside the United States or in foreign currency or currencies, or currency unit
or units, or composite currency or currencies:
1. When duly authorized officers of the Company have taken all
necessary action to approve the form of the Indentures, including the form of
Debt Securities, the Debt Securities and the Indentures will be duly authorized.
2. When the specific terms of a particular Debt Security and its
issuance and sale have been duly established in accordance with the Senior
Indenture or the Subordinated Indenture, as the case may be, and such Debt
Security has been duly executed and authenticated in accordance with the Senior
Indenture or Subordinated Indenture, as the case may be, and any
<PAGE>
Borg-Warner Automotive, Inc.
August 31, 1999
Page 3
supplemental indenture that may be required, and duly issued and sold in
accordance with the applicable definitive purchase, underwriting or similar
agreement approved by the Board of Directors of the Company upon payment of the
consideration therefor provided for therein, such Debt Security will constitute
the valid and binding obligation of the Company.
3. With respect to shares of Common Stock, when certificates
representing the shares of Common Stock have been duly executed, countersigned,
registered and delivered upon conversion or exchange of any Debt Security, in
accordance with the terms of such Debt Security that has been validly issued,
paid for and delivered, or the instrument governing such Debt Security providing
for such conversion or exchange, as approved by the Board of Directors of the
Company, for the consideration approved by the Board of Directors of the Company
(not less than the par value of the Common Stock), the shares of Common Stock
will be legally issued, fully paid and nonassessable.
In connection with the opinions expressed above, we have assumed
with your consent that, at or prior to the time of the delivery of any such Debt
Security, (i) the Board of Directors of the Company, themselves or as so
delegated, shall have approved the specific sale and issuance of such Debt
Security (including the terms thereof) and shall not have modified or rescinded
the duly authorized issuance and sale of such Debt Security, (ii) the
Registration Statement shall have been declared effective and such effectiveness
shall not have been terminated or rescinded, (iii) the final versions of the
Registration Statement, the Subordinated Indenture and the Senior Indenture
shall not be substantially different from the versions we have reviewed, (iv)
the applicable Trustee and the applicable Indentures shall have been qualified
under the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder, (v) (a) the Company shall have full power and authority to execute,
deliver and perform the obligations set forth in the applicable documents, (b)
the applicable documents shall have been duly authorized, executed and delivered
by the Company and (c) the execution and delivery of the applicable documents
and the performance by the Company of its obligations thereunder shall not have
violated, breached or otherwise given rise to a default under the terms or
provisions of its Restated Certificate of Incorporation as then in effect or
By-Laws as then in effect or of any material contract, commitment or other
obligation to which the Company is then a party, and such execution, delivery
and performance shall comply with any requirement or restriction imposed by any
court or governmental body then having jurisdiction over the Company, and (vi)
there shall not have occurred any change in law affecting the validity or
enforceability of such Debt Security. We have also assumed that none of the
terms of any Debt Security to be established subsequent to the date hereof, nor
the issuance and sale of such Debt Security, nor the compliance by the Company
with the terms of such Security, will violate any applicable law or will result
in a violation of any provision of any instrument or agreement then binding upon
the Company, or any restriction imposed by any court or governmental body having
jurisdiction over the Company.
<PAGE>
Borg-Warner Automotive, Inc.
August 31, 1999
Page 4
We are not members of the Bar of any jurisdiction other than the
State of New York and, with your consent, we express no opinion as to the law of
any jurisdiction other than the laws of the State of New York and the General
Corporation Law of the State of Delaware.
We consent to the use of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the prospectus that is a part of the Registration Statement. In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
General Rules and Regulations promulgated thereunder.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz
DAK/jc
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No.1 to
Registration Statement Number 333-84931 of Borg-Warner Automotive, Inc. on Form
S-3 of our report dated January 30, 1999 (February 22, 1999 as to the third
paragraph of Note 14) incorporated by reference in the Annual Report on Form
10-K of Borg-Warner Automotive, Inc. for the year ended December 31, 1998 and to
the reference to us under the heading "Experts" in the Prospectus, which is part
of such Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Chicago, Illinois
August 30, 1999
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No.1 to
Registration Statement Number 333-84931 of Borg-Warner Automotive, Inc. on Form
S-3 of our report dated April 24, 1999 incorporated by reference in the Annual
Report on Form 10-K of Borg-Warner Automotive, Inc. for the year ended December
31, 1998 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of such Registration Statement.
/s/ KPMG
KPMG
Tokyo, Japan
August 30, 1999
-------------------------------------------------------------------
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) ________
----------------------------------------
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
29-2933369
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
One Oxford Center, Suite 1100
301 Grant Street, Pittsburgh, PA 15219
(Address of principal executive offices) (Zip Code)
William H. McDavid
The Chase Manhattan Bank
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
BORG-WARNER AUTOMOTIVE, INC.
(Exact name of obligor as specified in its charter)
ILLINOIS 13-3404508
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
200 South Michigan Avenue
Chicago, Illinois 60604
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Debt Securities
(Title of the indenture securities)
-------------------------------------------------------------------
<PAGE>
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.
Comptroller of the Currency, Washington, D.C.
(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.
NO RESPONSES ARE INCLUDED FOR ITEMS 3-15 OF THIS FORM T-1 BECAUSE THE OBLIGOR IS
NOT IN DEFAULT AS PROVIDED UNDER ITEM 13.
ITEM 16. LIST OF EXHIBITS
----------------
List below all exhibits filed as a part of this Statement of Eligibility.
1. EXHIBIT T1A(A) A copy of the Articles of Association of the Trustee as now in
effect.
2. EXHIBIT T1A(B) A copy of the Certificate of Authority of the Trustee
(previously known as New Trust Company, National Association,) to commence
business. Also included in Exhibit TIA (b) are letters dated November 24,
1997 from the Comptroller of the Currency authorizing the exercise of
fiduciary powers by the Trustee and acknowledging the name change of the
Trustee.
3. EXHIBIT T1A(C) The Authorization of the Trustee to exercise corporate trust
powers is contained in Exhibit T1A(b).
4. EXHIBIT T1B A copy of the By-Laws of the Trustee as now in effect.
5. EXHIBIT T1C Not applicable
6. EXHIBIT T1D The Trustee's consent required by Section 321(b) of the Act.
7. EXHIBIT T1E 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. EXHIBIT T1F Not applicable
9. EXHIBIT T1G Not applicable
2
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chase Manhattan Trust Company, National Association, a national banking
association organized and existing under the laws of the United States of
America , has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Cleveland and Ohio, on the 16th day of August , 1999.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By /s/ Timothy J. Vara
-----------------------
Timothy J. Vara
Vice President
3
<PAGE>
Exhibit T1A(a)
CHASE
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
CHARTER NO. 23548
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to perform any lawful activities of
a national bank, the undersigned do enter into the following Articles of
Association:
FIRST. The title of this Association shall be Chase Manhattan Trust Company,
National Association (the "Association").
SECOND. The main office of the Association shall be in the City of Pittsburgh,
County of Allegheny, Commonwealth of Pennsylvania. The business of the
Association shall be limited to the fiduciary powers and the support of
activities incidental to the exercise of those powers. The Association will
obtain the prior written approval of the Office of the Comptroller of the
Currency before amending these Articles of Association to expand the scope of
its activities and services.
THIRD. The board of directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full board of
directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director, during the full term of his
directorship, shall own common or preferred stock of the Association or of a
holding company owning the Association, with an aggregate par, fair market or
equity value of not less than $1,000. Any vacancy in the board of directors may
be filled by action of the shareholders or a majority of the remaining
directors.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
<PAGE>
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the board of directors
may designate, on the day of each year specified therefore in the by-laws, or if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in event of a legal holiday, on the following banking day, an election
may be held on any subsequent day within 60 days of the day fixed, to be
designated by the board of directors, or, if the directors fail to fix the day,
by shareholders representing two-thirds of the shares issued and outstanding.
Advance notice of the meeting may be duly waived by the sole shareholder in
accordance with 12 C.F.R. 7.2001.
A director may resign at any time by delivering written notice to the board of
directors, its Chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause.
FIFTH. The authorized amount of capital stock of this Association shall be five
million dollars ($5,000,000), divided into fifty thousand (50,000) shares of
common stock of the par value of one hundred dollars ($ 100) each; but said
capital stock may be increased or decreased from time to time, according to the
provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued, or sold, nor
any right to subscription to any thereof other than such, if any, as the board
of directors, in its discretion may from time to time determine and at such
price as the board of directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders.
<PAGE>
SIXTH. The board of directors may appoint one of its members President of this
Association, and one of its members Chairperson of the board or two of its
members as Co-Chairpersons of the board, and shall have the power to appoint one
or more Vice Presidents, a Secretary who shall keep minutes of the directors'
and shareholders' meetings and be responsible for authenticating the records of
the Association, and such other officers and employees as may be required to
transact the business of this Association. A duly appointed officer may appoint
one or more officers or assistant officers if authorized by the board of
directors in accordance with the by-laws.
The board of directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with applicable
law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the power
of shareholders to increase or decrease the capital of the Association in
accordance with law.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial by-laws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal by-laws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a board of directors to
perform.
SEVENTH. The board of directors shall have the power to change the location of
the main office to any other location permitted under applicable law, without
the approval of the shareholders, and shall have the power to establish or
change the location of any branch or branches of the Association to any other
location permitted under applicable law, without the approval of the
shareholders subject to approval by the Office of the Comptroller of the
Currency.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's board of directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE>
Exhibit T1A(b)
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT OF THE UNITED STATES
WASHINGTON, D.C.
Whereas, satisfactory evidence has been presented to the Comptroller of the
Currency that New Trust Company National Association located in Pittsburgh State
of Pennsylvania has complied with all provisions of the statues of the United
States required to be complied with before being authorized to commence the
business of banking as a National Banking Association;
Now, therefore, I hereby certify that the above named association is
authorized to commence the business of banking as a National Banking
Association.
IN TESTIMONY WHEREOF, WITNESS MY SIGNATURE
AND SEAL OF
OFFICE THIS 24TH DAYS OF NOVEMBER 1997
DEPUTY COMPTROLLER OF THE CURRENCY
Charter No.
23548
<PAGE>
- ------------------------------------------------------------------------------
Comptroller of the Currency Exhibit T1A(b)
Administrator of National Banks
- ------------------------------------------------------------------------------
November District
11 14 Avenue of the America's Suite 3900
New York, New York 10036
November 24, 1997
Joseph R. Bielawa
Vice President and Assistant General Counsel
The Chase Manhattan Bank
270 Park Avenue, 39th Floor
New York, New York 10017
Re: Change in Corporate Title
New Trust Company, National Association (Bank)
Pittsburgh, Pennsylvania
Dear Mr. Bielawa:
The Office of the Comptroller of the Currency (OCC) has received your
submission, concerning the change and amendment to Article First of the
above-referenced Bank's Articles of Association. The OCC has amended its records
to reflect that effective November 24, 1997, the corporate title of New Trust
Company, National Association, Charter Number 23548, was changed to "Chase
Manhattan Trust Company, National Association."
You are reminded that the OCC does not approve national bank name changes nor
dies it maintain official titles or the retention of alternate titles. The use
of other titles or the retention of the rights o any previously title is the
responsibility of the Bank's board of directors. Legal counsel should be
consulted to determine whether or not the new title, or any previously used
title, could be challenged by competing institutions under the provisions of
federal state law.
A copy of the amended Article as accepted for filing is enclosed for the Bank's
records.
Very truly yours
/s/ Linda Leickel
Linda Leickel
Senior Licensing Analyst
Charter No.:23548
Control No.: 97 NE 04 010 w/97 NE 01 022
<PAGE>
- ------------------------------------------------------------------------------
Comptroller of the Currency Exhibit T1A(b)
Administrator of National Banks
- ------------------------------------------------------------------------------
November District Licensing
1114 Avenue of the America's Suite 3900 Telephone (212) 790-4055
New York, New York 10036 Fax: (212) 790-4098
November 24, 1997
Mr. Daryl J. Zupan
President and CEO
New Trust Company, National Association
c/o Mellon Bank, N.A., Corporate Trust
Two Mellon Bank Center, Suite 325
Pittsburgh, Pennsylvania 15259
Re: Charter for a National Trust Bank, New Trust Company, National Association.
Pittsburgh, Pennsylvania
ACN 97 NE 01 0022
Dear Mr. Zupan:
The Comptroller of the Currency (OCC) has found that you have met all conditions
imposed by the OCC and completed all steps necessary to commence the business of
banking. Your charter certificate is enclosed. You are authorized to commence
business on November 24, 1997.
This letter also constitutes OCC authorization to exercise fiduciary powers.
You are reminded that several of the standard conditions contained in the
preliminary approval letter dated October 23, 1997 will continue to apply once
the bank opens and by opening, you agree to subject your association to these
conditions of operations. Some of the conditions bear reiteration here:
1. Regardless of the association's FDIC insurance status, the association
is subject to the Change in Bank Control act (12 U.S.C. 1817(j)) by
virtue of its national bank charter. Please refer to item 4 in the list
of standard conditions sent with the preliminary approval letter.
2. The board of directors is responsible for regular review and update of
policies and procedures and for assuring ongoing compliance with them.
This includes maintaining an internal control system that ensures
compliance with the currency reporting and record keeping requirements
of the Bank Secrecy Act (BSA). The board is expected to train its
personnel in BSA procedures and designate one person or a group to
monitor day-to-day compliance.
<PAGE>
Mr. Daryl J. Zupan
Page two
3. The bank will not engage in full commercial powers authorized to
national banks without the OCC's prior approval
Following the commencement of operations, bank management is urged to become
familiar with the requirements of the Securities Exchange Act of 1934 and Part
11 of the Comptroller's regulations relative to the registration of the bank's
equity securities and related periodic reports. These requirements will be
applicable to your bank when the number of shareholders of record is maintained
at 500 or more. Such registration may be subsequently terminated pursuant to the
Act, only when the number of shareholders of record is reduced to fewer than
300.
Should you have any questions regarding the supervision of your bank, please
contact the portfolio manager who will be responsible for OCC's ongoing
supervisory effort at your institution. You will be notified of the name and
number of the appropriate individual in the near future.
Sincerely,
/s/ Micheal G. Tiscia
Micheal G. Tiscia
Licensing Manager
Enclosure
cc: Official File
Field File
<PAGE>
Exhibit T1B
CHASE
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
BY-LAWS
Article I. Meetings of Shareholders
Section 1.1. Annual Meeting. The regular annual meeting of the shareholders to
elect directors and transact whatever other business may properly come before
the meeting, shall be held at the main office of the Association, or such other
place as the board may designate, and at such time in each year as may be
designated by the board of directors. Unless otherwise provided by law, notice
of the meeting may be waived by the Association's sole shareholder in accordance
with 12 C.F.R. ss. 7.2001. If, for any cause, an election of directors is not
made on that date, or in the event of a legal holiday, on the next following
banking day, an election may be held on any subsequent day within 60 days of the
date fixed, to be designated by the board, or, if the directors fail to fix the
date, by shareholders representing two thirds of the shares issued and
outstanding.
Section 1.2. Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by a majority of the board of directors or by any one or more
shareholders owning, in the aggregate, not less than twenty-five percent of the
stock of the Association or by the Chairperson of the board of directors or the
President. Unless otherwise provided by law, advance notice of a special meeting
may be waived by the Association's Sole Shareholder in accordance with 12 C.F.R.
ss. 7.2001.
Section 1.3. Nominations of Directors. Nominations for election to the board of
directors may be made by the board of directors or by any stockholder of any
outstanding class of capital stock of the Association entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of the
existing management of the Association, shall be made in writing and shall be
delivered or mailed to the President of the Association and to the Comptroller
of the Currency, Washington, D.C., not less than 14 days nor more than 50 days
prior to any meeting of shareholders called for the election of directors,
provided, however, that if less than 21 days' notice of the meeting is given to
shareholders, such nomination shall be mailed or delivered to the President of
the Association and to the Comptroller of the Currency not later than the close
of business on the seventh (7th) day following the day on which the notice of
meeting was mailed. Such notification shall contain the following information to
the extent known to the notifying shareholder.
(1) The name and address of each proposed nominee.
(2) The principal occupation of each proposed nominee.
<PAGE>
(3) The total number of shares of capital stock of the Association that
will be voted for each proposed nominee.
(4) The name and residence address of the notifying shareholder.
(5) The number of shares of capital stock of the Association owned by the
notifying shareholder.
Nominations not made in accordance herewith may, in his/her discretion, be
disregarded by the Chairperson of the meeting, and upon his/her instructions,
the vote tellers may disregard all votes cast for each such nominee.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders
by proxies duly authorized in writing, but no officer or employee of this
Association shall act as proxy. Proxies shall be valid only for one meeting to
be specified therein, and any adjournments of such meeting. Proxies shall be
dated and filed with the records of the meeting. Proxies with rubber stamped
facsimile signatures may be used and unexecuted proxies may be counted upon
receipt of a confirming telegram from the shareholder. Proxies meeting above
requirements submitted at any time during a meeting shall be accepted.
Section 1.5 Quorum. A majority of the outstanding capital stock, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law, or by the shareholders or directors pursuant
to Section 10.2, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held, as adjourned, without further notice. A
majority of the votes cast shall decide every question or matter submitted to
the shareholders at any meeting, unless otherwise provided by law or by the
Articles of Association, or by the shareholders or directors pursuant to Section
10.2. Any action required or permitted to be taken by the shareholders may be
taken without a meeting by unanimous written consent of the shareholders to a
resolution authorizing the action. The resolution and the written consent shall
be filed with the minutes of the proceedings of the shareholders.
Article II. Directors
Section 2.1. Board of Directors. The board of directors ("board") shall have the
power to manage and administer the business and affairs of the Association.
Except as expressly limited by law, all corporate powers of the Association
shall be vested in and may be exercised by the board.
Section 2.2. Number. The board shall consist of not less than five nor more than
twenty-five persons, the exact number within such minimum and maximum limits to
be fixed and determined from time to time by resolution of a majority of the
full board or by resolution of a majority of the shareholders at any meeting
thereof; provided, however, that a majority of the full board may not increase
the number of directors to a number which: (1) exceeds by more than two the
number of directors last elected by shareholders where such number was 15 or
less; and (2) exceeds by more than four the number of directors last elected by
shareholders where such number was 16 or more, but in no event shall the number
of directors exceed 25.
<PAGE>
Section 2.3. Organization Meeting. The Secretary shall notify the
directors-elect of their election and of the time at which they are required to
meet at the main office of the Association to organize the new board and elect
and appoint officers of the Association for the succeeding year. Such meeting
shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within 30 days thereof. If, at the time fixed for such
meeting, there shall not be a quorum, the directors present may adjourn the
meeting, from time to time, until a quorum is obtained.
Section 2.4. Regular Meetings. The time and location of regular meetings of the
board shall be set by the board. Such meetings may be held without notice. Any
business may be transacted at any regular meeting. The board may adopt any
procedures for the notice and conduct of any meetings as are not prohibited by
law.
Section 2.5. Special Meetings. Special meetings of the board may be called at
the request of the Chairperson or Co-Chairperson of the board, the President, or
three or more directors. Each member of the board shall be given notice stating
the time and place, by telegram, telephone, letter or in person, of each such
special meeting at least one day prior to such meeting. Any business may be
transacted at any special meeting.
Section 2.6. Action by the Board. Except as otherwise provided by law, corporate
action to be taken by the board shall mean such action at a meeting of the
board. Any action required or permitted to be taken by the board or any
committee of the board may be taken without a meeting if all members of the
board or the committee consent in writing to a resolution authorizing the
action. The resolution and the written consents thereto shall be filed with the
minutes of the proceedings of the board or committee. Any one or more members of
the board or any committee may participate in a meeting of the board or
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same
time. Participation by such means shall constitute presence in person at such
meeting.
Section 2.7. Waiver of Notice. Notice of a special meeting need not be given to
any director who submits a signed waiver of notice, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to him or her.
Section 2.8. Quorum and Manner of Acting. Except as otherwise required by law,
the Articles of Association or these by-laws, a majority of the directors shall
constitute a quorum for the transaction of any business at any meeting of the
board and the act of a majority of the directors present and voting at a meeting
at which a quorum is present shall be the act of the board. In the absence of a
quorum, a majority of the directors present may adjourn any meeting, from time
to time, until a quorum is present and no notice of any adjourned meeting need
be given. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called.
<PAGE>
Section 2.9. Vacancies. In the event a majority of the full board increases the
number of directors to a number which exceeds the number of directors last
elected by shareholders, as permitted by Section 2.2, directors may be appointed
to fill the resulting vacancies by vote of such majority of the full board. In
the event of a vacancy in the board for any other cause, a director may be
appointed to fill such vacancy by vote of a majority of the remaining directors
then in office.
Section 2.10. Removal of Directors. The vacancy created by the removal of a
director pursuant to this Section may be filled by the board in accordance with
Section 2.9 of these by-laws or by the shareholders.
Article III. Committees
Section 3.1. Executive Committee. There may be an executive committee consisting
of the Chairperson or Co-Chairperson of the board and not less than two other
directors appointed by the board annually or more often. Subject to the
limitations in Section 3.4(g) of these by-laws, the executive committee shall
have the maximum authority permitted by law.
Section 3.2. Audit Committee. There may be an audit committee composed of not
less than two directors, exclusive of any active officers, appointed by the
board annually or more often, whose duty it shall be to make an examination at
least once during each calendar year and within fifteen months of the last
examination into the affairs of the Association, or cause continuous suitable
examinations to be made, by auditors responsible only to the board, and to
report the results of any such examinations in writing to the board from time to
time. Such examinations shall include audits of the fiduciary business of the
Association as may be required by law or regulation.
Section 3.3. Other Committees. The board may appoint, from time to time, other
committees of one or more persons, for such purposes and with such powers as the
board may determine.
Section 3.4. General. (a) Each committee shall elect a Chairperson from among
the members thereof and shall also designate a Secretary of the committee, who
shall keep a record of its proceedings.
(b) Vacancies occurring from time to time in the membership of any
committee shall be filled by the board for the unexpired term of the member
whose departure causes such vacancy. The board may designate one or more
alternate members of any committee, who may replace any absent member or members
at any meeting of such committee.
(c) Each committee shall adopt its own rules of procedure and shall meet
at such stated times as it may, by resolution, appoint. It shall also meet
whenever called together by its Chairperson or the Chairperson of the board.
(d) No notice of regular meetings of any committee need be given. Notice
of every special meeting shall be given either by mailing such notice to each
member of such committee at his or her address, as the same appears in the
records of the Association, at least two days before the day of such meeting, or
by notifying each member on or before the day of such
<PAGE>
meeting by telephone or by personal notice, or by leaving a written notice at
his or her residence or place of business on or before the day of such meeting.
Waiver of notice in writing of any meeting, whether prior or subsequent to such
meeting, or attendance at such meeting, shall be equivalent to notice of such
meeting. Unless otherwise indicated in the notice thereof, any and all business
may be transacted at any special meeting.
(e) All committees shall, with respect to all matters, be subject to the
authority and direction of the board and shall report to it when required.
(f) Unless otherwise required by law, the Articles of Association or these
by-laws, a quorum at any meeting of any committee shall be one-third of the full
membership and present shall be the act of the committee.
(g) No committee shall have authority to take any action which is
expressly required by law or regulation to be taken at a meeting of the board or
by a specified proportion of directors.
Article IV. Officers and Employees
Section 4.1. Chairperson of the Board. The board shall appoint one of its
members to be the Chairperson of the board, or two persons to serve as
Co-Chairperson of the board to serve at its pleasure. Such person shall preside
at all meetings of the board. The Chairperson or Co-Chairpersons of the board
shall supervise the carrying out of the policies adopted or approved by the
board; shall have general executive powers, as well as the specific powers
conferred by these by-laws; and shall also have and may exercise such further
powers and duties as from time to time may be conferred upon, or assigned by the
board.
Section 4.2. President. The board may appoint one of its members to be the
President of the Association. In the absence of the Chairperson or
Co-Chairpersons, the President shall preside at any meeting of the board. The
President shall have general executive powers, and shall have and may exercise
any and all other powers and duties pertaining by law, regulation, or practice
to the office of President, or imposed by these by-laws. The President shall
also have and may exercise such further powers and duties as from time to time
may be conferred, or assigned by the board.
Section 4.3. Vice President. The board may appoint one or more Vice Presidents.
Each Vice President shall have such powers and duties as may be assigned by the
board.
Section 4.4. Secretary. The board shall appoint a Secretary, Cashier, or other
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these by-laws; shall be custodian of the
corporate seal, records, documents and papers of the Association; shall provide
for the keeping of proper records of all transactions of the Association; shall
have and may exercise any and all other powers and duties pertaining by law,
regulation or practice, to the office of Cashier, or imposed by these by-laws;
and shall also perform such other duties as may be assigned from time to time,
by the board.
Section 4.5. Other Officers. The board may appoint one or more Assistant Vice
Presidents, one or more Trust Officers, one or more Assistant Secretaries, one
or more Assistant Cashiers, one or
<PAGE>
more Managers and Assistant Managers of branches and such other officers and
attorneys in fact as from time to time may appear to the board to be required or
desirable to transact the business of the Association. Such officers shall
respectively exercise such powers and perform such duties as pertain to their
several offices, or as may be conferred upon, or assigned to, them by the board,
the Chairperson or Co-Chairpersons of the board, or the President. The board may
authorize an officer to appoint one or more officers or assistant officers.
Section 4.6. Resignation. An officer may resign at any time by delivering notice
to the Association. A resignation is effective when the notice is given unless
the notice specifies a later effective date.
Article V. Fiduciary Activities
Section 5.1. Trust Committee. There shall be a Trust Committee of this
Association composed of four or more members, who shall be capable and
experienced officers or directors of the Association. The Committee is charged
with the responsibility for the investment, retention, or disposition of assets
held in accounts with respect to which the Association has investment authority;
for the review of the assets of accounts for which the Association has
investment authority promptly after the acceptance of such an account and at
least once during every calendar year thereafter to determine the advisability
of retaining or disposing of such assets; for the determination of the manner in
which proxies received for accounts for which the Association has responsibility
for the voting of proxies shall be voted; for the determination of all
substantial questions involving discretionary authority of the Association of a
non-investment nature, including, but not limited to, distribution of principal
and/or income in respect of any account; for providing advice as to the
investment, retention, or disposition of assets in investment advisory accounts
maintained by the Association; for the making of such reports as this board
shall require; and for such other responsibilities as may be assigned by this
board. The Trust Committee, in discharging its aforementioned responsibilities,
may authorize officers of the Association to exercise such powers and under such
conditions as the Committee may from time to time prescribe.
Section 5.2. Trust Investments. Funds held in a fiduciary capacity shall be
invested according to the instrument establishing the fiduciary relationship and
local law. Where such instrument does not specify the character and class of
investments to be made and does not vest in the Association a discretion in the
matter, funds held pursuant to such instrument shall be invested in investments
in which corporate fiduciaries may invest under applicable law.
Section 5.3. Trust Audit Committee. The board shall appoint a committee of at
least two directors, exclusive of any active officer of the association, which
shall, at least once during each calendar year make suitable audits of the
association's fiduciary activities or cause suitable audits to be made by
auditors responsible only to the board, and at such time shall ascertain whether
fiduciary powers have been administered according to law, Part 9 of the
Regulations of the Comptroller of the Currency, and sound fiduciary principles.
<PAGE>
Section 5.4. Fiduciary Files. There shall be maintained by the association all
fiduciary records necessary to assure that its fiduciary responsibilities have
been properly undertaken and discharged.
Article VI. Stock and Stock Certificates
Section 6.1. Transfers. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his or her shares, succeed to all rights of the prior
holder of such shares.The board may impose conditions upon the transfer of the
stock reasonably calculated to simplify the work of the Association with respect
to stock transfers, voting at shareholder meetings, and related matters and to
protect it against fraudulent transfers.
Section 6.2. Stock Certificates. Certificates of stock shall bear the signature
of the Chairperson or Co-Chairpersons of the board or President (which may be
engraved, printed or impressed), and shall be signed manually or by facsimile
process by the Secretary, Assistant Secretary, Cashier, Assistant Cashier, or
any other officer appointed by the board for that purpose, to be known as an
authorized officer, and the seal of the Association shall be engraved thereon.
Each certificate shall recite on its face that the stock represented thereby is
transferable only upon the books of the Association properly endorsed. In case
any such officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such before such certificate is
issued, it may be issued by the Association with the same effect as if such
officer had not ceased to be such at the time of its issue. The corporate seal
may be a facsimile, engraved or printed.
Article VII. Corporate Seal
Section 7.1. Corporate Seal. The Chairperson, the President, the Cashier, the
Secretary or any Assistant Cashier or Assistant Secretary, or other officer
thereunto designated by the board, shall have authority to affix the corporate
seal to any document requiring such seal, and to attest the same. Such seal
shall be substantially in the following form: A circle, with the words "Chase
Manhattan Trust Company, National Association" within such circle.
Article VIII. Miscellaneous Provisions
Section 8.1. Fiscal Year. The fiscal year of the Association shall be the
calendar year.
Section 8.2. Execution of Instruments. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or
<PAGE>
accepted on behalf of the Association by the Chairperson or Co-Chairpersons of
the board, or the President, or any Vice Chairperson, or any Managing Director,
or any Vice President, or any Assistant Vice President, or the Chief Financial
Officer, or the Controller, or the Secretary, or the Cashier, or, if in
connection with exercise of fiduciary powers of the Association, by any of those
officers or by any Trust Officer. Any such instruments may also be executed,
acknowledged, verified, delivered or accepted on behalf of the Association in
such other manner and by such other officers as the board may from time to time
direct. The provisions of this Section 8.2 are supplementary to any other
provision of these by-laws.
Section 8.3. Records. The Articles of Association, the by-laws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for that purpose. The minutes of each meeting shall be signed by the Secretary,
Cashier or other officer appointed to act as Secretary of the meeting.
Section 8.4. Corporate Governance Procedures. To the extent not inconsistent
with applicable Federal banking law, bank safety and soundness or these by-laws,
the corporate governance procedures found in the Delaware General Corporation
Law shall be followed by the Association.
Article IX. Indemnification
Section 9.1. Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or an officer of the Association or is or was serving at the request of
the Association as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Association to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Association to provide broader indemnification rights than such law permitted
the Association to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that,
except as provided in Section 9.3 of these by-laws with respect to proceedings
to enforce rights to indemnification, the Association shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by the
board.
<PAGE>
Section 9.2. Right to Advancement of Expenses. The right to indemnification
conferred in Section 9.1 of these by-laws shall include the right to be paid by
the Association the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Association of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 9.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections 9.1 and 9.2 of these by-laws shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
Section 9.3. Right of Indemnitee to Bring Suit. If a claim under Section 9.1 or
9.2 of these by-laws is not paid in full by the Association within sixty (60)
days after a written claim has been received by the Association except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the Association to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Association to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (1) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (2) any suit brought by the Association to recover an
advancement of expenses pursuant to the terms of an undertaking, the Association
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Association
(including the board, the Association's independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Association (including the board, the Association's independent legal counsel,
or its shareholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Association to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article IX or otherwise shall be on the Association.
<PAGE>
Section 9.4. Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article IX shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Association's Articles of Association, by-laws, agreement, vote of
shareholders or disinterested directors or otherwise.
Section 9.5. Insurance. The Association may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Association or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Association would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Section 9.6. Indemnification of Employees and Agents of the Association. The
Association may, to the extent authorized from time to time by the board, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Association to the fullest extent of the provisions of this Article
IX with respect to the indemnification and advancement of expenses of directors
and officers of the Association.
Article X. By-laws
Section 10.1. Inspection. A copy of the by-laws, with all amendments, shall at
all times be kept in a convenient place at the main office of the Association,
and shall be open for inspection to all shareholders during banking hours.
Section 10.2. Amendments. The by-laws may be amended, altered or repealed, at
any regular meeting of the board by a vote of a majority of the total number of
the directors except as provided below. The Association's shareholders may amend
or repeal the by-laws even though the by-laws may be amended or repealed by its
board.
<PAGE>
EXHIBIT T1D
Consent for Records of Governmental Agencies
to be Made Available to the Commision
-------------------------------------
The undersigned, Chase Manhattan Trust Company, National Association,
Pittsburgh, Pennsylvania pursuant to Section 321(b) of The Trust Indenture Act
of 1939, hereby authorizes the Board of Governors of the Federal Reserve System,
the Federal Reserve Banks, the Treasury Department, the Comptroller of the
Currency and the Federal Deposit Insurance Corporation, under such conditions as
they may prescribe, to make available to the Commision such reports, records or
other information as they may have available with respect to the undersigned as
a prospective trustee under an indenture to be qualified under the aforesaid
Trustee Indenture Act of 1939 and to make through their examiners or other
employees for the use of the Commision, examinations of the undersigned
prospective Trustee.
The undersigned also, pursuant to Section 321(b) of said Trust Indenture
Act of 1939, consents that reports of examination by the Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Commission upon request therefor.
Dated this 16th day of August, 1999.
Chase Manhattan Trust Company,
National Association
By: /s/ Timothy J. Vara
Timothy J. Vara
Vice President
<PAGE>
EXHIBIT T1E
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
STATEMENT OF CONDITION
JUNE 30, 1999
($000)
------
ASSETS
Cash and Due From Banks $ 11,056
Securities Available for Sale 4,847
Premises and Fixed Assets 499
Intangible Assets 156,549
-------
Total Assets 172,951
=======
LIABILITIES
Sundry Liabilities and Accrued Expenses $ 3,244
---------
STOCKHOLDER'S EQUITY
Common Stock $ 5,000
Surplus 156,892
Retained Earnings 7,815
-----
Total Stockholder's Equity $ 169,707
---------
Total Liabilities and Stockholder's Equity $ 172,951
=========
