<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 15 , 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ABC RAIL PRODUCTS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 3462, 3743 36-3498749
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION CLASSIFICATION CODE NUMBERS) IDENTIFICATION NO.)
OF INCORPORATION OR
ORGANIZATION)
200 SOUTH MICHIGAN AVENUE
SUITE 1300
CHICAGO, ILLINOIS 60604
312-322-0360
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
D. CHISHOLM MACDONALD, SENIOR VICE PRESIDENT
200 SOUTH MICHIGAN AVENUE
SUITE 1300
CHICAGO, ILLINOIS 60604
312-322-0360
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES OF COMMUNICATIONS TO:
GARY T. JOHNSON, ESQ. THOMAS J. MURPHY, ESQ.
JONES, DAY, REAVIS & POGUE MCDERMOTT, WILL & EMERY
77 WEST WACKER DRIVE 227 WEST MONROE STREET
CHICAGO, ILLINOIS 60601-1692 CHICAGO, ILLINOIS 60606-5096
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective as determined by
market conditions and other factors.
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
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF REGISTERED PER SECURITY OFFERING PRICE REGISTRATION
SECURITIES TO BE REGISTERED (1)(2) (1) (1)(2) FEE (3)
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<S> <C> <C> <C> <C>
Subordinated Debt Securities and Common
Stock, par value $0.01 (including
preferred share purchase rights).......... $100,000,000 $30,304
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</TABLE>
(1) The amount to be registered, the proposed maximum offering price per
security and the proposed maximum aggregate offering price for each class
of security being registered have been omitted in accordance with the
General Instructions to Form S-3.
(2) In no event will the aggregate initial offering price of the Subordinated
Debt Securities (excluding accrued interest) and Common Stock issued under
this Registration Statement exceed $100,000,000.
(3) The amount of the registration fee has been calculated in accordance with
Rule 457(o) under the Securities Act of 1933.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED NOVEMBER 15, 1996
PROSPECTUS
ABC RAIL PRODUCTS CORPORATION
SUBORDINATED DEBT SECURITIES
COMMON STOCK
ABC Rail Products Corporation, a Delaware corporation (the "Company") may
offer, from time to time, (i) its Subordinated Debt Securities (the "Debt
Securities") and/or (ii) shares of its Common Stock, par value $0.01 (the
"Common Stock"), at prices and on terms to be determined when an agreement to
sell is made or at the time or times of sale, as the case may be. The Debt
Securities and the Common Stock may be issued in one or more series or
issuances, as the case may be, and the aggregate initial offering price thereof
will not exceed $100,000,000. The Debt Securities and the Common Stock are
collectively referred to herein as the "Securities."
This Prospectus will be supplemented by an accompanying prospectus supplement
or supplements ("Prospectus Supplement") that will set forth, in the case of
any Debt Securities for which this Prospectus is being delivered ("Offered Debt
Securities"), the form in which such Debt Securities are to be issued and the
designation thereof, their aggregate principal amount, rate or rates and times
of payment of interest, maturity or maturities, their purchase price or prices
and initial offering price or prices, redemption or repurchase provisions, if
any, and other specific terms of such Debt Securities and, in the case of any
Common Stock for which this Prospectus is being delivered ("Offered Stock"),
the number of shares of such Common Stock and their purchase price and the
initial public offering price or prices. See "Description of the Debt
Securities" and "Description of Capital Stock" herein.
The Common Stock of the Company is listed on the Nasdaq National Market under
the symbol "ABCR." Unless otherwise specified in the applicable Prospectus
Supplement, the Offered Stock will be listed, subject to notice of issuance, on
the Nasdaq National Market.
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FOR INFORMATION CONCERNING CERTAIN FACTORS RELATING TO THIS OFFERING, SEE
"RISK FACTORS," AT PAGE 3 OF THIS PROSPECTUS.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------
The Company may sell the Securities to or through underwriters, dealers or
agents, or directly to one or more purchasers. The Prospectus Supplement will
set forth the names of underwriters or agents, if any, any applicable
commissions or discounts and the net proceeds to the Company from any such
sale. See "Plan of Distribution" for possible indemnification arrangements for
underwriters, dealers and agents.
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The date of this Prospectus is , 1996.
<PAGE>
IN CONNECTION WITH THIS OFFERING THE UNDERWRITERS MAY, IF APPLICABLE, OVER-
ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF
THE CLASS OR SERIES OF THE SECURITIES OFFERED HEREBY AT A LEVEL ABOVE THAT
WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE
EFFECTED ON THE NASDAQ NATIONAL MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
IN CONNECTION WITH THIS OFFERING, CERTAIN UNDERWRITERS MAY ENGAGE IN PASSIVE
MARKET MAKING TRANSACTIONS IN THE COMMON STOCK ON THE NASDAQ NATIONAL MARKET
IN ACCORDANCE WITH RULE 10B-6A UNDER THE SECURITIES EXCHANGE ACT OF 1934. SEE
"PLAN OF DISTRIBUTION."
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and information filed by the Company with the Commission pursuant
to the informational requirements of the Exchange Act may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
regional offices located at Seven World Trade Center, 13th Floor, New York,
New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. The Commission maintains a World Wide Web site at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission. Copies of such material may be obtained at prescribed rates by
writing the Commission, Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such reports, proxy statements and other information
can also be inspected at the offices of The Nasdaq Stock Market, 1735 K
Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a registration statement (the
"Registration Statement," which term shall include any amendments thereto) on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Debt Securities and shares of Common Stock offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement and the exhibits and schedules thereto, certain parts
of which are omitted in accordance with the rules and regulations of the
Commission, and to which reference is hereby made. For further information,
reference is hereby made to the Registration Statement and the exhibits and
schedules thereto.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed by the Company with the Commission
pursuant to the Exchange Act, are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended July
31, 1996.
2. The Company's Current Reports on Form 8-K dated October 22, 1996 and
October 8, 1996.
3. The description of the Company's Common Stock set forth in the Company's
Registration Statement on Form 8-A filed November 19, 1993.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from their respective dates of filing.
Any statement contained herein or in any document incorporated or deemed to be
incorporated shall be deemed to be modified or superseded for all purposes of
this Prospectus to the extent a statement contained in this Prospectus or in
any subsequently filed document that also is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
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<PAGE>
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO
WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, UPON WRITTEN OR ORAL
REQUEST OF SUCH PERSON, A COPY OF ANY AND ALL OF THE INFORMATION THAT HAS BEEN
INCORPORATED BY REFERENCE IN THIS PROSPECTUS (OTHER THAN EXHIBITS TO THE
INFORMATION THAT HAS BEEN INCORPORATED BY REFERENCE UNLESS SUCH EXHIBITS ARE
SPECIFICALLY INCORPORATED BY REFERENCE INTO THE INFORMATION THAT THIS
PROSPECTUS INCORPORATES). REQUESTS SHOULD BE DIRECTED TO D. CHISHOLM
MACDONALD, SENIOR VICE PRESIDENT, ABC RAIL PRODUCTS CORPORATION, AT THE
COMPANY'S PRINCIPAL EXECUTIVE OFFICES, 200 SOUTH MICHIGAN AVENUE, SUITE 1300,
CHICAGO, ILLINOIS 60604, TELEPHONE NUMBER (312) 322-0360. PERSONS REQUESTING
COPIES OF EXHIBITS TO SUCH DOCUMENTS THAT WERE NOT SPECIFICALLY INCORPORATED
BY REFERENCE IN SUCH DOCUMENTS WILL BE CHARGED THE COSTS OF REPRODUCTION AND
MAILING.
THE COMPANY
ABC Rail Products Corporation (the "Company") is a leader in the
engineering, manufacturing and marketing of replacement products and original
equipment for the freight railroad and rail transit industries. The Company's
products include specialty trackwork, such as rail crossings and switches;
mechanical products, such as railcar, locomotive and idler wheels, mounted
wheel sets and metal brake shoes; and classification yard products and
automation systems. The Company operates in the composite brake shoe market
through a joint venture. The Company was incorporated under the laws of
Delaware in 1987. The principal executive offices of the Company are located
at 200 South Michigan Avenue, Suite 1300, Chicago, Illinois 60604 and its
telephone number is (312) 322-0360.
RISK FACTORS
Prospective investors should carefully consider the following matters,
together with the other information set forth in the Prospectus, in evaluating
the Company and its business before making an investment decision.
INDUSTRY CYCLICALITY
Demand for railroad products generally fluctuates in line with overall
economic conditions. In economic downturns, railroads may defer certain
expenditures in order to conserve cash in the short term. Also, reductions in
freight traffic due to economic downturns or other factors may reduce demand
for the Company's replacement products by reducing wear.
COMPETITION
Although in North America there are only three other principal specialty
trackwork manufacturers and two other principal railroad wheel producers, the
markets served by the Company are competitive. The limited number of railroad
customers, their efforts to reduce costs and excess industry capacity in
certain of the Company's product lines historically have limited the Company's
ability to increase prices. Some competitors have greater financial resources
than the Company. Currently, no single company competes with the Company
across all of its product lines. However, there can be no assurance that
competition in one or more of its product lines will not reduce the Company's
profitability. Historically, the Company has experienced limited foreign
competition due to the specialized nature of many of its products, the
importance of the Association of American Railroads product approvals and
compliance with the American Railroad Engineering Association specifications
and the cost of shipping. However, there can be no assurance that foreign
competition will not increase in the future.
RELIANCE ON CERTAIN CUSTOMERS
The Company's principal specialty trackwork customers are the North American
Class I railroads, although the Company also sells specialty trackwork to a
number of regional and short-line railroads as well as rail transit systems.
The Company's wheel and wheel mounting customers include the Class I
railroads, regional and short-line railroads, railcar and locomotive
manufacturers and railroad service companies. The Company's metal brake
3
<PAGE>
shoe customers include railroads, rail transit systems and manufacturers of
railcar and locomotive braking systems. The Company's largest customers are
the Burlington Northern Santa Fe and Union Pacific Corporation (recently
merged with Southern Pacific Rail Corporation), which accounted for
approximately 27% and 17%, respectively, of the Company's net sales for fiscal
1996. No other customer accounted for more than 10% of fiscal 1996 net sales.
In fiscal 1994, the Company entered into multi-year agreements with Burlington
Northern Railroad Company (recently merged as the Burlington Northern Santa
Fe) and Union Pacific Corporation for the supply of specialty trackwork
products. The Company's five largest customers accounted for approximately 56%
of the Company's net sales during fiscal 1996. A significant decrease in
business from any of these customers, or the loss of any major customer, could
have a material adverse effect on the Company.
UNEVEN TRACKWORK SHIPMENT PATTERNS; SEASONALITY
The peak season for installation of specialty trackwork extends from March
through October, when weather conditions are generally favorable for
installation and, as a result, net sales of specialty trackwork have
historically been more concentrated in the period from January to June, a
period roughly corresponding to the second half of the Company's fiscal year.
In addition, a number of the Company's facilities close for regularly
scheduled maintenance in the late summer and late December, which tends to
reduce operating results during the first half of the Company's fiscal year.
Consequently, approximately 55% to 60% of the Company's net sales of specialty
trackwork have historically occurred in the second half of its fiscal year. In
addition, transit industry practice with respect to specialty trackwork
generally involves the periodic shipment of large quantities, which may be
unevenly distributed throughout the year. For fiscal 1996, sales of specialty
trackwork products accounted for approximately 49% of the Company's net sales.
ACQUISITION STRATEGY; RISKS RELATED TO RAPID GROWTH
A principal component of the Company's business strategy is to continue to
grow by making additional acquisitions of complementary businesses. The
Company historically has financed its acquisitions through a combination of
secured and unsecured borrowings, augmented by internally generated cash flow
and the issuance of equity securities. The Company's future growth and
financial success will be dependent upon a number of factors including, among
others, the Company's ability to identify acceptable acquisition candidates,
consummate the acquisition of such businesses on terms that are favorable to
the Company, attain customer retention levels at acquired businesses that are
advantageous to the Company, and promptly and profitably integrate the
acquired operations into the Company. There can be no assurance that the
Company will be successful with respect to such factors. There can also be no
assurance that the Company will adequately anticipate all of the changing
demands its growth will impose on its internal systems, procedures and
structure. Any failure to adequately anticipate and respond to such changing
demands could have a material adverse effect on the Company.
LABOR RELATIONS
Labor unions represent approximately 69% of the Company's employees. The
Company believes that its labor relations are good. However, there can be no
assurance that work stoppages will not occur in the future in connection with
contract negotiations or otherwise, or of the outcome of future contract
negotiations.
ENVIRONMENTAL COMPLIANCE
The Company is subject to a variety of environmental laws and regulations
governing discharges to air and water, the handling, storage and disposal of
hazardous or solid waste materials and the remediation of contamination
associated with releases of hazardous substances. Although the Company
believes it is in material compliance with all of the various regulations
applicable to its business, there can be no assurance that requirements will
not change in the future or that the Company will not incur significant costs
to comply with such requirements.
4
<PAGE>
In connection with its formation and the purchase of certain assets and
liabilities from the Railroad Products Group of Abex Corporation ("Abex") in
1987, the Company obtained a comprehensive environmental indemnity from Abex.
The indemnity covers environmental conditions, whether or not then known, in
existence at the time of the purchase, without dollar or time limit. Shortly
after the purchase, the Company performed surveys to assess the environmental
conditions at the time of the purchase. As a result of these studies, the
Company has undertaken environmental projects, including underground storage
tank removal, corrective action and other remedial action as necessary. Some of
these actions are ongoing and similar actions may be necessary in the future.
When Abex refused to compensate the Company for costs incurred, the Company
filed suit against Abex on November 18, 1991. In a separate lawsuit filed in
October 1994, the Company also asserts that Abex is required to indemnify the
Company for the reduction in value of one of the sold properties (a
Pennsylvania manufacturing facility owned by the Company) caused by the
environmental contamination at that site. In October 1995, a judgment in the
1991 lawsuit was finalized with the Company receiving a payment of $2.8 million
from Abex. The Company recorded the receipt of this payment as a reserve to
address other potential matters related to ongoing Abex issues. The judgment is
exclusive of indemnification for any future environmental claims. While the
Company believes the cost of environmental projects related to ongoing Abex
issues may be properly recoverable under the indemnity, the Company is
responsible for such cost irrespective of whether it receives payment under the
indemnity.
SUBORDINATION OF THE DEBT SECURITIES
The Debt Securities will be general unsecured obligations of the Company. The
Debt Securities will be subordinated in the right of payment to all existing
and future Senior Indebtedness (as hereinafter defined), including the payment
of principal, premium, if any, interest and all other amounts due on or payable
in connection with Senior Indebtedness. "Senior Indebtedness" includes all
indebtedness of the Company for borrowed money whether existing on or created
or incurred after the date of issuance of the Debt Securities and, under the
Indenture, the Company may incur substantial Senior Indebtedness. By reason of
such subordination, in the event of liquidation, reorganization, dissolution or
winding up of the Company, or upon an assignment for the benefit of its
creditors or any other marshalling of the Company's assets and liabilities, or
upon other proceedings, the holders of Senior Indebtedness must be paid in full
before the holders of the Debt Securities may be paid. This may have the effect
of reducing the amount of such proceeds paid to the holders of the Debt
Securities. In addition, under certain circumstances, no payments may be made
with respect to the principal of or interest on the Debt Securities if there
exists (and has not been waived) a non-payment default, or certain other
defaults with respect to Senior Indebtedness. See "Description of the Debt
Securities."
USE OF PROCEEDS
The Company currently intends to use the net proceeds from the issuance and
sale of the Securities offered hereby for general corporate purposes, which may
include the reduction of indebtedness, possible acquisitions and such other
purposes as will be stated in any Prospectus Supplement. Pending such use, the
net proceeds may be temporarily invested in short-term investment securities or
deposited in interest-bearing accounts. The precise amounts and timing of the
application of proceeds will depend upon the funding requirements of the
Company and the availability of other funds.
RATIO OF EARNINGS TO FIXED CHARGES
Set forth below are the ratios of earnings to fixed charges (unaudited) for
the Company for the last five years:
<TABLE>
<CAPTION>
YEAR ENDED JULY 31,
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1996 1995 1994 1993 1992
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<S> <C> <C> <C> <C>
2.72x 5.60x 4.05x 2.21x (a)
</TABLE>
(a)In 1992, earnings were insufficient to cover fixed charges by $1.6 million.
5
<PAGE>
For the purpose of computing the ratios of earnings to fixed charges,
earnings have been calculated by adding fixed charges to income before income
taxes, cumulative effect of accounting change and extraordinary items. Fixed
charges represent interest expense, amortization of deferred financing costs
and the interest portion of rent expense.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the "Indenture") by
and between the Company and First Trust of Illinois, National Association, as
Trustee (the "Trustee"). The Indenture provides that Debt Securities may be
issued from time to time in one or more series pursuant to the terms of one or
more Officer's Certificates or supplemental indentures creating such series.
The particular terms of each series, or of Debt Securities forming a part of a
series, that are offered by a Prospectus Supplement will be described in such
Prospectus Supplement.
The following summaries of certain provisions of the Indenture and the Debt
Securities do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all the provisions of the Indenture and any
Officer's Certificates or any supplemental indentures relating thereto,
including the definitions therein of certain terms. Wherever particular
Sections or defined terms of the Indenture are referred to herein or in a
Prospectus Supplement, such Sections, references to such Sections or defined
terms are incorporated by reference herein or therein, as the case may be.
GENERAL
The Indenture provides that Debt Securities in separate series may be issued
thereunder from time to time without limitation as to aggregate principal
amount. The Company may specify a maximum aggregate principal amount for the
Debt Securities of any series. (Section 301) The Debt Securities are to have
such terms and provisions that are not inconsistent with the Indenture,
including terms and provisions relating to maturity, principal and interest, as
the Company may determine. The Debt Securities will be unsecured subordinated
obligations of the Company.
The applicable Prospectus Supplement will set forth the price or prices at
which the Offered Debt Securities will be issued and will describe the
following terms of such Offered Debt Securities: (i) the title of such Offered
Debt Securities; (ii) any limit on the aggregate principal amount of such
Offered Debt Securities or the series of which they are a part; (iii) if other
than the Trustee, the identity of each Security Registrar and Paying Agent;
(iv) the date or dates, or the method by which such date or dates are
determined or extended, on which the principal and premium (if any) of any of
such Offered Debt Securities will be payable; (v) the rate or rates (which may
be fixed or variable) at which any of such Offered Debt Securities will bear
interest, or the method, if any, by which such rates will be determined, the
date or dates from which any such interest will accrue, the Interest Payment
Dates on which any such interest will be payable, or the method by which such
date will be determined, and the basis on which interest shall be calculated,
if other than that of a 360-day year of twelve thirty-day months; (vi) if other
than the fifteenth day next preceding an Interest Payment Date, the Regular
Record Date with respect to an Interest Payment Date; (vii) the place or
places, if any, other than or in addition to the Corporate Trust Office, where
the principal of and any premium and interest on any of such Offered Debt
Securities will be payable; (viii) the period or periods within which, the
price or prices at which and the terms and conditions on which any of such
Offered Debt Securities may be redeemed, in whole or in part, at the option of
the Company; (ix) the obligation, if any, of the Company to redeem, repay or
purchase any of such Offered Debt Securities pursuant to any sinking fund or
analogous provision or at the option of the Holder thereof, and the period or
periods within which, the price or prices at which and the terms and conditions
on which any of such Offered Debt Securities will be redeemed, repaid or
purchased, in whole or in part, pursuant to any such obligation; (x) the
denominations in which any of such Offered Debt Securities will be issuable, if
other than denominations of $1,000 and any integral multiple thereof; (xi) if
other than the currency of the United States of
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America, the currency, currencies or currency units in which the principal of
or any premium or interest on any of such Offered Debt Securities will be
payable (and the manner in which the equivalent of the principal amount thereof
in the currency of the United States of America is to be determined for
purposes of determining the principal amount deemed to be Outstanding at any
time); (xii) if the amount of principal of or any premium or interest on any of
such Offered Debt Securities may be determined with reference to an index, the
manner in which such amounts will be determined; (xiii) if the principal of or
any premium or interest on any of such Offered Debt Securities is to be
payable, at the election of the Company or the Holder thereof, in one or more
currencies or currency units other than those in which such Offered Debt
Securities are stated to be payable, the currency, currencies or currency units
in which payment of any such amount as to which such election is made will be
payable, and the periods within which and the terms and conditions upon which
such election is to be made; (xiv) if other than the principal amount thereof,
the portion of the principal amount of any of such Offered Debt Securities that
will be payable upon declaration of acceleration of the Maturity thereof; (xv)
if applicable, that such Offered Debt Securities, in whole or any specified
part, are defeasible pursuant to the provisions of the Indenture described
under "Defeasance--Defeasance and Discharge" or "Defeasance--Covenant
Defeasance", or under both such captions; (xvi) any addition to or change in
the Events of Default applicable to any of such Offered Debt Securities and any
change in the right of the Trustee or the Holders to declare the principal of
and any premium or interest on any of such Offered Debt Securities due and
payable; (xvii) any addition to or change in the covenants and definitions in
the Indenture or in the provisions of the Indenture described under
"Consolidation, Merger, Conveyance or Transfer" and under "Covenants"; (xviii)
whether any of such Offered Debt Securities will be issuable in whole or in
part in the form of one or more Global Securities and, if so, the respective
Depositaries for such Global Securities and, if different from those described
under the Indenture caption entitled "Registration, Registration of Transfer
and Exchange," any circumstances under which any such Global Security may be
exchanged for Offered Debt Securities registered, and any transfer of such
Global Security may be registered, in the names of Persons other than the
Depositary for such Global Security or its nominee and (xix) any other terms of
such Offered Debt Securities not inconsistent with the provisions of the
Indenture, including, without limitation, any subordination provisions.
(Section 301) If specified in any applicable Prospectus Supplement, the Debt
Securities of any series may be issued in bearer form, and if so issued, the
applicable Prospectus Supplement will describe any additions to or changes in
any of the provisions of the Indenture that are necessary to permit or
facilitate such issuance. (Section 901)
Debt Securities, including Original Issue Discount Securities, may be sold at
a substantial discount below their principal amount. Certain special United
States federal income tax considerations (if any) applicable to Debt Securities
sold at an original issue discount will be described in the applicable
Prospectus Supplement. In addition, certain special United States federal
income tax or other considerations (if any) applicable to any Debt Securities
that are denominated in a currency or currency unit other than United States
dollars will be described in the applicable Prospectus Supplement.
Except to the extent that the covenants described in the applicable
Prospectus Supplement may otherwise provide, neither the Indenture nor the Debt
Securities will contain any covenants or other provisions designed to afford
Holders of the Debt Securities protection in the event of a highly leveraged
transaction, change in credit rating or other similar occurrence involving the
Company or any Subsidiary.
FORM, EXCHANGE AND TRANSFER
Unless otherwise specified in the applicable Prospectus Supplement, the Debt
Securities of each series will be issuable only in fully registered form,
without coupons, and only in denominations of $1,000 and integral multiples
thereof. (Section 302)
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Securities, Debt Securities of each series
will be exchangeable for other Debt Securities of the same series of any
authorized denomination and of a like tenor and aggregate principal amount.
(Section 305)
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Subject to the terms of the Indenture and the limitations applicable to
Global Securities, Debt Securities may be presented for exchange as provided
above or for registration of transfer (duly endorsed or with a written
instrument of transfer duly executed) at the office of the Security Registrar
or at one or more offices or agencies designated by the Company for such
purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but the Company or the Trustee will require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. Such transfer or exchange will be effected
upon the Security Registrar being satisfied with the documents of title and
identity of the person making the request. Unless otherwise set forth in the
applicable Prospectus Supplement, the Company has appointed the Trustee as
Security Registrar for each series of Debt Securities for the purpose of
registering Debt Securities and transfers of Debt Securities at its Corporate
Trust Office in Chicago, Illinois. (Section 305) Any other office or agency (in
addition to the Security Registrar) initially designated by the Company for the
registration and transfer of any Debt Securities will be named in the
applicable Prospectus Supplement. The Company may at any time designate
additional offices and agencies for the registration and transfer or exchange
of any Debt Securities or rescind such designations, except that the Company
will be required to maintain an office or agency in each Place of Payment for
the Debt Securities of each series. (Section 1002)
If the Debt Securities of any series are to be redeemed in part, the Company
will not be required to (i) issue, register the transfer of or exchange any
Debt Security of that series during a period beginning at the opening of
business 15 days before the selection of such Debt Securities of that series to
be redeemed and ending at the close of business on the day of the mailing of a
notice of redemption or (ii) register the transfer of or exchange any Debt
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any such Debt Security being redeemed in part. (Section 305)
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in whole
or in part, by one or more Global Securities that will have an aggregate
principal amount equal to that of the Debt Securities represented thereby. Each
Global Security will be registered in the name of a Depositary or a nominee
thereof identified in the applicable Prospectus Supplement, and will be
deposited with such Depositary or nominee or a custodian therefor.
Notwithstanding any provision of the Indenture or any Debt Security described
herein, no Global Security may be exchanged for Debt Securities registered in
the name of, and no transfer of a Global Security may be registered to, any
Person other than the Depositary for such Global Security or any nominee of
such Depositary unless (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or if
the Company determines that the Depositary is unable to continue as Depositary
and the Company thereupon fails to appoint a successor Depositary; (ii) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so exchangeable and the transfer thereof so registerable;
(iii) the Company provides for such exchange in creating such Global Security
(which will be described in any applicable Prospectus Supplement); (iv) there
shall have occurred and be continuing an Event of Default with respect to the
Debt Securities evidenced by such Global Security or (v) there shall exist such
circumstances, if any, in addition to or in lieu of those described above as
may be described in the applicable Prospectus Supplement. All securities issued
in exchange for a Global Security or any portion thereof will be registered in
such names as the Depositary may direct. (Section 305)
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities represented thereby for all purposes under the Debt Securities and
the Indenture. Except in the limited circumstances referred to above, owners of
beneficial interests in a Global Security will not be entitled to have such
Global Security or any Debt Securities represented thereby registered in their
names, will not receive or be entitled to receive physical delivery of
certificates representing Debt Securities in exchange therefor and will not be
considered to be the owners or Holders of such Global Security or any Debt
Securities represented
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thereby for any purpose under the Debt Securities or the Indenture. All
payments of principal of and any premium and interest on a Global Security will
be made to the Depositary or its nominee, as the case may be, as the Holder
thereof. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. These
laws may impair the ability to transfer beneficial interests in a Global
Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary
(with respect to participants' interests) or any such participant (with respect
to interests of persons held by such participants on their behalf). Payments,
transfers, exchanges and other matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by
the Depositary from time to time. None of the Company, the Trustee, the
Security Registrar, the Paying Agent or any agent of the Company or the Trustee
will have any responsibility or liability for (i) any aspects of the
Depositary's or any participant's records relating to, or for payments made on
account of, beneficial interests in a Global Security, or for maintaining,
supervising or reviewing any records relating to such beneficial interests;
(ii) the payments to the beneficial owners of the Global Security of amounts
paid to the Depositary or its nominee or (iii) any other matter related to the
actions and practices of the Depositary. (Section 305)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest. (Section 307)
Principal and any premium and interest due on a Debt Security upon Maturity
or upon redemption or repurchase will be paid by wire transfer (if appropriate
instructions are received) against presentation and surrender of the Debt
Security by the Holder thereof at the office of the Paying Agent. Interest
payments on any Debt Security (other than interest due at Maturity or on
redemption or repurchase) will be made by check mailed to the address of the
Person entitled thereto as such address appears in the Security Register;
provided that a Holder of Debt Securities of any series that pay interest on
the same day and that are in an aggregate principal amount in excess of
$10,000,000 may elect to receive payments of interest with respect to such
series via wire transfer. (Section 307) The Paying Agent or Agents initially
designated by the Company for the Debt Securities of a particular series will
be named in the applicable Prospectus Supplement. The Company may at any time
designate additional Paying Agents or one or more other offices or agencies
where the Debt Securities may be presented or surrendered for payment and from
time to time rescind such designations, except that the Company will be
required to maintain an office or agency in each Place of Payment for the Debt
Securities of a particular series. (Section 1002)
All moneys paid by the Company to a Paying Agent or the Trustee for the
payment of the principal of or any premium or interest on any Debt Security
that remain unclaimed at the end of one year after such principal, premium or
interest has become due and payable will be repaid to the Company, and the
Holder of such Security thereafter may, as an unsecured creditor, look only to
the Company for payment thereof, and all liability of the Paying Agent and the
Trustee with respect thereto, and all liability of the Company as a trustee
thereof, shall thereupon cease. (Section 1003)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with, or sell or convey all or substantially
all of its assets to, or merge with or into any other person or entity unless
(i) either the Company is the continuing corporation, or the
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successor is a corporation organized and existing under the laws of the United
States or a state thereof and the successor corporation expressly assumes by
an indenture supplement the Company's obligations on the Debt Securities and
under the Indenture; (ii) the Company or the successor corporation, as the
case may be, is not immediately after the merger or consolidation, or the sale
or conveyance, in default in the performance of any covenant or condition
under the Indenture and (iii) after giving effect to the transaction, no Event
of Default, and no event that, after notice or lapse of time or both, would
become an Event of Default, shall have occurred or be continuing. (Section
801)
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (i) default in the
payment of any interest upon any Debt Security of that series when it became
due and payable, and continuance of that default for a period of 30 days; (ii)
default in the payment of the principal of (or premium, if any, on) any Debt
Security of that series when it became due and payable at its Maturity; (iii)
default in the deposit of any sinking fund payment, when due by the terms of a
Debt Security of that series; (iv) default in the performance, or breach, of
any covenant or warranty of the Company in the Indenture with respect to any
Debt Security of that series (other than a covenant or warranty a default in
the performance of which or the breach of which is specifically dealt with
elsewhere or that has expressly been included in the Indenture solely for the
benefit of a series other than that series), and continuance of that default
or breach for a period of 30 days after written notice has been given by the
Trustee, or by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series, as provided in the Indenture and (v)
certain events in bankruptcy, insolvency or reorganization. (Section 501)
If an Event of Default with respect to the Debt Securities of any series at
the time Outstanding shall occur and be continuing, either the Trustee or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series by notice as provided in the Indenture may declare
the principal amount of the Debt Securities of that series (or, in the case of
any Debt Security that is an Original Issue Discount Security, such portion of
the principal amount of such Debt Security, as may be specified in the terms
of such Debt Security) to be due and payable immediately. After any such
acceleration, but before a judgment or decree based on acceleration, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series may, under certain circumstances, rescind and annul
such acceleration if (i) the Company has paid or deposited with the Trustee a
sum sufficient to pay (a) all overdue interest on all Outstanding Securities
of that series, (b) the principal and premium, if any, on any Debt Securities
of that series that have become due otherwise than by such acceleration and
any interest thereon at the rate or rates prescribed therefor in such Debt
Securities, (c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefore in
such Debt Securities and (d) certain fees of the Trustee and (ii) all Events
of Default, other than the non-payment of accelerated principal (or premium,
if any) or interest on Debt Securities of that series, have been cured or
waived as provided in the Indenture. (Section 502) For information as to
waiver of defaults, see "Modification and Waiver".
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default shall occur and be continuing, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity. (Section 603) Subject to such provisions for the giving of security
or the indemnification of the Trustee, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of any series will have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee with respect to the Debt Securities of that series. (Section
512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing
Event of Default with respect to
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the Debt Securities of that series; (ii) the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that series have
made written request, and such Holder or Holders have offered reasonable
indemnity, to the Trustee to institute such proceeding as Trustee and (iii) the
Trustee has failed to institute such proceeding, and has not received from the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series a direction inconsistent with such request, within 60
days after such notice, request and offer. (Section 507) However, such
limitations do not apply to a suit instituted by a Holder of a Debt Security
for the enforcement of payment of the principal of or any premium or interest
on such Security on or after the applicable due date specified in such Debt
Security. (Section 508)
The Company will be required to furnish to the Trustee annually a statement
by certain of its officers as to whether or not the Company, to their
knowledge, is in default in the performance or observance of any of the terms,
provisions and conditions of the Indenture and, if so, specifying all such
known defaults. (Section 1004)
MODIFICATION AND WAIVER
Without the consent of any Holders of Outstanding Securities, the Company and
the Trustee may enter into one or more supplemental indentures and/or Officer's
Certificates for any of the following purposes: (i) to evidence the succession
of another Person to the Company and the assumption by any such successor of
the covenants of the Company in the Indenture and in the Debt Securities; (ii)
to add to the covenants of the Company for the benefit of the Holders of all or
any series of Debt Securities (and if such covenants are to be for the benefit
of less than all series of Debt Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power conferred upon the Company by the Indenture; (iii) to add to
or change any of the provisions of the Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Debt Securities of any series
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Debt
Securities of any series in uncertificated form; (iv) to add to, change or
eliminate any of the provisions of the Indenture in respect of one or more
series of Debt Securities; provided, however, that any such addition, change or
elimination shall either (a) not adversely affect the rights of the Holders of
Outstanding Securities of any series in any material respect, or (b) not apply
to any Outstanding Securities of any series created prior to the execution of
such supplemental indenture where such addition, change or elimination has an
adverse effect on the rights of the Holders of such Outstanding Securities in
any material respect; (v) to secure the Debt Securities of any series; (vi) to
establish the form or terms of Debt Securities of any series as permitted by
the Indenture; (vii) to evidence and provide for the acceptance of appointment
of a successor Trustee under the Indenture with respect to the Debt Securities
of one or more series and to add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts under the Indenture by more than one Trustee; (viii) to cure any
ambiguity or defect in and to correct or supplement any provision in the
Indenture or any Debt Security of any series that may be inconsistent with any
other provision in the Indenture or in the Debt Security of such series, or to
make any other provisions with respect to matters or questions arising under
the Indenture; provided, however, that any such action shall not adversely
affect the rights of the Holders of Outstanding Securities of any series in any
material respect; (ix) to modify, eliminate or add to the provisions of the
Indenture to such extent as shall be necessary to effect qualification of the
Indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), or under any similar federal statute hereafter enacted, and to
add to the Indenture such other provisions as may be expressly permitted by the
Trust Indenture Act or (x) to amend or supplement the restrictions on the
procedures for resale, attempted resale and other transfers of any series of
Debt Securities (whether or not Outstanding) to reflect any change in
applicable law or regulation (or interpretation thereof) or in practices
relating to the resale or transfer of Restricted Securities generally. (Section
901)
Except as described above, the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by a modification or amendment (voting as one class) is required for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, the Indenture pursuant to a supplemental
indenture; provided, however, that no such modification or amendment
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may, without the consent of the Holder of each Outstanding Security affected
thereby: (i) extend the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security; (ii) reduce the principal amount
of, or any premium or interest on, any Debt Security; (iii) reduce the amount
of principal of an Original Issue Discount Security payable upon acceleration
of the Maturity thereof; (iv) change the place or currency of payment of
principal of, or any premium or interest on, any Debt Security; (v) impair the
right to institute suit for the enforcement of any payment on or with respect
to any Debt Security; (vi) reduce the percentage in principal amount of
Outstanding Securities of any series, the consent of whose Holders is required
for modification or amendment of the Indenture; (vii) reduce the percentage in
principal amount of Outstanding Securities of any series necessary for waiver
of compliance with certain provisions of the Indenture or for waiver of certain
defaults or (viii) modify such provisions with respect to modification and
waiver. (Section 902)
The Holders of a majority in principal amount of the Outstanding Securities
of any series may waive compliance by the Company with certain restrictive
provisions of the Indenture. (Section 1007) The Holders of a majority in
principal amount of the Outstanding Securities of any series may waive any past
default under the Indenture, except a default in the payment of principal,
premium or interest and certain covenants and provisions of the Indenture that
cannot be amended without the consent of the Holder of each Outstanding
Security of such series affected. (Section 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given or taken
any direction, notice, consent, waiver or other action under the Indenture as
of any date, (i) the principal amount of an Original Issue Discount Security
that will be deemed to be Outstanding will be the amount of the principal
thereof that would be due and payable as of such date upon acceleration of the
Maturity thereof to such date, and (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units that will be
deemed to be Outstanding will be the U.S. dollar equivalent, determined as of
such date in the manner prescribed for such Debt Security, of the principal
amount of such Debt Security (or, in the case of a Debt Security described in
clause (i) above, of the amount described in such clause). Certain Debt
Securities, including those for whose payment or redemption money has been
deposited or set aside in trust for the Holders and those that have been fully
defeased pursuant to Section 1302, will not be deemed to be Outstanding.
(Section 101)
Except in certain limited circumstances, the Company will be entitled to set
any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give or take any direction,
notice, consent, waiver or other action under the Indenture, in the manner and
subject to the limitations provided in the Indenture. In certain limited
circumstances, the Trustee also will be entitled to set a record date for
action by Holders. If a record date is set for any action to be taken by
Holders of a particular series, such action may be taken only by persons who
are Holders of Outstanding Securities of that series on that record date,
whether or not such Holders remain Holders after such record date. To be
effective, such action must be taken by Holders of the requisite principal
amount of such Debt Securities within a specific period following the record
date. For any particular record date, this period will be 90 days. (Section
104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement, the
Company may elect, at its option at any time, to have the provisions of Section
1302, relating to defeasance and discharge of indebtedness, or Section 1303,
relating to defeasance of certain restrictive covenants that may be described
in the applicable Prospectus Supplement, applied to the Debt Securities of any
series, or to any specified part of the series. (Section 1301)
Defeasance and Discharge. The Indenture provides that, upon the Company's
exercise of its option (if any) to have Section 1302 applied to any Debt
Securities, the Company will be discharged from all its obligations with
respect to such Debt Securities (except for certain obligations to exchange or
register the transfer of Debt Securities, to replace stolen, lost or mutilated
Debt Securities, to maintain paying agencies and to hold moneys for payment in
trust) upon the deposit in trust for the benefit of the Holders of such Debt
Securities of money or
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U.S. Government Obligations, or both, that, through the payment of principal
and interest, if any, in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay the principal of and any premium
and interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the Indenture and such Debt Securities. Such
defeasance or discharge may occur only if, among other things, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that Holders of
such Debt Securities will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit, defeasance and
discharge were not to occur. (Sections 1302 and 1304)
Defeasance of Certain Covenants. The Indenture provides that, upon the
Company's exercise of its option (if any) to have Section 1303 applied to any
Debt Securities, the Company may omit to comply with certain covenants, as may
be described in the applicable Prospectus Supplement will be deemed not to be
or result in an Event of Default, with respect to such Debt Securities. The
Company, in order to exercise such option, will be required to deposit, in
trust for the benefit of the Holders of such Debt Securities, money or U.S.
Government Obligations, or both, that, through the payment of principal and
interest, if any, in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay the principal of and any premium
and interest on such Debt Securities on the respective Stated Maturities or on
redemption in accordance with the terms of the Indenture and such Debt
Securities. The Company will also be required, among other things, to deliver
to the Trustee an Opinion of Counsel to the effect that Holders of such Debt
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance of certain obligations and
will be subject to federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit and
defeasance were not to occur. (Sections 1303 and 1304)
NOTICES
Except as may be described in any Prospectus Supplement with respect to the
Holders of a particular series of Debt Securities, notices to Holders of Debt
Securities will be given by mail to the addresses of such Holders as they may
appear in the Security Register. (Sections 101 and 106)
TITLE
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name a Debt Security is registered as the owner
thereof (whether or not such Debt Security may be overdue) for the purpose of
making payment and for all other purposes. (Section 308)
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the law of the State of Illinois. (Section 112)
RELATIONSHIPS WITH THE TRUSTEE
Other than through the Indenture, the Company does not maintain any
relationships with the Trustee.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The total amount of the authorized capital stock of the Company is 25,000,000
shares of Common Stock and 1,000,000 shares of preferred stock, par value $1.00
(the "Preferred Stock"), none of which are outstanding. No series of Preferred
Stock has been designated other than 100,000 shares of Series A Junior
Participating
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Preferred Stock (the "Series A Preferred Stock"). The following description is
a summary of the material provisions of the Company's capital stock and is
qualified in its entirety by reference to the provisions of the Company's
restated certificate of incorporation, its bylaws and the Rights Agreement,
dated as of September 29, 1995 (the "Rights Agreement") between the Company
and LaSalle National Trust, N.A., as Rights Agent, copies of which have been
filed as exhibits to the Registration Statement of which the Prospectus forms
a part.
COMMON STOCK, RIGHTS AND SERIES A PREFERRED STOCK
Common Stock
As of October 31, 1996, there were 8,376,026 shares of Common Stock
outstanding held by 58 holders of record (including brokerage firms and other
nominees). The issued and outstanding shares of Common Stock are validly
issued, fully paid and nonassessable. The holders of outstanding shares of
Common Stock are entitled to receive dividends out of assets legally available
therefor at such times and in such amounts as the Board of Directors of the
Company (the "Board of Directors") may from time to time determine, subject to
any prior rights of the holders of any preferred stock that may be
outstanding. Upon liquidation, dissolution or winding up of the Company, the
holders of Common Stock are entitled to receive pro rata the assets of the
Company that are legally available for distribution, after payment of all
debts and other liabilities and subject to the prior rights of any holders of
preferred stock then outstanding. Each outstanding share of Common Stock is
entitled to one vote on all matters submitted to a vote of stockholders. There
is no cumulative voting.
Rights and Series A Preferred Stock
Under the Rights Agreement, each outstanding share of Common Stock is
accompanied by one preferred share purchase right (each, a "Right"). Except as
described below, each Right entitles the registered holder to purchase from
the Company one one-hundredth of a share of Series A Preferred Stock at a
purchase price of $150 per one one-hundredth share the "Purchase Price,"
subject to adjustment. The description and terms of the Rights are set forth
in the Rights Agreement.
From the Record Date (as such term is defined in the Rights Agreement), the
Rights attach implicitly to all Common Stock certificates outstanding. No
separate Right certificates have been distributed. Until the earlier of (i) 10
days following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 15% or more of the outstanding shares of
Common Stock (the "Shares Acquisition Date") or (ii) 15 business days (or such
later date as may be determined by action of the Board of Directors prior to
the time that any person becomes an Acquiring Person) following the
commencement of (or a public announcement of an intention to make) a tender or
exchange offer if, upon consummation thereof, such person or group would be
the beneficial owner of 15% or more of such outstanding shares of Common Stock
(the earlier of such dates being called the "Distribution Date"), the Rights
will be evidenced together with a copy of the Summary of Stockholder Right
Plan that is attached as Exhibit C to the Rights Agreement (the "Summary of
Stockholder Rights Plan") and not by separate certificates.
The Rights Agreement also provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Stock. Until the
Distribution Date (or earlier redemption, expiration or termination of the
Rights), the transfer of any certificates for Common Stock, with or without a
copy of the Summary of Stockholder Rights Plan, will also constitute the
transfer of the Rights associated with the Common Stock represented by such
certificates. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Stock as of the close of business on the
Distribution Date and, thereafter, such separate Right Certificates alone will
evidence the Rights.
The Rights are not exercisable until the Distribution Date and will expire
at the earliest of (i) September 29, 2005 (the "Final Expiration Date"), (ii)
the redemption of the Rights by the Company as described below and (iii) the
exchange of all Rights for Common Stock as described below.
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In the event that any person (other than the Company, its subsidiaries or any
person receiving newly-issued shares of Common Stock directly from the Company)
becomes the beneficial owner of 15% or more of the then outstanding shares of
Common Stock, each holder of a Right will thereafter have the right to receive,
upon exercise at the then current exercise price of the Right, Common Stock
(or, in certain circumstances, cash, property or other securities of the
Company) having a value equal to two times the exercise price of the Right. The
Rights Agreement contains an exemption for any issuance of Common Stock by the
Company directly to any person (for example, in a private placement or an
acquisition by the Company in which Common Stock is used as consideration),
even if that person would become the beneficial owner of 15% or more of the
Common Stock, provided that such person does not acquire any additional shares
of Common Stock.
In the event that, at any time following the Shares Acquisition Date, the
Company is acquired in a merger or other business combination transaction or
50% or more of the Company's assets or earning power are sold, proper provision
will be made so that each holder of a Right will thereafter have the right to
receive, upon exercise at the then current exercise price of the Right, common
stock of the acquiring or surviving company having a value equal to two times
the exercise price of the Right.
Notwithstanding the foregoing, following the occurrence of any of the events
set forth in the preceding two paragraphs (the "Triggering Events"), any Rights
that are, or (under certain circumstances specified in the Rights Agreement)
were, beneficially owned by any Acquiring Person will immediately become null
and void.
The Purchase Price payable, and the number of shares of Series A Preferred
Stock or other securities or property issuable, upon exercise of the Rights,
are subject to adjustment from time to time to prevent dilution, among other
circumstances, in the event of a stock dividend on, or a subdivision, split,
combination, consolidation or reclassification of, the Series A Preferred Stock
or the Common Stock, or a reverse split of the outstanding shares of the Series
A Preferred Stock or the Common Stock.
At any time after the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 15% or more of the outstanding
Common Stock and prior to the acquisition by such person or group of 50% or
more of the outstanding Common Stock, the Board of Directors may exchange the
Rights (other than Rights owned by such person or group, which will have become
void), in whole or in part, at an exchange ratio of one share of Common Stock
per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments require an adjustment of at least 1% in the
Purchase Price. The Company will not be required to issue fractional shares of
Series A Preferred Stock or Common Stock (other than fractions in multiples of
one one-hundredths of a share of Series A Preferred Stock) and, in lieu
thereof, an adjustment in cash may be made based on the market price of the
Series A Preferred Stock or Common Stock on the last trading date prior to the
date of exercise.
At any time after the date of the Rights Agreement until the time that a
person becomes an Acquiring Person, the Board of Directors may redeem the
Rights in whole, but not in part, at a price of $.01 per Right (the "Redemption
Price"), which may (at the option of the Company) be paid in cash, shares of
Common Stock or other consideration deemed appropriate by the Board of
Directors. Upon the effectiveness of any action of the Board of Directors
ordering redemption of the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends.
The Board of Directors of the Company is generally responsible for
administering, interpreting and making all decisions and taking all actions
with respect to the Rights Agreement, including, without limitation, the
decision to redeem or exchange the Rights or to amend the Rights Agreement
(each of the foregoing being hereinafter referred to as an "Action").
Notwithstanding the foregoing, in the event the Board of Directors is required
or permitted to take any Action with respect to the Rights Agreement and (i)
such Action occurs on or
15
<PAGE>
after the date of a change (resulting from a proxy or consent solicitation) in
the Board of Directors as composed at the commencement of such solicitation
and (ii) a person who was a participant in the solicitation has stated that
such person (or any of its affiliates or associates) has taken, intends to
take or may consider taking, or if the majority of the Continuing Directors
(as hereinafter defined) has determined in good faith that such person (or any
of its affiliates or associates) has taken, intends to take or is likely to
take, any action that would result in such person becoming an Acquiring Person
or which would cause the occurrence of a Triggering Event, then, such Action
shall not be effective for purposes of the Rights Agreement unless (i) at the
time of such Action there are at least three Continuing Directors and such
Action is approved by a majority of the Continuing Directors then holding
office. "Continuing Directors" is defined as those directors who are either
presently in office or have been approved or nominated by Continuing
Directors, and who are neither Acquiring Persons nor affiliates or associates
of Acquiring Persons.
The provisions of the Rights Agreement may be amended by the Company, except
that any amendment adopted after the time that a person becomes an Acquiring
Person may not adversely affect the interests of holders of Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on the Rights being redeemed or a substantial
number of Rights being acquired, and under certain circumstances the Rights
beneficially owned by such a person or group will become void. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors because, if the Rights would become exercisable as a
result of such merger or business combination, the Board of Directors may, at
its option, at any time prior to the time that any Person becomes an Acquiring
Person, redeem all (but not less than all) of the then outstanding Rights at
the Redemption Price.
PREFERRED STOCK
The Board of Directors is authorized to issue preferred stock in series and
to fix the designations, powers, preferences, rights, qualifications,
limitations, or restrictions of any such series including without limitation,
the rate and nature of dividends, the price and terms and conditions on which
shares may be redeemed, the amount payable in the event of voluntary or
involuntary liquidation, the terms and conditions for conversion or exchange
into any other class or series of stock, voting rights, preemptive rights and
other terms. To date, the Board of Directors has so fixed only the Series A
Preferred Stock. Although no preferred stock is currently outstanding, because
the Board of Directors has the power to establish the preferences and rights
of the shares of any additional series of Preferred Stock, it may afford
holders of any such Preferred Stock preferences, powers and rights (including
voting rights), senior to the rights of holders of Common Stock, which could
adversely affect the holders of Common Stock.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
Under the Company's restated certificate of incorporation, as of October 31,
1996, there were approximately 16,623,974 shares of Common Stock and 1,000,000
shares of preferred stock available for future issuance without stockholder
approval. These additional shares may be utilized for a variety of corporate
purposes including future public offerings to raise additional capital or to
facilitate corporate acquisitions.
One of the effects of the existence of unissued and unreserved Common Stock
and preferred stock may be to enable the Board of Directors to issue shares to
persons friendly to current management that could render more difficult or
discourage an attempt to obtain control of the Company by means of a merger,
tender offer, proxy contest or otherwise, and thereby protect the continuity
of the Company's management. Such additional shares also could be used to
dilute the stock ownership of persons seeking to obtain control of the
Company.
16
<PAGE>
The Board of Directors is authorized without any future action by the
stockholders to determine the rights, preferences, privileges and restrictions
of the unissued preferred stock. The purpose of authorizing the Board of
Directors to determine such rights and preferences is to eliminate delays
associated with a stockholder vote on specific issuances. The Board of
Directors may issue preferred stock with voting and conversion rights that
could adversely affect the voting power of the holders of Common Stock, and
that could, among other things, have the effect of delaying, deferring or
preventing a change in control of the Company.
CERTAIN CHARTER AND BYLAW PROVISIONS
The Company's restated certificate of incorporation contains a provision that
limits the liability of the Company's directors for monetary damages for breach
of fiduciary duty as a director or officer to the full extent permitted by the
General Corporation Law of the State of Delaware. Such limitation does not,
however, affect the liability of a director (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases or (iv) for any transaction from which the
director derives an improper personal benefit. The effect of this provision is
to eliminate the rights of the Company and its stockholders (through
stockholders' derivative suits on behalf of the Company) to recover monetary
damages against a director for breach of the fiduciary duty of care as a
director (including breaches resulting from negligent or grossly negligent
behavior) except in the situations described in clauses (i) through (iv) above.
This provision does not limit or eliminate the rights of the Company or any
stockholder to seek non-monetary relief such as an injunction in the event of a
breach of a director's duty of care.
Section 203 of the General Corporation Law of the State of Delaware (the
"Delaware Business Combination Act") generally imposes a three-year moratorium
on business combinations between a Delaware corporation and an "interested
stockholder" (in general, a stockholder owning 15% or more of a corporation's
outstanding voting stock) or an affiliate or associate thereof unless (i) prior
to an interested stockholder becoming such, the board of directors of the
corporation approved either the business combination or the transaction
resulting in an interested stockholder becoming such; (ii) upon consummation of
the transaction resulting in an interested stockholder becoming such, the
interested stockholder owns at least 85% of the voting stock outstanding at the
time the transaction commenced (excluding, from the calculation of outstanding
shares, shares beneficially owned by directors who are also officers and
certain employee stock plans); or (iii) on or after an interested stockholder
becomes such, the business combination is approved by (a) the board of
directors and (b) holders of at least 66 2/3% of the outstanding shares (other
than those shares beneficially owned by the interested stockholder) at a
meeting of stockholders.
The Delaware Business Combination Act applies to certain public companies
incorporated in the State of Delaware unless the corporation expressly elects
not to be governed by such legislation and sets forth such election in (i) the
corporation's original certificate of incorporation; (ii) an amendment to the
corporation's bylaws as adopted by the corporation's board of directors within
90 days of the effective date of such legislation; or (iii) an amendment to the
corporation's certificate of incorporation or bylaws as approved by (in
addition to any other vote required by law) a majority of the shares entitled
to vote (however, such amendment would not be effective until 12 months after
the date of its adoption and would not apply to any business combination
between the corporation and any person who became an interested stockholder on
or prior to such adoption of such amendment). The Company has not made such an
election and is therefore subject to the Delaware Business Combination Act.
REGISTRAR AND TRANSFER AGENT
The registrar and transfer agent for the Common Stock is American Stock
Transfer & Trust Company.
17
<PAGE>
LEGAL MATTERS
Certain legal matters in connection with the validity of the Securities
offered hereby will be passed upon for the Company by Jones, Day, Reavis &
Pogue, Chicago, Illinois, and for any agents, underwriters or dealers by
McDermott, Will & Emery, Chicago, Illinois. Douglas H. Walter, a partner of
Jones, Day, Reavis & Pogue, is the owner of 82,762 shares of Common Stock.
EXPERTS
The consolidated financial statements incorporated by reference in this
Prospectus and elsewhere in this Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are so incorporated herein in reliance upon
the authority of said firm as experts in giving said report.
PLAN OF DISTRIBUTION
The Company may sell Securities through underwriters or dealers, directly to
one or more purchasers or through agents. The applicable Prospectus Supplement
will set forth the terms of the offering of any Securities, including the names
of any underwriters or agents, the purchase price of such Securities and the
proceeds to the Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial public offering
price, any discounts or concessions allowed or reallowed or paid to dealers and
any securities exchanges on which such Securities may be listed.
If underwriters are used in the sale, 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. Such
Securities may be offered to the public either through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
Unless otherwise set forth in the applicable Prospectus Supplement, the
obligations of the underwriters to purchase such Securities will be subject to
certain conditions precedent, and the underwriters will be obligated to
purchase all of such Securities if any of such Securities are purchased. Any
initial offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time. Only underwriters named in a
Prospectus Supplement are deemed to be underwriters in connection with the
Securities offered thereby.
Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of Securities will be named, and any commissions payable by the Company to
such agent will be set forth in the applicable Prospectus Supplement. Unless
otherwise indicated in the applicable Prospectus Supplement, any such agent
will act on a best efforts basis for the period of its appointment.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Securities at the public offering price set
forth in such Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a future date specified in such
Prospectus Supplement. Such contacts will be subject only to those conditions
set forth in the applicable Prospectus Supplement and such Prospectus
Supplement will set forth the commissions payable for solicitation of such
contracts.
Any underwriters, dealers or agents participating in the distribution of
Securities may be deemed to be underwriters and any discounts or commissions
received by them on the sale or resale of Securities may be deemed to be
underwriting discounts and commissions under the Securities Act. Agents and
underwriters may be entitled under agreements entered into with the Company to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act or to contribution with respect to
payments that the agents or underwriters may be required to make in respect
thereof. Agents and underwriters may be customers of, engage in transactions
with, or perform services for, the Company or its affiliates in the ordinary
course of business.
18
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities covered hereby, other than underwriting and other discounts and
commissions, are, subject to future contingencies, estimated to be as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............ $ 30,304
National Association of Securities Dealers, Inc. Filing Fee and
Blue Sky Fees and Expenses (including attorneys' fees and
expenses)..................................................... 20,500
Nasdaq National Market Supplemental Listing Fee................ 17,500
Printing Expenses.............................................. 100,000
Accounting Fees and Expenses................................... 20,000
Legal Fees and Expenses........................................ 150,000
Trustee and Transfer Agent Fees................................ 10,000
Miscellaneous Expenses......................................... 15,000
--------
Total...................................................... $363,304
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated under the laws of the State of Delaware. Section
145 of the General Corporation Law of the State of Delaware ("Section 145")
provides that a Delaware corporation may indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of
the fact that such person is or was an officer, director, employee or agent of
such corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, provided such person acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the corporation's best interests and, with respect to any criminal action
or proceeding, had no reasonable cause to believe that his conduct was
unlawful. A Delaware corporation may indemnify any persons who were or are
parties, or are threatened to be made a party, to any threatened, pending or
completed action or suit by or in the right of the corporation by reason of
the fact that such person is or was a director, officer, employee or agent of
such corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or
settlement of such action or suit, provided such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be liable
to the corporation. Where an officer or director is successful on the merits
or otherwise in the defense of any action referred to above or in defense of
any claim, issue or matter therein, the corporation must indemnify him against
the expenses that such officer or director has actually and reasonably
incurred in connection therewith.
The Company's restated certificate of incorporation provides that each
person who is or was or had agreed to become a director or officer of the
Company, or each such person who is or was serving or who had agreed to serve
at the request of the Board of Directors or an officer of the Company as an
employee or agent of the Company or as a director, officer, employee or agent
of another corporation, general or limited partnership, joint venture, trust
or other enterprise (including the heirs, executors, administrators or estate
of such person), shall be indemnified by the Company to the full extent
permitted by the General Corporation Law of the State of Delaware or any other
applicable laws as presently or hereafter in effect. Without limiting the
generality or the effect of the foregoing, the Company may enter into one or
more agreements with any person that provide for indemnification greater or
different than that provided in the restated certificate of incorporation.
II-1
<PAGE>
The restated certificate of incorporation also provides that to the full
extent permitted by the General Corporation Law of the State of Delaware or any
other applicable laws presently or hereafter in effect, no director of the
Company shall be personally liable to the Company or its stockholders for or
with respect to any acts or omissions in the performance of his or her duties
as a director of the Company.
The Company's bylaws provide that each person who is or was or had agreed to
become a director or officer of the Company, or each such person who is or was
serving or who had agreed to serve at the request of the Board of Directors or
an officer of the Company as an employee or agent of the Company or as a
director, officer, employee or agent of another corporation, general or limited
partnership, joint venture, trust or other enterprise (including the heirs,
executors, administrators or estate of such person), shall be indemnified by
the Company to the full extent permitted by the General Corporation Law of the
State of Delaware or any other applicable laws as presently or hereafter in
effect. Without limiting the generality or the effect of the foregoing, the
Company may enter into one or more agreements with any person that provide for
indemnification greater or different than that provided in the bylaws.
The Company has in effect insurance policies in the amount of $10.0 million
covering all of the Company's directors and officers.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement or Distribution Agreement, as applicable
(to be filed by amendment to this Registration Statement or as an exhibit
to a Current Report on Form
8-K)
4.1 Restated Certificate of Incorporation of the Company (2)
4.2 Bylaws of the Company (3)
4.3 Form of certificate representing shares of Common Stock of the Company (1)
4.4 Rights Agreement, dated as of September 29, 1995, between the Company and
LaSalle National Trust, N.A. as Rights Agent, which includes as Exhibit A
thereto the Form of Certificate of Designation, Preferences and Rights, as
Exhibit B thereto the form of Right Certificate, and as Exhibit C thereto
the Summary of Stockholder Rights Plan (4)
4.5 Indenture, dated , 1996, from the Company to First Trust of
Illinois, National Association, as Trustee
4.6 Form of Debt Security (filed as part of Exhibit 4.5)
5.1 Opinion and consent of Jones, Day, Reavis & Pogue
12.1 Computation of ratio of earnings to fixed charges
23.1 Consent of Jones, Day, Reavis & Pogue (included in their opinion filed as
Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney of Donald W. Grinter
24.2 Power of Attorney of Jean-Pierre M. Ergas
24.3 Power of Attorney of Donald R. Gant
24.4 Power of Attorney of Clarence E. Johnson
24.5 Power of Attorney of D. Chisholm MacDonald
24.6 Power of Attorney of James E. Martin
24.7 Power of Attorney of George W. Peck IV
25.1 Statement of Eligibility and Qualification under the Trust Indenture Act
of 1939 of First Trust of Illinois, National Association, on Form T-1
relating to the Debt Securities
</TABLE>
II-2
<PAGE>
Long-term debt of the Company or various of its subsidiaries is outstanding
under numerous other instruments. No such instrument authorizes an amount of
securities thereunder in excess of 10% of the total assets of the Company and
its subsidiaries on a consolidated basis. The Company agrees that it will
furnish a copy of any such instrument to the Securities and Exchange
Commission upon its request.
(1) Incorporated by reference to Exhibit 4.1 filed with the Registrant's
Registration Statement on Form S-1 originally filed with the Securities and
Exchange Commission on October 12, 1993 (SEC File No. 33-70242).
(2) Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Registration Statement on Form S-1 originally filed with the Securities and
Exchange Commission on April 13, 1994 (SEC File No. 33-77652).
(3) Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended July 31, 1994 (SEC File
No. 0-22906).
(4) Incorporated by reference to Exhibit 1 filed with the Registrant's
Current Report on Form 8-K dated September, 29, 1995 (SEC File No. 0-22906).
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of any
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described under Item 15,
II-3
<PAGE>
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.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed
as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this Registration Statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at the that time shall be deemed to be the initial bona fide offering
thereof.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF CHICAGO, STATE OF ILLINOIS ON NOVEMBER 15, 1996.
ABC RAIL PRODUCTS CORPORATION
/s/ D. CHISHOLM MacDONALD
By: _________________________________
D. Chisholm MacDonald
Senior Vice President and
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON NOVEMBER 15, 1996, BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED:
<TABLE>
<CAPTION>
NAME CAPACITY
---- --------
<S> <C>
* Chairman of the Board, Chief Executive Officer
Donald W. Grinter and Director (Principal Executive Officer)
*
Jean-Pierre M. Ergas Director
*
Donald R. Gant Director
*
Clarence E. Johnson Director
*
James E. Martin Director
*
George W. Peck IV Director
</TABLE>
- --------
*The undersigned by signing his name hereunto has hereby signed this
Registration Statement on behalf of the undersigned in the capacities
indicated and the above-named directors and officers, on November 15, 1996,
pursuant to a power of attorney executed on behalf of each such director
and officer and filed herewith with the Securities and Exchange Commission.
/s/ D. CHISHOLM MacDONALD
By: _________________________________
D. Chisholm MacDonald
Senior Vice President,
Chief Financial Officer and
Director
(Principal Financial Officer and
Principal Accounting Officer)
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S> <C>
1.1 Form of Underwriting Agreement or Distribution Agreement, as
applicable (to be filed by amendment to this Registration
Statement or as an exhibit to a Current Report on Form 8-K)
4.1 Restated Certificate of Incorporation of the Company (2)
4.2 Bylaws of the Company (3)
4.3 Form of certificate representing shares of Common Stock of the
Company (1)
4.4 Rights Agreement, dated as of September 29, 1995, between the
Company and LaSalle National Trust, N.A. as Rights Agent,
which includes as Exhibit A thereto the Form of Certificate of
Designation, Preferences and Rights, as Exhibit B thereto the
form of Right Certificate, and as Exhibit C thereto the
Summary of Stockholder Rights Plan (4)
4.5 Indenture, dated , 1996, from the Company to First
Trust of Illinois, National Association, as Trustee
4.6 Form of Debt Security (filed as part of Exhibit 4.5)
5.1 Opinion and consent of Jones, Day, Reavis & Pogue
12.1 Computation of ratio of earnings to fixed charges
23.1 Consent of Jones, Day, Reavis & Pogue (included in their
opinion filed as Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney of Donald W. Grinter
24.2 Power of Attorney of Jean-Pierre M. Ergas
24.3 Power of Attorney of Donald R. Gant
24.4 Power of Attorney of Clarence E. Johnson
24.5 Power of Attorney of D. Chisholm MacDonald
24.6 Power of Attorney of James E. Martin
24.7 Power of Attorney of George W. Peck IV
25.1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of First Trust of Illinois, National
Association, on Form T-1 relating to the Debt Securities
</TABLE>
<PAGE>
Exhibit 4.5
- --------------------------------------------------------------------------------
ABC RAIL PRODUCTS CORPORATION
THE COMPANY
AND
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION
THE TRUSTEE
-----
INDENTURE
DATED AS OF ___________, 1996
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............ 1
SECTION 101. Definitions........................................ 1
SECTION 102. Compliance Certificates and Opinions............... 8
SECTION 103. Form of Documents Delivered to Trustee............. 8
SECTION 104. Acts of Holders; Record Dates...................... 9
SECTION 105. Notices, Etc., to Trustee and Company.............. 11
SECTION 106. Notice to Holders; Waiver.......................... 11
SECTION 107. Applicability of Trust Indenture Act............... 11
SECTION 108. Effect of Headings and Table of Contents........... 12
SECTION 109. Successors and Assigns............................. 12
SECTION 110. Separability Clause................................ 12
SECTION 111. Benefits of Indenture.............................. 12
SECTION 112. Governing Law...................................... 12
SECTION 113. Legal Holidays..................................... 12
SECTION 114. Execution in Counterparts.......................... 13
ARTICLE TWO
SECURITY FORMS..................................................... 13
SECTION 201. Forms Generally.................................... 13
SECTION 202. Form of Trustee's Certificate of Authentication.... 13
ARTICLE THREE
THE SECURITIES..................................................... 14
SECTION 301. Amount Unlimited; Issuable in Series............... 14
SECTION 302. Denominations...................................... 16
SECTION 303. Execution, Authentication, Delivery and Dating..... 16
SECTION 304. Temporary Securities............................... 18
SECTION 305. Registration, Registration of Transfer and Exchange 19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities... 21
SECTION 307. Payment of Principal and Interest; Interest Rights
Preserved.......................................... 22
SECTION 308. Persons Deemed Owners.............................. 23
SECTION 309. Cancellation....................................... 24
SECTION 310. Computation of Interest............................ 24
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ARTICLE FOUR
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SATISFACTION AND DISCHARGE........................................ 24
SECTION 401. Satisfaction and Discharge of Indenture........... 24
SECTION 402. Application of Trust Money........................ 25
ARTICLE FIVE
REMEDIES.......................................................... 26
SECTION 501. Event of Default.................................. 26
SECTION 502. Acceleration of Maturity;
Rescission and Annulment.......................... 27
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee............................ 28
SECTION 504. Trustee May File Proofs of Claim.................. 29
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities........................................ 29
SECTION 506. Application of Money Collected.................... 29
SECTION 507. Limitation on Suits............................... 30
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest................... 31
SECTION 509. Restoration of Rights and Remedies................ 31
SECTION 510. Rights and Remedies Cumulative.................... 31
SECTION 511. Delay or Omission Not Waiver...................... 31
SECTION 512. Control by Holders................................ 31
SECTION 513. Waiver of Past Defaults........................... 32
SECTION 514. Undertaking for Costs............................. 32
ARTICLE SIX
THE TRUSTEE....................................................... 33
SECTION 601. Certain Duties and Responsibilities............... 33
SECTION 602. Notice of Defaults................................ 34
SECTION 603. Certain Rights of Trustee......................... 34
SECTION 604. Not Responsible for Recitals or
Issuance of Securities............................ 35
SECTION 605. May Hold Securities............................... 35
SECTION 606. Money Held in Trust............................... 35
SECTION 607. Compensation and Reimbursement.................... 36
SECTION 608. Disqualification; Conflicting Interests........... 36
SECTION 609. Corporate Trustee Required; Eligibility........... 41
SECTION 610. Registration and Removal;
Appointment of Successor.......................... 42
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SECTION 611. Acceptance of Appointment by Successor............ 43
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.......................................... 44
SECTION 613. Preferential Collection of Claims Against Company. 45
SECTION 614. Appointment of Authenticating Agent............... 48
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................. 51
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders........................................... 51
SECTION 702. Preservation of Information;
Communications to Holders......................... 52
SECTION 703. Reports by Trustee................................ 52
SECTION 704. Reports by Company................................ 53
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..................... 54
SECTION 801. Consolidations and Mergers of Company and
Conveyances Permitted Subject to Certain
Conditions........................................ 54
SECTION 802. Rights and Duties of Successor Corporation........ 54
SECTION 803. Officer's Certificate and Opinion of Counsel...... 55
ARTICLE NINE
SUPPLEMENTAL INDENTURES........................................... 55
SECTION 901. Supplemental Indentures Without
Consent of Holders................................ 55
SECTION 902. Supplemental Indentures with Consent of Holders... 56
SECTION 903. Execution of Supplemental Indentures; Opinions.... 57
SECTION 904. Effect of Supplemental Indentures................. 57
SECTION 905. Conformity with Trust Indenture Act............... 58
SECTION 906. Reference in Securities to Supplemental Indentures 58
ARTICLE TEN
COVENANTS......................................................... 59
SECTION 1001. Payment of Principal, Premium and Interest........ 59
SECTION 1002. Maintenance of Office or Agency................... 59
SECTION 1003. Money for Securities Payments To Be Held in Trust. 59
SECTION 1004. Statement by Officers as to Default............... 60
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SECTION 1005. Delivery of Certain Information................... 60
ARTICLE ELEVEN
REDEMPTION OF SECURITIES.......................................... 61
SECTION 1101. Applicability of Article.......................... 61
SECTION 1102. Election to Redeem; Notice to Trustee............. 61
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. 61
SECTION 1104. Notice of Redemption.............................. 62
SECTION 1105. Deposit of Redemption Price....................... 63
SECTION 1106. Securities Payable on Redemption Date............. 63
SECTION 1107. Securities Redeemed in Part....................... 63
ARTICLE TWELVE
SINKING FUNDS..................................................... 64
SECTION 1201. Applicability of this Article..................... 64
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities................................... 64
SECTION 1203. Redemption of Securities for Sinking Fund......... 64
ARTICLE THIRTEEN
DEFEASANCE........................................................ 65
SECTION 1301. Applicability of Article; Company's Option
to Effect Defeasance.............................. 65
SECTION 1302. Defeasance and Discharge.......................... 65
SECTION 1303. Covenant Defeasance............................... 65
SECTION 1304. Conditions of Defeasance.......................... 66
SECTION 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous................ 67
SECTION 1306. Reinstatement..................................... 68
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS..................... 68
SECTION 1401. Applicability of Article.......................... 68
SECTION 1402. Notice of Repurchase Date......................... 68
SECTION 1403. Deposit of Repurchase Price....................... 69
SECTION 1404. Securities Payable on Repurchase Date............. 69
SECTION 1405. Securities Repurchased in Part.................... 69
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ARTICLE FIFTEEN
CORPORATE OBLIGATION ONLY......................................... 70
SECTION 1501. Indenture and Securities Solely
Corporate Obligations............................. 70
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INDENTURE
INDENTURE, dated as of _____________, 1996, between ABC RAIL PRODUCTS
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware ( the "Company"), and FIRST TRUST OF ILLINOIS, NATIONAL
ASSOCIATION, a national banking association, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series unlimited as to principal amount, to bear such
rates of interest, to mature at such times and to have such other provisions as
in this Indenture provided.
B. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in order to declare the terms and conditions upon which the
Securities are authenticated, issued and delivered, and in consideration of the
premises and the purchase of the Securities by the Holders (as defined herein)
thereof, the Company and the Trustee covenant and agree with each other, for the
benefit of all Holders from time to time of the Securities or of any series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS
For all purposes of this Indenture and of any supplemental indenture
hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust
Indenture Act (as defined herein), either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
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(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(5) the word "or" is not exclusive;
(6) the word "including" means including without limitation; and
(7) words in the singular include the plural and words in the plural
include the singular.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of that Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution delivered to the Trustee
that is certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification.
"Business Day" when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York, or Chicago, Illinois, and the Place
of Payment are authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
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"Company Request" or "Company Order" means a written request or order
delivered to the Trustee that is signed in the name of the Company by its
Chairman of the Board, its President or any Vice President, its Chief Financial
Officer, and by its Treasurer, any Assistant Treasurer, its Controller, any
Assistant Controller, its Secretary or any Assistant Secretary.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 400 North Michigan Avenue, Two South, Chicago,
Illinois, 60611, Attention: Corporate Trust Department.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 301.
"Direction" has the meaning specified in Section 104(c).
"Exempt Securities" has the meaning given it in Section 1008.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for borrowed money having a maturity
of more than 12 months from the date as of which the amount thereof is to be
determined.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession in the United States.
"Global Security" means a Security evidencing all or part of a series of
Securities, issued to the Depositary for such series or its nominee, and
registered in the name of such Depositary or nominee.
"Global Security Registered Owner" has the meaning given it in Section 305.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into
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pursuant to the applicable provisions hereof. The term "Indenture" shall also
include the terms of particular series of Securities established as contemplated
by Section 301, whether or not a supplemental indenture is entered into with
respect thereto.
"Interest," when used with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, occurrence of any Repurchase
Date or otherwise.
"Officer's Certificate" means a certificate delivered to the Trustee that
is signed by the Company's Chairman of the Board, its President or any Vice
President, and by its Treasurer, any Assistant Treasurer, its Controller, any
Assistant Controller, its Secretary or any Assistant Secretary.
"Opinion of Counsel" means a written opinion of counsel from counsel for
the Company (who may be an employee of the Company), or outside counsel for the
Company.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to any series of Securities, means,
as of the date of determination, all Securities of that series which are
authenticated and delivered under this Indenture, except:
(i) Securities of that series previously cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities of that series for whose payment or redemption
money in the necessary amount has been previously deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities of that series that have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by
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a bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
(A) the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (B) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided for such Security on
the date of original issuance thereof, as contemplated by Section 301, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (A) above) of such Security, and (C) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities that the Trustee knows to be so owned
shall be so disregarded. Notwithstanding the foregoing clause (C), Securities so
owned by the Company, such obligor, or such Affiliate that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities so long as the pledgee is not the Company or any other obligor upon
the Securities or an Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium (if any), or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or any other entity or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means such city or political subdivision thereof where the principal of, premium
(if any), and interest on the Securities of that series are payable as specified
for such Securities as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
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"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the fifteenth day (whether or not a
Business Day) next preceding such Interest Payment Date or such other date with
respect to Securities of any series specified as contemplated by Section 301.
"Repurchase Date," when used with respect to any Security of any series to
be repurchased, means the date, if any, fixed for such repurchase pursuant to
Section 301.
"Repurchase Price," when used with respect to any Security of any series to
be repurchased, means the price, if any, at which such Security is to be
repurchased pursuant to Section 301.
"Responsible Officer," when used with respect to the Trustee, means the
Chairman of the Board of Directors, the President, any Vice President, any
Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer,
any Assistant Treasurer, any Trust Officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Trustee's Corporate
Trust Office because of that person's knowledge of and familiarity with the
particular subject.
"Restricted Security" means a Security that is a "restricted security" as
defined in Rule 144(a)(3) under the Securities Act or any successor provision
thereto or a Security that by its terms can only be sold pursuant to Regulation
S, Rule 144, or Rule 144A under the Securities Act (or successor provisions
thereto) or in a transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4 of the Securities Act; provided, however,
that once the Security is sold pursuant to the provisions of Rule 144, including
Rule 144(k), it will cease to be a Restricted Security.
"Rule 144A Information" means the information satisfying the requirements
of Rule 144A(d)(4) under the Securities Act on the date hereof.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities of any series authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
6
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"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation, association, partnership or other entity
of which more than 80% of the outstanding Voting Stock is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this instrument is qualified (to the extent
required by law) under such act.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President" when used with respect to the Trustee means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president," and when used with respect to the Company
means any vice president who is an officer of the Company, whether or not
designated by a number or word or words before such title.
"Voting Stock" means securities of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such corporation, association,
partnership or other entity (irrespective of whether or not at the time
securities of any other class or classes shall have or might have voting power
by reason of the happening of any contingency).
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SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which such officer's certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters or information which is in the possession of the
Company, upon a certificate or opinion of, or representations by, an
officer or officers of the Company, unless such counsel knows that the
certificate or opinion or representations with respect to such matters are
erroneous. Any Opinion of Counsel may be
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stated to be based on the opinion of other counsel, in which event it shall
be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is expressly hereby
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing pointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including
a Depositary that is a Holder of a Global Security, may make, give or take,
by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
or permitted by this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her
the execution thereof. Where such execution is by an officer of a
corporation or a member of a partnership, acting on behalf of such
corporation or partnership, such certificate or affidavit shall also
constitute sufficient proof of such officer's authority. Notwithstanding
the foregoing, the fact and date of the execution of any such instrument or
writing, and the authority of the Person executing the same, may also be
proved in any other manner that the Trustee deems sufficient.
(c) Except as provided in the next paragraph of this Subsection (c) or
as specifically provided otherwise pursuant to Section 301 with respect to
any series of Securities, the Company may set any day as the record date
for the purpose of determining the Holders of Securities of any series
entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders of Securities of
such series. With regard to any record date set pursuant to this Subsection
(c), the Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons, shall
be entitled to give or take the
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relevant action, whether or not such Holders remain Holders after such
record date. With regard to any action that may be given or taken hereunder
only by Holders of a requisite principal amount of Outstanding Securities
of any series (or their duly appointed agents) and for which a record date
is set pursuant to this Subsection (c), the Company may, at its option, set
an expiration date after which no such action purported to be given or
taken by any Holder shall be effective hereunder unless given or taken on
or prior to such expiration date by Holders of the requisite principal
amounts of Outstanding Securities of such series on such record date (or
their duly appointed agents). On or prior to any expiration date set
pursuant to this Subsection (c), the Company may, on one or more occasions
at its option, extend such date to any later date. Nothing in this
Subsection (c) shall prevent any Holder (or any duly appointed agent
thereof) from giving or taking, after any expiration date, any action
identical to, or, at any time, contrary to or different from any action
given or taken, or purported to have been given or taken, hereunder by a
Holder on or prior to such date, in which event the Company may set a
record date in respect hereof pursuant to this Subsection (c).
Notwithstanding the foregoing, upon receipt by the Trustee, with
respect to Securities of any series, of (i) any Notice of Default pursuant
to Section 501, (ii) any declaration of acceleration, or any rescission and
annulment of any such declaration pursuant to Section 502, or (iii) any
direction given pursuant to Section 512 (any such notice, declaration,
rescission and annulment, or direction being referred to herein as a
"Direction"), a record date shall automatically and without any other
action by any Person be set for the purpose of determining the Holders of
Outstanding Securities of such series entitled to join in such Direction,
which record date shall be the close of business on the day the Trustee
receives such Direction. The Holders of Outstanding Securities of such
series on such record date (or their duly appointed agents), and only such
Persons, shall be entitled to join in such Direction, whether or not such
Holders remain Holders after such record date; provided that, unless such
Direction shall have become effective by virtue of Holders of the requisite
principal amount of Outstanding Securities of such series on such record
date (or their duly appointed agents) having joined therein on or prior to
the 90th day after such record date, such Direction shall automatically and
without any action by any Person be cancelled and be of no further effect.
Nothing in this paragraph shall prevent a Holder (or a duly appointed agent
thereof) from giving, before or after the expiration of such 90-day period,
a Direction contrary to or different from, or, after the expiration of such
period, identical to, a Direction that has been cancelled pursuant to the
proviso to the preceding sentence, in which event a new record date in
respect thereof shall be set pursuant to this Subsection (c).
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange thereof or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating
Agent, or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
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SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office or at such other
address as previously furnished in writing to the Holders and the Company
by the Trustee for such purpose, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, registered or certified mail postage prepaid, to the
Company addressed to it at 200 South Michigan Avenue, Suite 1300, Chicago,
Illinois, 60604, Attn: Senior Vice President, or at such other address as
previously furnished in writing to the Trustee by the Company for such
purpose.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Except as otherwise provided in any supplemental indenture with respect to
Holders of Securities of any series issued pursuant to such supplemental
indenture, where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at such Holder's address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to the Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. APPLICABILITY OF TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
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SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities of any series
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Security Registrar, any
Paying Agent, any Authenticating Agent, and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of Illinois.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Repurchase
Date, sinking fund payment date or Stated Maturity or Maturity of any Security
of any series or any date by which any report or other information is due
pursuant to any provision of this Indenture shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or such Securities)
payment of interest or principal (and premium, if any) or delivery of such
report or information need not be made on or by such date, but may be made on
the next succeeding Business Day with the same force and effect (a) with respect
to any payment, as if made on the Interest Payment Date, Repurchase Date or
Redemption Date, sinking fund payment date or at the Stated Maturity or
Maturity, and (b) with respect to any such report or other information, as if
delivered by the stated due date. No interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, Repurchase Date, sinking
fund payment date or Stated Maturity or Maturity, as the case may be, to such
next succeeding Business Day.
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SECTION 114. EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form as shall
be established without the approval of any Holders by or pursuant to one or more
Board Resolutions in accordance with Section 301 or in one or more indentures
supplemental hereto, in each case, including without limitation such appropriate
legends, insertions, omissions, substitutions and other variations as are
required or are not prohibited by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as necessary or appropriate to comply with any
law or with any rule or regulation made pursuant thereto or with any rules or
regulations of any securities exchange on which such series of Securities may be
listed, or to conform to general usage, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The definitive Securities of each series shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION
as Trustee
By:
-----------------------------
Authorized Signatory
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities of all series that may be
issued, executed, authenticated, delivered and Outstanding under this Indenture
is unlimited.
The Securities may be issued in one or more series. There shall be
established, without the approval of any Holders, by or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, there
shall be set forth in an Officer's Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable:
(1) the title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities of the series authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1405 and except for any Securities of the series which, pursuant to Section
303, are deemed never to have been authenticated and delivered hereunder);
(3) if other than the Trustee, the identity of each Security Registrar
and Paying Agent;
(4) the date or dates, or the method by which such date or dates are
determined or extended, on which the principal and premium (if any) of the
Securities of the series shall be payable;
(5) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, or the method by which such
rates will be determined, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable, or the method by which such date will be
determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve thirty-day months;
(6) if other than the fifteenth day next preceding an Interest Payment
Date, the Regular Record Date with respect to an Interest Payment Date;
(7) the place or places, if any, other than or in addition to the
Corporate Trust Office, where the principal of, premium (if any), and
interest on Securities of the series shall be payable;
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(8) the period or periods within which, the price or prices at which,
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company if the Company
is to have such option;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions
upon which Securities of the series shall be redeemed, repaid, or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and integral multiples
thereof, the denominations in which Securities of the series shall be
issuable;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which payment of the principal,
premium (if any), and interest on any Securities of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(12) if the amount of payments of principal of, premium (if any), or
interest on any Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(13) if the principal of, premium (if any), or interest on any
Securities of the series is to be payable, at the election of the Company
or a Holder thereof, in one or more currencies or currency units other than
that or those in which the Securities are stated to be payable, the
currency, currencies or currency units in which payment of the principal
of, premium (if any), and interest on Securities of such series as to which
such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or provable in bankruptcy pursuant to Sections 503 and 504;
(15) the application, if any, of either or both of Section 1302 and
Section 1303 to the Securities of the series;
(16) any addition to or change in the Events of Default with respect
to the Securities of the series and any change in the right of the Trustee
or the Holders to declare the principal of, premium (if any), and interest
on, such Securities due and payable;
(17) any addition to or change in the covenants and definitions
currently set forth in this Indenture or in the terms currently set forth
in Article Eight or Article Ten;
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(18) if and as applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the Depositary or Depositaries for such Global Security
or Global Securities and any circumstances other than those set forth in
Section 305 in which any such Global Security may be transferred to, and
registered and exchanged for Securities of the series registered in the
name of, a Person other than the Depositary for such Global Security or
nominee thereof, and in which any such transfer may be registered; and
(19) any other terms of the series, including, without limitation, any
subordination provisions (which terms shall not be prohibited by the
provisions of this Indenture, except as permitted by Section 901(4)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officer's Certificate referred to
above or in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time. Unless otherwise provided,
Securities within a single series may have different terms and a series may be
reopened, without the consent of the Holders, for issuance of additional
Securities of such series.
If any of the terms of the series are established by action taken by or
pursuant to one or more Board Resolutions, a copy of an appropriate record of
such action(s) shall be certified by the Secretary or any Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officer's Certificate setting forth the terms of the Securities of such series.
SECTION 302. DENOMINATIONS.
Unless other denominations and amounts shall be fixed from time to time by
or pursuant to one or more Board Resolutions, the Securities of each series
shall be issuable in registered form without coupons in such denominations as
shall be specified as contemplated by Section 301. In the absence of any
contrary provisions with respect to the Securities of any series pursuant to
Section 301, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple of $1,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, any of its Vice Presidents, its Chief Financial
Officer, the Treasurer or any Assistant Treasurer and attested by its Secretary
or any of its Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who,
at the time such manual or facsimile signatures were affixed to such Securities,
were properly serving as such officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities as
provided in this Indenture. If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon,
(a) a copy of any Board Resolution;
(b) an executed supplemental indenture, if any;
(c) an Officer's Certificate pursuant to Section 301; and
(d) an Opinion of Counsel stating:
(1) if the form of such Securities has been established by or pursuant
to one or more Board Resolutions as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to one or more Board Resolutions as permitted by Section 301, that
such terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities have been duly authorized and, when executed,
authenticated, issued and delivered in accordance with the terms of this
Indenture, and assuming due authentication thereof by the Trustee, and when
such Securities are delivered and paid for by the purchaser thereof, will
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance or transfer, reorganization, moratorium
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; provided, however, that such
Opinion of Counsel need express no opinion as to whether a court in the
United States would render a money judgment in a currency other than that
of the United States and the counsel rendering such Opinion of Counsel
shall be entitled to assume for purposes of such Opinion of Counsel that
the internal laws of any state other than Illinois are the same as the
internal laws of Illinois.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under such Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
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Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of any series are not to be originally issued at
one time, it shall not be necessary to deliver the Officer's Certificate
otherwise required pursuant to Section 301 or a Company Order or an Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated and issued as of the date of its
authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its Authenticating Agent by manual signature, and
such certificate upon any such Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any such Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities of that series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities of that series in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be in the form of Global
Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable, subject to Section 305 hereof,
for definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
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SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company may act as, or may appoint an agent or the Trustee to act as,
the depository for the safekeeping of certificated Securities, issuing agent of
the Securities and registrar for the registration of Securities and transfers of
Securities (the "Security Registrar") pursuant to Section 301. The Company shall
cause to be kept a register (the register maintained by the Trustee, any agent
or in any other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and transfers of Securities. Unless
the Company or another agent is designated as the Security Registrar with
respect to any series of Securities pursuant to Section 301, the Trustee is
hereby appointed "Security Registrar" of each series of Securities for the
purpose of registering Securities and transfers of Securities on such Security
Register as herein provided at the Corporate Trust Office.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor bearing a number not contemporaneously outstanding. No Security to be
issued upon exchange of an Outstanding Security shall be issued in a
denomination less than $1,000 unless otherwise specified pursuant to Section
301.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount and denomination or
tenor, upon surrender of such Securities to be exchanged at such office or
agency, and upon payment of any taxes or governmental charges as hereinafter
provided. Whenever any such Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities of any series issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities of the same series surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee shall require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of such
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1405 not
involving any transfer.
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The Company shall not be required (i) to issue, register the transfer of,
or exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on the day of the mailing of a
notice of redemption of Securities of that series selected for redemption under
Section 1104; or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any such Security being redeemed in part; or (iii) to register the transfer of
or exchange any Security during a period beginning five days before the date of
Maturity with respect to such Securities and ending on such date of Maturity.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 or Sections 304, 906, 1107 and 1405 for Securities
registered in the name of, and no transfer of a Global Security of any series
may be registered to, any Person other than the Depositary for such Security or
its nominee unless (1) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if the Company
determines that the Depositary is unable to continue as Depositary and the
Company thereupon fails to appoint a successor Depositary; (2) the Company
executes and delivers to the Trustee a Company Order that such Global Security
shall be so exchangeable and the transfer thereof so registerable; (3) the
Company provides for such exchange pursuant to Section 301; or (4) there shall
have occurred and be continuing an Event of Default, or an event which after
notice or lapse of time would be an Event of Default, with respect to the
Securities evidenced by such Global Security. Upon the occurrence in respect of
any Global Security of any series of any one or more of the conditions specified
in clauses (1), (2), (3) or (4) of the preceding sentence or such other
conditions as may be specified as contemplated by Section 301 for such series,
such Global Security may be exchanged for Securities of the same series
registered in the names of, and the transfer of such Global Security may be
registered to, such Persons (including Persons other than the Depositary with
respect to such series and its nominees) as such Depositary shall direct.
Notwithstanding any other provisions of this Indenture, any Security of any
series authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, any Global Security of that series shall also be a
Global Security and shall bear the legend specified in the Officer's Certificate
or supplemental indenture specified in Section 201 except for any Security of
that series authenticated and delivered in exchange for, or upon registration of
transfer of, a Global Security pursuant to the preceding sentence.
In the event that a Global Security is deposited upon issuance with a
Depositary, it will be registered in the name of the Depositary or a nominee of
the Depositary (the "Global Security Registered Owner"). Payments in respect of
the principal of, premium (if any) and interest on any Securities registered in
the name of the Global Security Registered Owner will be payable to the Global
Security Registered Owner in its capacity as the registered owner of such Global
Security. The Company and the Trustee may treat the person in whose name(s) the
Securities, including the Global Security, are registered as the owner thereof
for the purpose of receiving such payments and for any and all other purposes
whatsoever. None of the Company, the Trustee, the Security Registrar, the Paying
Agent or any agent of the Company or the Trustee will have any responsibility or
liability for (i) any aspect of the records relating to or payments made on
account of the beneficial ownership interests of the Global Security by the
Depositary
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or any of its participants, or for maintaining, supervising or reviewing any
records of the Depositary or any of its participants relating to the beneficial
ownership interests of the Global Security; (ii) the payments to the beneficial
owners of the Global Security of amounts paid to the Global Security Registered
Owner; or (iii) for any other matter relating to the actions and practices of
the Depositary or any of its participants. Neither the Company nor the Trustee
will be liable for any delay by the Global Security Registered Owner or the
Depositary or any of its participants in identifying the beneficial owners of
the Securities, and the Company and the Trustee may conclusively rely on, and
will be protected in relying on, instructions from the Global Security
Registered Owner or the Depositary for all purposes (including with respect to
the registration and delivery, and the respective principal amounts, of the
Securities to be issued).
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee or the Company,
together with such security, bond or indemnity as may be required by the Company
or the Trustee to save each of them and any agent of either of them harmless,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security; and (ii)
such security, bond or indemnity in a form satisfactory to both of them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous paragraphs of this Section,
in case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any Security under this Section, the Company or the
Trustee shall require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee), if any, connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security of the same series shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately and with any and all other Securities of that series duly issued
hereunder. A new Security shall have such legends as are on the old Security,
unless the Company provides otherwise.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS PRESERVED.
Principal, premium (if any), and interest due on a Security at Maturity or
upon redemption or repurchase will be paid by wire transfer in immediately
available funds against presentation and surrender of the Security by the Holder
thereof at the office of the Paying Agent, but only if appropriate wire transfer
instructions have been received in writing (or such other means as deemed
acceptable by the Paying Agent) by the Paying Agent not less than 15 days before
Maturity or the Redemption Date or Repurchase Date. In the event such
instructions are not received by such 15th day, such principal, premium (if
any), and interest due will be paid by check against such presentation and
surrender.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. All interest payments on any Security (other than interest
due at Maturity or on redemption or repayment) will be made by mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 301, to the address of such Person as it appears on
the Security Register. Notwithstanding the foregoing, any Holder of Securities
of any series which pay interest on the same Interest Payment Date and which are
in an aggregate principal amount in excess of $10,000,000 may elect to receive
payments of interest with respect to such series (other than interest due at
Maturity or on redemption or repayment) via wire transfer in immediately
available funds to a bank in New York, New York (or other bank approved by the
Paying Agent) by making arrangements therefor in writing (or such other means as
deemed acceptable by the Paying Agent) with the Paying Agent not later than the
Regular Record Date immediately preceding the applicable Interest Payment Date.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for
Securities of such series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of
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the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class posted prepaid,
to each Holder of Securities of such series at such Holder's address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of such
series in respect of which interest is in default are listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of, premium (if any), and
(subject to Sections 305 and 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and none of
the Company, the Trustee, or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with respect to such
Global Security or impair, as between such Depositary and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Global Security.
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SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all such Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section. The Trustee is hereby directed by the Company to destroy all
cancelled Securities held by the Trustee or hold such Securities in accordance
with the Trustee's standard retention policy, and the Trustee shall provide the
Company with a certificate of a Responsible Officer certifying as to the
destruction or retention of such Securities, all in accordance with the
Trustee's customary procedures.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months. No interest
will accrue with respect to the 31st day of any month.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect with respect to any
series of Securities specified in a Company Request (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such series of Securities when:
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid for as provided in Section 306;
and (ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
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(B) all Securities of such series not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal, premium (if any), and interest to the date of
such deposit (in the case of such Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such series of Securities; and
(3) the Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series of Securities, the obligations of the Company and the
Trustee to the Holders of Securities of other series not so satisfied and
discharged, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614, and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities of each
series and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, for all sums due or to become due
thereon for principal, premium (if any), and interest.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENT OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of that default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Security of that
series (other than a covenant or warranty a default in the performance of
which or the breach of which is elsewhere in this Section specifically
dealt with or that has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and
continuance of that default or breach for a period of 30 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying the default or breach and requiring it to be remedied and
stating that the notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law; or (B) a decree or order adjudging the
Company bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of all or
substantially all of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated bankrupt or insolvent,
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or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable federal or
state law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
of all or substantially all of its property, or the admission by it of an
assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount), plus any interest accrued on the Securities of such series to the date
of declaration, shall become immediately due and payable.
Upon payment (i) of (A) such principal amount; and (B) such interest; and
(ii) of interest on any overdue principal and overdue interest at the rate or
rates prescribed therefor in the Securities of such series (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of principal of and interest
on the Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences (and the particular event on which the declaration of acceleration
is based shall no longer be grounds for a declaration of acceleration) if both:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all Outstanding
Securities of that series,
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(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor or in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal (or premium, if any) or
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of Securities of such series, the whole amount then due and payable on
such Securities for principal, premium (if any), and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal, premium (if any), and overdue interest, at the rate or rates
prescribed therefor in such series of Securities, and in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement
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of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, adjustment, composition or other judicial proceeding
relative to the Company (or any other obligor upon the Securities of any
series), its property or its creditors, the Trustee (irrespective of whether the
principal of the Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium (if any), or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise, to (i) file and prove a claim for
the whole amount, or such lesser amount as may be provided for in the Securities
of such series, of principal, premium (if any), and interest (if any) owing and
unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and (ii) collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
of any series or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or any of the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such
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money on account of principal, premium (if any) or interest, upon presentation
of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of, premium (if any) and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal, premium (if any) and
interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or
any other Person or Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that same
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that same series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that same series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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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 of the principal of, premium (if any), and (subject to Section 307) any
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date or, in the case
of repurchase at the option of the Holder, on the Repurchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of Securities of any
series to exercise any right or remedy accruing upon any Event of Default with
respect to such series of Securities shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the applicable
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power
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conferred on the Trustee, with respect to the applicable Outstanding Securities
of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
the Outstanding Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of, premium (if any), or interest
on any Security of such series when due (other than amounts due and payable
solely upon acceleration pursuant to Section 502) unless theretofore paid
in full and cured in accordance with the terms of this Indenture, or
(2) in respect of a covenant or provision hereof which under Section
902 cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder by such Holder's
acceptance of Securities shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, to the filing by any party litigant in
such suit other than the Trustee of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of, premium (if any), or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
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ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) With respect to Securities of any series, except during the
continuance of an Event of Default with respect to the Securities of such
series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) With respect to Securities of any series, in case an Event of
Default with respect to the Securities of such series has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent individual would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it with respect to Securities of any series in
good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of such series, determined
as provided in and subject to Section 512, relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
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(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of, premium (if any), or
interest on any security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Securities of such series; and
provided, however, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 90 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series. Except with respect to an Event of Default
pursuant to Section 501(1), (2) or (3), the Trustee shall not be charged with
knowledge of any default or Event of Default hereunder unless the written notice
thereof shall have been given to a Responsible Officer at the Corporate Trust
Office by the Company, a Paying Agent, any Holder or an agent of any Holder.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
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(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company
pertaining to the Securities, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Authenticating Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company
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with the same rights it would have if it were not Trustee, Paying Agent
Authenticating Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of any
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indentify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, willful misconduct
or bad faith on its own part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other
similar law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest (as
defined in this Section) with respect to the Securities of any series then,
within 90 days after ascertaining that it has such conflicting interest and
if the default (as defined in this Section) to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate
such conflicting interest or, except as otherwise provided below in this
Section, resign with respect to the Securities of that series in the manner
and with the effect hereinafter specified in this Article.
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(b) In the event that the Trustee shall fail to comply with the provisions
of Subsection (a) of this Section with respect to the Securities of any series,
the Trustee shall, within 10 days after the expiration of such 90-day period,
transmit by mail to the Company and all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the Trustee shall be deemed to have
a conflicting interest with respect to the Securities of any series if the
Securities of such series are in default (as determined in accordance with the
provisions of Section 501, but exclusive of any period of grace or requirement
of notice) and
(1) the Trustee is trustee under another indenture under which any
other securities, or certificates of interest or participation in any
securities, of the Company are outstanding or is trustee for more than one
outstanding series of securities (as defined in this Section) under a
single indenture of the Company, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Securities issued under this Indenture; provided that there shall be
excluded from the operation of this Section other series of Securities
issued under this Indenture and any other indenture or indentures under
which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if any such other
indenture or indentures (and all series of securities issuable thereunder)
are wholly unsecured and rank equally with the Securities of such series,
and such other indenture or indentures (and such series) are qualified
under the Trust Indenture Act, except as otherwise set forth in Section
310(b)(1) of the Trust Indenture Act;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee, or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director and/or an executive officer of
the Trustee and a director and/or an executive officer of the Company, but
may not be at the same time an executive officer of both the Trustee and
the Company; (ii) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a director
and/or an executive officer of the Trustee and a director of the Company;
and (iii) the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
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(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the
Securities issued under this Indenture and securities issued under any
other indenture for which the Trustee is also trustee, or (ii) 10% or more
of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
(9) the Trustee owns, on the date of default under the Securities of
such series (as determined in accordance with the provisions of Section
501, but exclusive of any period of grace or requirement of notice) or any
anniversary of such default while such default upon the Securities of such
series remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or conservator, or
in any other similar capacity, an aggregate of 25% or more of the voting
securities, or of any class of security, of any person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this Subsection. As
to any such securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not apply,
for a period of two years from the date of such acquisition, to the extent
that such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after the
dates of any such default upon the Securities of such series and annually
in each succeeding year that the Securities of such series remain in
default, the Trustee shall make a check of its holdings of such securities
in any of the above-mentioned capacities as of such date. If the Company
fails to make payment in full of the principal of, premium (if any), or
interest on any of the Securities of any series when and as the same
becomes due and payable, and such failure continues for 30 days thereafter,
the Trustee shall make a prompt check of its holdings of such securities in
any of the above-mentioned capacities as of the date of the expiration of
such 30-day period,
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and after such date, notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the Trustee, with sole or joint
control over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this Subsection;
or
(10) except under the circumstances described in Subsections (1), (3),
(4), (5) or (6) of Section 613(b), the Trustee shall be or shall become a
creditor of the Company.
For purposes of paragraph (1) of this Subsection, the term "series of
securities" or "series" means a series, class, or group of securities
issuable under an indenture pursuant to whose terms holders of one such
series may vote to direct the indenture trustee, or otherwise take action
pursuant to a vote of such holders, separately from holders of another such
series; provided that "series of securities" or "series" shall not include
any series of securities issuable under an indenture if all such series
rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraphs (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but
shall not include any note or other evidence of indebtedness issued to
evidence an obligation to repay moneys lent to a person by one or more
banks, trust companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (ii) an
obligation shall be deemed to be "in default" when a default in payment of
principal shall have continued for 30 days or more and shall not have been
cured; and (iii) the Trustee shall not be deemed to be the owner or holder
of (A) any security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in clause
(ii) above, or (B) any security which it holds as collateral security under
this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the Company,
means every person who, within one year prior to the time as of which the
determination is made, has purchased from the Company with a view to, or
has offered or sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has participated
or has had a direct or indirect participation in any such undertaking, or
has participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include a
person whose
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interest was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers' commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are currently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities of any
series.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entities the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount," when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
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(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or interest
or otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof; provided, however, that any voting securities of an issuer
shall be deemed outstanding if any person other than the issuer is
entitled to exercise voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
(f) Except in the case of a default in the payment of the principal
of, premium (if any) or interest on any of the Securities of any series, or in
the payment of any sinking fund installment, the Trustee shall not be required
to resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission, and after opportunity for
hearing thereon, that (i) a default hereunder may be cured or waived during a
reasonable period and under the procedures described in such application and
(ii) a stay of the Trustee's duty to resign will not be inconsistent with the
interest of the Holders of the Securities of such series. The filing of such an
application shall automatically stay the performance of the duty to resign until
the Commission orders otherwise.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States or
of any state of the United States which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
federal or state authority. Such Trustee shall have a combined capital and
surplus of at least $10,000,000. If such Person publishes reports of condition
at least annually, pursuant
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to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. Neither the Company nor any
Person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee hereunder. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. REGISTRATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving not less than 30 days prior written notice to the
Company specifying its intention to resign, the reason therefor, and specifying
the date on which the resignation shall become effective. Notwithstanding the
foregoing, unless the reason for such resignation is a conflict pursuant to
Section 608, then such Trustee must resign with respect to all Securities if the
Trustee resigns with respect to any series of Securities. If the instrument of
acceptance by a successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) The Trustee may be removed with respect to any or all series of
Securities at any time upon 30 days notice by the filing with it of an
instrument in writing signed on behalf of the Company by a duly authorized
officer of the Company specifying such removal and the date on which it is to
become effective.
(e) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security of any series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder who has been a bona fide Holder of a Security of any series at least
six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public
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officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee with respect to any series of Securities
or all Securities, or (ii) subject to Section 514, any Holder who has been
a bona fide Holder of a Security of any series for at least six months may,
on behalf of himself or herself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with
respect to such series of Securities or all Securities and the appointment
of a successor Trustee or Trustees.
(f) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself or herself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(g) The Company shall give or cause to be given notice of each resignation
and each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the
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successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments reasonably necessary for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution
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or filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not delivered,
by or on behalf of the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In case
any Securities shall have not been authenticated by such predecessor Trustee,
any successor Trustee may authenticate and deliver such Securities in either its
own name or that of its predecessor Trustee, with full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee of Securities
of any series shall be, or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company within three months prior to a default upon
Securities of such series, as defined in Subsection (c) of this Section, or
subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually and the Holders of the Securities of such series:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of set-
off which the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in
cash, securities or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the federal Bankruptcy Code (as defined
herein) or any other applicable federal or state law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three-month period;
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(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in Subsection (c) of this Section
would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for
property held as security at the time of such substitution shall, to
the extent of the fair value of the property released, have the same
status as the property released, and, to the extent that any claim
referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-
existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall
be apportioned between the Trustee and the Holders of the Securities
of such series in such manner that the Trustee and such Holders
realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization
pursuant to the federal Bankruptcy Code or any other applicable
federal or state law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the
respective claims of the Trustee and such Holders dividends on claims
filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the federal Bankruptcy Code
or any other applicable federal or state law, but after crediting
thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used
in this paragraph, with respect to any claim, the term "dividends"
shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant
to the federal Bankruptcy Code or any other applicable federal or
state law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with
respect to the secured portion, if any, of such claim. The court in
which such bankruptcy, receivership, or proceeding for reorganization
is pending shall have jurisdiction (i) to apportion between the
Trustee and such Holders, in accordance with the provisions of this
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paragraph, the funds and property held in such special account and
proceeds thereof, or (ii) in lieu of such apportionment, in whole or
in part, to give to the provisions of this paragraph due consideration
in determining the fairness of the distributions to be made to the
Trustee and such Holders with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise the
value of any securities or other property held in such special account
or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of
such claims, or otherwise, to apply the provisions of this paragraph
as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the
provisions of this Subsection as though such resignation or removal
had not occurred. If any Trustee has resigned or been removed prior to
the beginning of such three-month period, it shall be subject to the
provisions of this Subsection if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account if such
Trustee had continued as Trustee, occurred after the beginning of
such three-month period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders of Securities of the appropriate
series at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in cash transactions as defined in Subsection (c) of this
Section;
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(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities of such series or
upon the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(3) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating, or incurring of the
draft, bill of exchange, acceptance or obligation.
(4) The term "Company" means any obligor upon the Securities.
(5) The term "federal Bankruptcy Code" means the Bankruptcy Code,
Title 11 of the United States Code.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, a
copy of which instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a
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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 Stated of America, any state thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $10,000,000 and subject
to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition of published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of securities may resign at any time
by giving written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee for such Securities may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effects as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in substantially the following form:
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This is one of the Securities of the series designated therein referred to
in the within mentioned Indenture.
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION
as Trustee
By:
---------------------------------
As Authenticating Agent
By:
---------------------------------
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date (or, if there is no Regular Record Date relating to a series, semi-
annually on the dates set forth in or pursuant to the Board Resolution or
supplemental indenture with respect to such series), a list, in such form
as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of such date, and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished,
provided, however, that so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Trustee and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
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If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interest of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
(c) Every Holder, by receiving and holding Securities, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance with
Section 702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
pursuant to a request made under Section 702(b).
(d) The Company agrees with the Trustee that the Trustee shall not be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 7.02(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Section 7.02(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) The term "reporting date," as used in this Section, means April 15.
Within 60 days after the reporting date in each year (beginning with April 15,
1997), the Trustee shall transmit by mail to all Holders of Securities, as their
names and addresses appear in the Security Register, a brief report dated as of
such date in accordance with, and only if required under, Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall transmit by mail to all Holders of Securities, as
their names and addresses appear in the Security Register, a brief report with
respect to the matters specified in, and within the times required under,
Section 313(b) of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Holders of Securities, be filed by the Trustee with the Commission, each stock
exchange upon which the Securities are listed, and also with the Company. The
Company will notify the Trustee if and when Securities of any series are listed
on any stock exchange.
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SECTION 704. REPORTS BY COMPANY.
The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission; and
(4) deliver to the Trustee, forthwith upon becoming aware of any
default or defaults in the performance of any covenant, agreement or
condition contained in this Indenture, and in any event not less often than
annually, an Officer's Certificate specifying such default or defaults, or
the extent of the Company's compliance with all conditions and covenants
hereof (which compliance shall be determined without regard to any period
of grace or notice provided hereunder), as the case may be.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. CONSOLIDATIONS AND MERGES OF COMPANY AND CONVEYANCES PERMITTED
SUBJECT TO CERTAIN CONDITIONS
The Company shall not consolidate with, or sell or convey all or
substantially all of its assets to, or merge with or into any other person or
entity unless (i) either the Company shall be the continuing corporation, or the
successor shall be a corporation organized and existing under the laws of the
United States of America or a state thereof and the successor corporation shall
expressly assume the due and punctual payment of the principal of and interest
on all the Securities and the due and punctual performance and observance of all
of the covenants and conditions of the Company under this Indenture by
supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such corporation; (ii) the Company or the successor corporation,
as the case may be, shall not, immediately after the merger or consolidation, or
the sale or conveyance, be in default in the performance of any such covenant or
condition; and (iii) after giving effect to the transaction, no event which,
after notice or lapse of time, would become an Event of Default shall have
occurred or be continuing.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such consolidation, merger, sale or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation shall be relieved of any further obligation under this Indenture and
the Securities. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities of any series so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities of that series
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
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SECTION 803. OFFICER'S CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 601 and 603, may receive
an Officer's Certificate and an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale or conveyance, and any such assumption,
complies with the provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by or
pursuant to one or more Board Resolutions, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee and the Company, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities of any series in bearer form, registrable or not registrable as
to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities of any series in uncertificated form;
or
(4) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided,
however, that any such addition, change or elimination shall either (i) not
adversely affect the rights of the Holders of Outstanding Securities of any
series in any material respect, or (ii) not apply to any Outstanding
Securities of any series created prior to the execution of such
supplemental indenture where such addition, change or elimination has an
adverse effect on the rights of the Holders of such Outstanding Securities
in any material respect; or
(5) to secure the Securities of any series; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301;
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(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(8) to cure any ambiguity or defect in and to correct or supplement
any provision in this Indenture or any Security of any series that may be
inconsistent with any other provision in this Indenture or in the Security
of such series, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided, however, that any such
action pursuant to this clause (8) shall not adversely affect the rights of
the Holders of Outstanding Securities of any series in any material
respect; or
(9) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect qualification of this
Indenture under the Trust Indenture Act, or under any similar federal
statute hereafter enacted, and to add to this Indenture such other
provisions as may be expressly permitted by the Trust Indenture Act; or
(10) to amend or supplement the restrictions on and procedures for
resale, attempted resale and other transfers of any series of Securities
(whether or not Outstanding) to reflect any change in applicable law or
regulation (or interpretation thereof) or in practices relating to the
resale or transfer of Restricted Securities generally.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities of all series at the time Outstanding
affected by such supplemental indenture (voting as one class), by the Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of each series affected thereby,
(1) extend the Stated Maturity of the principal of, or any installment or
principal of or interest on, any such Security, or reduce the principal amount
thereof or the rate of interest thereon or premium (if any), payable upon the
redemption thereof, or reduce the obligation of the Company to pay principal
amounts, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change any Place of Payment where,
or the coin or currency in which, any such Security of such series or any
principal, premium (if any), or interest thereon is payable or impair the right
to institute suit for the enforcement of any such payment on or after the due
date thereof (or, in the case of redemption, on or after the Redemption Date),
or
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(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
modifications or amendments to this Indenture or to the terms and
conditions of that series of Securities, or to approve any supplemental
indenture relating to such series, or the consent of whose Holders is
required for any waiver with respect to such series (of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to the
"Trustee" and concomitant changes in this Section and Section 1007, or the
deletion of this provision, in accordance with the requirements of Sections
611(b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular previously created series of Securities, or
which modifies the rights of the Holders of Securities of such previously
created series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
such previously created series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES; OPINIONS.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
(except to the extent required in the case of a supplemental indenture entered
into under Section 901(9)) be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Except as provided in this Article, upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act if at that date the
Indenture shall then be qualified under the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Company, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, premium (if
any) and interest on the Securities of that series in accordance with the terms
of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of any Securities, it will, on or before each due date of the
principal of, premium (if any), or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium (if any), or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or before each due date of the principal of, premium (if
any), or interest on any Securities of that series, deposit with a Paying Agent
a sum sufficient to pay such amount, such sum to be held as provided in the
following paragraph, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
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The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (i) hold all sums held by it for the
payment of the principal of, premium (if any), or interest on any Securities of
that series in trust for the benefit of the Holders of such Securities of that
series until such sums shall be paid to such Holders or otherwise disposed of as
herein provided; (ii) give the Trustee notice of any default by the Company (or
any other obligor upon any Securities of that series) in the making of any
payment of principal, premium (if any), or interest; and (iii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or direct the
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and
upon such payment by any Paying Agent to the Trustee, the Company and such
Paying Agent shall be released from all further liability with respect to such
sums.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium (if any), or
interest on any Security of any series and remaining unclaimed for one year
after such principal, premium (if any), or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such deposited money, and all liability of the Company as trustee
thereof, shall thereupon cease.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, a statement signed
by the principal executive officer, the principal financial officer or the
principal accounting officer of the Company stating that in the course of the
performance by the signer of such officer's duties as an officer of the Company
such officer would normally obtain knowledge of any default by the Company in
the performance or fulfillment of any covenant, agreement or condition contained
in this Indenture, and stating whether such officer has obtained knowledge of
any such default, and, if so, specifying each such default of which the signer
has knowledge and the nature thereof.
SECTION 1005. DELIVERY OF CERTAIN INFORMATION.
At any time the Company is not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, for the benefit of Holders from
time to time of any of the Securities which are not registered under the
Securities Act ("Exempt Securities"), upon request of a Holder of Exempt
Securities, the Company will furnish or cause to be furnished at its expense
Rule 144A
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Information to that Holder or to a prospective purchaser of the Exempt Security
designated by that Holder, as the case may be, unless at that time (1) the
Commission shall have waived such requirement in writing or otherwise taken the
position that subsection 144A(d)(4)(i) does not apply to the Company or (2) the
provision of such information shall no longer be required by law to effect
resales under Rule 144A under the Securities Act or otherwise to effect resales
without registration under the Securities Act. As used in this Section 1008
only, "Holder" shall include a holder of interest in a Global Security which is
an Exempt Security and prospective purchaser of an Exempt Security shall include
a prospective purchaser of an interest represented by a Global Security which is
an Exempt Security.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed, the Redemption
Price, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest, if any (or, in the case of Original Issue Discount Securities,
original issue discount) accrued to the date fixed for redemption will be paid
as specified in such notice, and that on and after that date interest, if any,
thereon or on the portions thereof to be redeemed (or, in the case of Original
Issue Discount Securities, original issue discount) will cease to accrue. In the
case of any redemption of such Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If fewer than all the Securities of any series are to be redeemed (unless
all of the Securities of such series issued on the same day with the same terms
are to be redeemed), the particular Securities of such series to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not
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previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than the Trustee) in writing of the Securities selected for redemption
and, in the case of any securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any such Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at such Holder's address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) the Redemption Price, if fewer than all the Outstanding
Securities of any series to be redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
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On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay on the Redemption Date the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any such Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium (if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in such Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF THIS ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, if such sinking fund is established
pursuant to Section 301, except as otherwise specified as contemplated by
Section 301 for Securities of such series.
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The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of any Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment made with respect to the Securities
of any series shall be applied to the redemption of the Securities of such
series as provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (i) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (ii) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund, and the amount of such sinking
fund payment shall be reduced accordingly. Such Securities shall first be
applied to the sinking fund payment next due, and any excess shall be applied to
the following sinking fund payments in the order they are due.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered and credited. Not less than 30 days before each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT DEFEASANCE.
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If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1302 or (b) covenant
defeasance of the Securities of a series under Section 1303, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Thirteen, shall be applicable to the Securities of
such series, and the Company may at its option by or pursuant to Board
Resolution, at any time, with respect to such Securities of any series, elect to
have either Section 1302 or Section 1303 applied to the Outstanding Securities
of such series upon compliance with the conditions set forth in this Article
Thirteen.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on the date the conditions set forth in
Section 1304 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expend of the Company, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated of
discharged hereunder: (A) the rights of Holders of such Outstanding Securities
to receive, solely from the trust fund described in Section 1304 and as more
fully set forth in such Section, payments in respect of the principal of,
premium (if any), and interest on such Securities when such payments are due,
(B) the Company's obligations with respect to such Securities under Sections
304, 305, 306, 1002, 1003 and Article Fourteen and with respect to the Trustee
under Section 607, (C) the rights, powers, trusts, duties, and immunities of the
Trustee hereunder including pursuant to Section 607 hereof and (D) this Article
Thirteen. Subject to compliance with this Article Thirteen, the Company may
exercise its option under this Section 1302 notwithstanding the prior exercise
of its option under Section 1303 with respect to such Securities.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, if specified pursuant to
Section 301, the Company shall be released from its obligations under any
covenant with respect to the Outstanding Securities of such series on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance") and such Securities shall thereafter be deemed to be not
"Outstanding" for the purpose of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with 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 the Outstanding Securities of such series, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference in any such Section to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Sections 501(4) or 501(7)
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or otherwise, as the case may be, but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.
SECTION 1304. CONDITIONS OF DEFEASANCE.
The following shall be the conditions to application of either Section 1302
or Section 1303 to the Outstanding Securities of or within a series:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest, if any, in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment of principal of, premium (if any), and interest, if
any, on such Securities, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of, premium (if any), and each installment of principal of,
premium (if any) and interest, if any, on the Outstanding Securities of
such series on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities of such series
on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities.
(2) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default under Subsections 501(5) and (6)
with respect to any other series of Securities, at any time during the
period ending on the 123rd day after the date of such deposit or, if
longer, ending on the day following the expiration of the longest
preference period applicable to the Company in respect of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(4) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
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(5) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance has not occurred.
(6) The Company delivers to the Trustee an Officer's Certificate
stating that all conditions precedent to the defeasance and discharge of
the Securities of such series as contemplated by this Article Thirteen have
been satisfied.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively, for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal, premium (if any), and interest (if any), but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accounts expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1306. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article Thirteen by reason of any
legal proceeding or by reason of any order or judgment of any court or
government authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and Securities of
the defeased series shall be revived and reinstated as though no deposit had
occurred
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pursuant to this Article Thirteen until such time as the Trustee or any Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article Thirteen.
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
SECTION 1401. APPLICABILITY OF ARTICLE.
Securities of any series which are repurchasable before their Stated
Maturity at the option of the Holders shall be repurchasable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1402. NOTICE OF REPURCHASE DATE.
Notice of any Repurchase Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of any series,
be given by the Company not less than 45 nor more than 60 days prior to such
Repurchase Date to each Holder of Securities of such series in accordance with
Section 106.
The notice as to Repurchase Date shall state:
(1) the Repurchase Date;
(2) the Repurchase Price;
(3) the place or places where such Securities are to be surrendered
for payment of the Repurchase Price and the date by which Securities must
be so surrendered in order to be repurchased;
(4) a description of the procedure which a Holder must follow to
exercise a repurchase right; and
(5) that exercise of the option to elect repurchase is irrevocable.
No failure of the Company to give the foregoing notice shall limit any Holder's
right to exercise a repurchase right.
SECTION 1403. DEPOSIT OF REPURCHASE PRICE.
On or prior to the Repurchase Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Repurchase Price of and
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(unless the Repurchase Date shall be an Interest Payment Date) accrued interest,
if any, on all of the Securities of such series which are to be repurchased on
that date.
SECTION 1404. SECURITIES PAYABLE ON REPURCHASE DATE.
The form of option to elect repurchase having been delivered as specified
in the form of Security for such series as provided in Section 201, the
Securities of such series so to be repurchased shall, on the Repurchase Date,
become due and payable at the Repurchase Price applicable thereto and from and
after such date (unless the Company shall default in the payment of the
Repurchase Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for repurchase in accordance with
said notice, such Security shall be paid by the Company at the Repurchase Price
together with accrued interest to the Repurchase Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to such Repurchase
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any such Security shall not be paid upon surrender thereof for
repurchase, the principal (and premium, if any) shall, until paid, bear interest
from the Repurchase Date at the rate prescribed therefor in such Security.
SECTION 1405. SECURITIES REPURCHASED IN PART.
Any Security which by its terms may be repurchased in part at the option of
the Holder and which is to be repurchased only in part shall be surrendered at
any office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unrepurchased portion of the principal of the Security so
surrendered.
ARTICLE FIFTEEN
CORPORATE OBLIGATION ONLY
SECTION 1501. INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, any supplemental indenture, or in any Security, because of
any indebtedness evidenced thereby, shall be had against any incorporator, or
against any past, present or future shareholder, employee, officer or director,
as such, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, under any rule of law, statute
or
69
<PAGE>
constitutional provision or by the enforcement of any assessment or penalty or
by any legal or equitable proceeding or otherwise, all such liability, whether
at common law, in equity, by any constitution, statute or otherwise, of
incorporators, shareholders, employees, officers or directors being expressly
waived and released by the acceptance of the Securities by the Holders thereof
and as part of the consideration of the issuance of the Securities.
First Trust of Illinois, National Association hereby accepts the trusts in
this Indenture upon the terms and conditions hereinabove set forth.
[signatures appear on next page]
70
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
ABC Rail Products Corporation
By:
-----------------------------
Title:
Attest:
-------------------------
Title:
First Trust of Illinois,
National Association, as Trustee
By:
-----------------------------
Title:
Attest:
-------------------------
Title:
71
<PAGE>
Exhibit 5.1
November 15, 1996
ABC Rail Products Corporation
200 South Michigan Avenue
Suite 1300
Chicago, Illinois 60604
Re: Up to $100,000,000 of Subordinated Debt Securities and Common Stock of
ABC Rail Products Corporation
-----------------------------
Ladies and Gentlemen:
We are acting as counsel to ABC Rail Products Corporation, a Delaware
corporation (the "Company"), in connection with the authorization of the
possible issuance and sale from time to time by the Company of certain
subordinated debt securities of the Company ("Debt Securities") and shares of
Common Stock, par value $.01 per share, of the Company ("Common Stock"), in each
case as contemplated by the Company's Registration Statement on Form S-3, as may
be amended from time to time (the "Registration Statement"). Except as otherwise
defined herein, capitalized terms that are defined in the Registration Statement
are used herein as so defined.
We have examined such documents, records, and matters of law as we
have deemed necessary for purposes of this opinion. Based on such examination
and on the assumptions set forth below, we are of the opinion that:
1. The shares of Common Stock being registered pursuant to the
Registration Statement, when issued and delivered as contemplated by
the Registration Statement and upon receipt by the Company of such
lawful consideration therefor having a value not less than the par
value thereof as the Company's Board of Directors (or a duly
authorized committee thereof) may determine, will be validly issued,
fully paid, and nonassessable.
2. The Debt Securities being registered pursuant to the
Registration Statement, when issued and delivered as contemplated by
the Registration Statement and upon receipt by the Company of such
lawful consideration therefor as the Company's Board of Directors (or
a duly authorized committee thereof) may determine, will constitute
valid and binding obligations of the Company.
<PAGE>
ABC Rail Products Corporation
November 15, 1996
Page 2
In rendering the foregoing opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto, will have become effective,
(ii) a Prospectus Supplement describing each class and/or series of Debt
Securities or Common Stock offered pursuant to the Registration Statement (the
"Offered Securities") will have been filed with the Securities and Exchange
Commission (the "Commission"), (iii) the definitive terms of each class and/or
series of Offered Securities will have been established in accordance with the
authorizing resolutions of the Company's Board of Directors, the Company's
Certificate of Incorporation, and applicable law, (iv) any Offered Securities
consisting of Common Stock will have been duly authorized and reserved for
issuance from the applicable class of capital stock of the Company, in each case
within the limits of such class of capital stock then remaining authorized but
unissued, (v) resolutions authorizing the Company to issue, offer, and sell the
Offered Securities will have been adopted by the Company's Board of Directors
and will be in full force and effect at all times at which the Offered
Securities are offered or sold by the Company and (vi) all Offered Securities
will be issued in compliance with applicable federal and state securities laws.
With respect to any Offered Securities consisting of any series of
Debt Securities, we have further assumed that (i) an Indenture with respect to
such Debt Securities will have been duly executed and delivered by the Company
and the applicable Trustee in a form approved by us, and such Indenture will
have been qualified under the Trust Indenture Act of 1939, as amended, (ii) all
terms of such Debt Securities not provided for in the applicable Indenture will
have been established in accordance with the provision of the applicable
Indenture and reflected in appropriate documentation approved by us and, if
applicable, duly executed and delivered by the Company and the applicable
Trustee, (iii) such Debt Securities will be duly executed, authenticated,
issued, and delivered in accordance with the provisions of the applicable
Indenture and (iv) the interest rate on any such Debt Securities will not be
higher than the maximum lawful rate permitted from time to time under applicable
by law.
In rendering the foregoing opinion, we have relied as to certain
factual matters upon certificates of officers of the Company, and we have not
independently checked or verified the accuracy of the statements contained
therein. In rendering the foregoing opinion, our examination of matters of law
has been limited to the laws of the State of Illinois, the General Corporation
Law of the State of Delaware, and the federal laws of the United States of
America, as in effect on the date hereof.
<PAGE>
ABC Rail Products Corporation
November 15, 1996
Page 2
We understand that prior to offering for sale any Offered Securities
you will advise us in writing of the terms thereof, will afford us an
opportunity to review the operative documents (including the applicable
Prospectus Supplement) pursuant to which such Offered Securities are to be
offered and issued, and will file as an exhibit to the Registration Statement
such supplement or amendment to this opinion (if any) as we may reasonably
consider necessary or appropriate by reason of the terms of such Offered
Securities or any changes in the Company's capital structure or other pertinent
circumstances.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to us in the Prospectus under the
caption "Legal Matters."
Very truly yours,
/s/ JONES, DAY, REAVIS & POGUE
JONES, DAY, REAVIS & POGUE
<PAGE>
Exhibit 12.1
ABC RAIL PRODUCTS CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(in thousands)
<TABLE>
<CAPTION>
Year Ended July 31,
===============================================
1996 1995 1994 1993 1992
-----------------------------------------------
<S> <C> <C> <C> <C> <C>
Income (loss before income
taxes, cumulative effect of
accounting change and
extraordinary items $10,374 $19,304 $11,486 $ 6,026 $(1,617)
ADD FIXED CHARGES:
Interest expense 5,239 3,387 3,147 4,156 4,672
Amortization of deferred
financing costs 172 275 380 584 555
Interest portion of rent
expense 633 533 233 233 167
------- ------- ------- ------- -------
TOTAL FIXED CHARGES 6,044 4,195 3,760 4,973 5,394
------- ------- ------- ------- -------
ADJUSTED EARNINGS $16,418 $23,499 $15,246 $10,999 $ 3,777
======= ======= ======= ======= =======
RATIO OF EARNINGS TO FIXED
CHARGES 2.72x 5.60x 4.05x 2.21x (a)
======= ======= ======= ======= =======
</TABLE>
(a) Earnings were insufficient to cover fixed charges by $1.6 million.
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated September 11, 1996
incorporated by reference in ABC Rail Products Corporation's Form 10-K for the
year ended July 31, 1996 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Chicago, Illinois
November 14, 1996
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or officer of ABC Rail Products
Corporation, does hereby constitute and appoint Donald W. Grinter and D.
Chisholm MacDonald, and each of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-3 and any related Registration Statement that is filed pursuant to
Rule 462 under the Securities Act of 1933, and to file the same, with exhibits
and schedules thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact, full
power and authority to do and perform each and every act and thing necessary or
desirable to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, thereby ratifying and confirming all
that said attorney-in-fact, or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 15th day
of November, 1996.
/s/ Donald W. Grinter
-------------------------------------
Donald W. Grinter
<PAGE>
Exhibit 24.2
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or officer of ABC Rail Products
Corporation, does hereby constitute and appoint Donald W. Grinter and D.
Chisholm MacDonald, and each of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-3 and any related Registration Statement that is filed pursuant to
Rule 462 under the Securities Act of 1933, and to file the same, with exhibits
and schedules thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact, full
power and authority to do and perform each and every act and thing necessary or
desirable to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, thereby ratifying and confirming all
that said attorney-in-fact, or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 6th day
of November, 1996.
/s/ Jean-Pierre M. Ergas
-------------------------------------
Jean-Pierre M. Ergas
<PAGE>
Exhibit 24.3
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or officer of ABC Rail Products
Corporation, does hereby constitute and appoint Donald W. Grinter and D.
Chisholm MacDonald, and each of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-3 and any related Registration Statement that is filed pursuant to
Rule 462 under the Securities Act of 1933, and to file the same, with exhibits
and schedules thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact, full
power and authority to do and perform each and every act and thing necessary or
desirable to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, thereby ratifying and confirming all
that said attorney-in-fact, or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 15th day
of November, 1996.
/s/ Donald R. Gant
-------------------------------------
Donald R. Gant
<PAGE>
Exhibit 24.4
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or officer of ABC Rail Products
Corporation, does hereby constitute and appoint Donald W. Grinter and D.
Chisholm MacDonald, and each of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-3 and any related Registration Statement that is filed pursuant to
Rule 462 under the Securities Act of 1933, and to file the same, with exhibits
and schedules thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact, full
power and authority to do and perform each and every act and thing necessary or
desirable to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, thereby ratifying and confirming all
that said attorney-in-fact, or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 15th day
of November, 1996.
/s/ Clarence E. Johnson
-------------------------------------
Clarence E. Johnson
<PAGE>
Exhibit 24.5
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or officer of ABC Rail Products
Corporation, does hereby constitute and appoint Donald W. Grinter and D.
Chisholm MacDonald, and each of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-3 and any related Registration Statement that is filed pursuant to
Rule 462 under the Securities Act of 1933, and to file the same, with exhibits
and schedules thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact, full
power and authority to do and perform each and every act and thing necessary or
desirable to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, thereby ratifying and confirming all
that said attorney-in-fact, or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 15th day
of November, 1996.
/s/ D. Chisholm MacDonald
-------------------------------------
D. Chisholm MacDonald
<PAGE>
Exhibit 24.6
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or officer of ABC Rail Products
Corporation, does hereby constitute and appoint Donald W. Grinter and D.
Chisholm MacDonald, and each of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-3 and any related Registration Statement that is filed pursuant to
Rule 462 under the Securities Act of 1933, and to file the same, with exhibits
and schedules thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact, full
power and authority to do and perform each and every act and thing necessary or
desirable to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, thereby ratifying and confirming all
that said attorney-in-fact, or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 4th day
of November, 1996.
/s/ James E. Martin
-------------------------------------
James E. Martin
<PAGE>
Exhibit 24.7
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or officer of ABC Rail Products
Corporation, does hereby constitute and appoint Donald W. Grinter and D.
Chisholm MacDonald, and each of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-3 and any related Registration Statement that is filed pursuant to
Rule 462 under the Securities Act of 1933, and to file the same, with exhibits
and schedules thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact, full
power and authority to do and perform each and every act and thing necessary or
desirable to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, thereby ratifying and confirming all
that said attorney-in-fact, or his substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 15th day
of November, 1996.
/s/ George W. Peck IV
-------------------------------------
George W. Peck IV
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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)
----------------
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
36-4046888
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
400 NORTH MICHIGAN AVENUE, 60611
CHICAGO, ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
----------------
JOHN W. PORTER
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION
400 N. MICHIGAN AVENUE, FLOOR 2S
CHICAGO, ILLINOIS 60611
TELEPHONE (312) 836-6736
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------
ABC RAIL PRODUCTS CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-3498749
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
200 South Michigan Avenue 60604
Suite 1300 (ZIP CODE)
Chicago, Illinois
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
SUBORDINATED DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
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.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES OF
THE TRUSTEE:
AS OF NOVEMBER 8, 1996
<TABLE>
<CAPTION>
COL. B
COL. A AMOUNT
TITLE OF CLASS OUTSTANDING
-------------- -----------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(b)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES
WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE TRUSTEE
IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE OF THE
OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON HAVING
ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
1
<PAGE>
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE TRUSTEE
OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND EXECUTIVE
OFFICER OF THE OBLIGOR.
AS OF NOVEMBER 8, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE
OF VOTING
SECURITIES
REPRESENTED
BY AMOUNT
NAME OF TITLE OF AMOUNT OWNED GIVEN
OWNER CLASS BENEFICIALLY IN COL. C
------- -------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE TRUSTEE
OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH DIRECTOR,
PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF NOVEMBER 8, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE
OF VOTING
SECURITIES
REPRESENTED
BY AMOUNT
NAME OF TITLE OF AMOUNT OWNED GIVEN
OWNER CLASS BENEFICIALLY IN COL. C
------- -------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY THE
TRUSTEE:
AS OF NOVEMBER 8, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER
THE
SECURITIES
ARE VOTING
OR AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
TITLE OF NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
-------- ---------- ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
2
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF NOVEMBER 8, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
AS OF NOVEMBER 8, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF NOVEMBER 8, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF NOVEMBER 8, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ---------------------- ------------------ --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture. The trustee is not a trustee under another
indenture under which securities are outstanding.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEES, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the Articles of Association of First Trust of Illinois,
National Association as now in effect, incorporated herein by reference to
Exhibit 1 to T-1; Registration No. 33-64175.
2. A copy of the certificate of authority to commence business,
incorporated herein by reference to Exhibit 2 to T-1; Registration No. 33-
64175.
3. A copy of the certificate of authority to exercise corporate trust
powers, incorporated herein by reference to Exhibit 3 to T-1; Registration
No. 33-64175.
4. A copy of the existing By-Laws of First Trust of Illinois, National
Association as now in effect, incorporated herein by reference to Exhibit 4
to T-1; Registration No. 33-64175.
4
<PAGE>
5. Not applicable by virtue of response to Item 13.
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6 to
T-1; Registration No. 33-64175.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE
TRUSTEE, FIRST TRUST OF ILLINOIS, 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
CHICAGO, AND STATE OF ILLINOIS, AS OF THE 8TH DAY OF NOVEMBER, 1996.
First Trust of Illinois, National
Association
/s/ John W. Porter
By __________________________________
John W. Porter
Vice President and Secretary
5
<PAGE>
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
C200 (less than) -
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS
RCON
1. Cash and balances due from depository institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and currency and coin (1)____________________________0081. . 74,939 1.a
b. Interest-bearing balances (2)_____________________________________________________0071. . 0 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-8, column A)________________________1754. . 0 2.a
b. Available-for-sale securities (from Schedule RC-8, column D)______________________1773. . 3,231 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold________________________________________________________________0276. . 0 3.a
b. Securities purchased under agreements to resell___________________________________0277. . 0 3.b
4. Loans and Lease financing receivables: RCON
a. Loans and leases, net of unearned income ----
(from Schedule RC-C)___________________________2122 . . 0 . . . . . . 4.a
b. LESS: Allowance for loan and lease losses______3123 . . 0 . . . . . . 4.b
c. LESS: Allocated transfer risk reserve__________3128 . . 0 . . . . . . 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c)_______________________________2125. . 0 4.d
5. Trading assets_______________________________________________________________________3545. . 0 5.
6. Premises and fixed assets (including capitalized leases)_____________________________2145. . 122 6.
7. Other real estate owned (from Schedule RC-M)_________________________________________2150. . 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M)_______________________________________________________________________2130. . 0 8.
9. Customers' liability to this bank on acceptances outstanding_________________________2155. . 0 9.
10. Intangible assets (from Schedule RC-M)_______________________________________________2143. . 26,872 10.
11. Other assets (from Schedule RC-F)____________________________________________________2160. . 3,295 11.
12. Total assets (sum of items 1 through 11)_____________________________________________2170. . 108,459 12.
</TABLE>
- ---------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
First Trust of Illinois, N.A. Call Date: 06/30/96 ST-BK: 17-1638 FFIEC 033
400 North Michigan Avenue Page RC-2
Chicago, IL 60611 Vendor ID: D CERT: 34094
10
Transit Number: 09600069
Schedule RC - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES RCON
13. Deposits ----
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E) .................................... 2200 0 13.a
(1) Noninterest-bearing(1)............................. 6631 0 13.a.1
(2) Interest-bearing .................................. 6636 0 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs ...............................................
(1) Noninterest-bearing ...............................
(2) Interest-bearing ..................................
14. Federal funds purchased and securities sold under
agreements to repurchase:
a. Federal funds purchased ................................ 0278 0 14.a
b. Securities sold under agreements to repurchase ......... 0279 0 14.b
15. a. Demand notes issued to the U.S. Treasury ............... 2840 0 15.a
b. Trading liabilities .................................... 3548 0 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less .......... 2332 0 16.a
b. With a remaining maturity of more than one year ........ 2333 0 16.b
17. Mortgage indebtedness and obligations under capitalized
leases ..................................................... 2910 0 17.
18. Bank's liability on acceptances executed and outstanding ... 2920 0 18.
19. Subordinated notes and debentures .......................... 3200 0 19.
20. Other liabilities (from Schedule RC-G) ..................... 2930 0 20.
21. Total liabilities (sum of items 13 through 20) ............. 2948 2,082 21.
22. Limited-life preferred stock and related surplus ........... 3282 2,082 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus .............. 3838 0 23.
24. Common stock ............................................... 3230 1,000 24.
25. Surplus (exclude all surplus related to preferred stock) ... 3839 106,712 25.
26. a. Undivided profits and capital reserves ................. 3632 (1,335) 26.a
b. Net unrealized holding gains (losses) on
available-for-sale securities .......................... 8434 0 26.b
27. Cumulative foreign currency translation adjustments ........
28. Total equity capital (sum of items 23 through 27) .......... 3210 106,377 28.
29. Total liabilities, limited-life preferred stock, and
equity capital (sum of items 21, 22, and 28) ............... 3300 108,459 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the most comprehensive
level of auditing work performed for the bank by
independent external auditors as of any date during 1995 ... 6724 N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Director's examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Director's examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
