<PAGE>
As filed with the Securities and Exchange Commission on October 22, 1999.
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
Registration Statement
Under
The Securities Act of 1933
----------------
ABC-NACO INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3498749
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
2001 Butterfield Road, Mark F. Baggio, Vice President,
Suite 502 General Counsel and Secretary
Downers Grove, IL 60515 2001 Butterfield Road, Suite 502
(630) 852-1300 Downers Grove, IL 60515
(Address, including zip code, and (630) 852-1300
telephone number, including area code, (Name, address, including zip
of registrant's principal executive offices) code, and
telephone number, including area
code,
of agent for service)
----------------
Please send copies of all communications to:
Robert J. Regan
Schiff Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5500
----------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
----------------
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. [_]
<PAGE>
CALCULATION OF REGISTRATION FEE
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- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed
Maximum Proposed
Title of Each Class of Amount Offering Maximum Amount of
Securities to be to be Price Per Unit Aggregate Registration
Registered Registered (1) Offering Price Fee
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<S> <C> <C> <C> <C>
Debt securities............... -- (1) -- -- (1) --
- ------------------------------------------------------------------------------------------------
Preferred stock............... -- (1) -- -- (1) --
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Common stock, par value $0.01
per share, and related
preferred stock purchase
rights (2)................... -- (1) -- -- (1) --
- ------------------------------------------------------------------------------------------------
Total (3)..................... $300,000,000 $75,824
$300,000,000 (4)(5) -- (5)
</TABLE>
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(1) Not applicable pursuant to Form S-3, General Instruction II.D.
(2) The value attributable to the preferred stock purchase rights is reflected
in the value attributable to the common stock.
(3) Pursuant to Rule 429, securities having an aggregate initial offering price
of $25,000,000 are being carried forward from the registrant's registration
statement on Form S-3 (Reg. No. 333-16241). $7,576 of the filing fee
previously paid in connection with such registration statement is
associated with the securities being registered hereby.
(4) Or, (i) if any debt securities are issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial
offering price equal to the amount to be registered or (ii) if any debt
securities are issued with a principal amount denominated in a foreign
currency or composite currency, such principal amount as shall result in an
aggregate initial offering price equivalent thereto in United States
dollars at the time of initial offering.
(5) These figures are estimates made solely for the purpose of calculating the
registration fee pursuant to Rule 457(o), and, with respect to the debt
securities, are exclusive of accrued interest, if any.
----------------
PURSUANT TO RULE 429 OF THE RULES AND REGULATIONS OF THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS INCLUDED
IN THIS REGISTRATION STATEMENT ALSO RELATES TO $25,000,000 OF SECURITIES
PREVIOUSLY REGISTERED UNDER THE REGISTRANT'S REGISTRATION STATEMENT ON FORM S-3
(REG. NO. 333-16241). THIS REGISTRATION STATEMENT ALSO CONSTITUTES POST-
EFFECTIVE AMENDMENT NO. 1 WITH RESPECT TO THE REGISTRANT'S REGISTRATION
STATEMENT ON FORM S-3 (REG. NO. 333-16241).
----------------
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission relating to these securities is effective. +
+This prospectus is not an offer to sell these securities and it is not +
+soliciting an offer to buy these securities in any state where the offer or +
+sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to completion, dated October 22, 1999
PROSPECTUS
$300,000,000
[ABC-NACO LOGO]
By this prospectus
ABC-NACO INC.
may offer
DEBT SECURITIES
PREFERRED STOCK
and
COMMON STOCK
------------
We may from time to time sell up to $300,000,000 aggregate principal amount
of our debt securities, preferred stock and common stock. The debt securities
may consist of notes, debentures or other types of debt. We will provide you
with the specific terms of the debt securities, preferred stock and common
stock in supplements to this prospectus. You should read this prospectus and
any supplement carefully before you invest. This prospectus may not be used to
offer and sell securities unless accompanied by a prospectus supplement.
------------
These securities have not been approved by the Securities and Exchange
Commission or any state securities commission, nor have these organizations
determined that this prospectus is accurate or complete. Any representation to
the contrary is a criminal offense.
------------
The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ABOUT THIS PROSPECTUS...................................................... 3
ABC-NACO................................................................... 3
USE OF PROCEEDS............................................................ 3
RATIO OF EARNINGS TO FIXED CHARGES......................................... 3
WHERE YOU CAN FIND MORE INFORMATION........................................ 4
DESCRIPTION OF THE DEBT SECURITIES......................................... 5
General.................................................................. 5
Registration, Transfer and Exchange...................................... 6
Global Securities........................................................ 7
Consolidation, Merger and Sale of Assets................................. 8
Modification and Waiver.................................................. 8
Defeasance and Covenant Defeasance....................................... 9
Events of Default........................................................ 9
Information Concerning the Trustee....................................... 10
Governing Law............................................................ 10
DESCRIPTION OF CAPITAL STOCK............................................... 10
General.................................................................. 10
Common Stock............................................................. 10
Preferred Stock Purchase Rights.......................................... 11
Preferred Stock.......................................................... 12
Provisions With Possible Anti-Takeover Effects........................... 12
PLAN OF DISTRIBUTION....................................................... 13
LEGAL OPINIONS............................................................. 14
EXPERTS.................................................................... 14
</TABLE>
2
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that ABC-NACO Inc.
("ABC-NACO," "we," "us" and "our") filed with the SEC utilizing a "shelf"
registration process. Under this shelf registration, we may offer from time to
time up to $300,000,000 aggregate principal amount of debt securities,
preferred stock and common stock, either separately or in units. This
prospectus provides you with a general description of the securities we may
offer. Each time we offer securities, we will provide you with a prospectus
supplement that will describe the specific amounts, prices and terms of the
securities being offered. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information."
ABC-NACO
We are one of the world's leading suppliers of technologically advanced
products and services to the freight railroad and flow control industries. We
operate in three business segments: Rail Products, Rail Services and Systems,
and Flow and Speciality Products, and have four technology centers around the
world supporting our three business segments. We hold pre-eminent market
positions in the design, engineering and manufacture of high performance
freight railcar, locomotive and passenger rail suspension and coupler systems,
wheels and mounted wheel sets, and speciality track products. We also supply
freight, railroad and transit signaling systems and services, as well as highly
engineered valve bodies and components for industrial flow control systems
worldwide.
We were incorporated in Delaware in 1987. On February 19, 1999, we merged
with NACO, Inc. ("NACO"), a privately held Delaware corporation that designed,
manufactured and supplied cast steel and related products for the railroad
supply and flow control supply markets, to create ABC-NACO. Our principal
executive offices are located at 2001 Butterfield Road, Suite 502, Downers
Grove, Illinois 60515, and our telephone number is (630) 852-1300. Our common
stock is listed on the Nasdaq Stock Market's National Market System under the
symbol "ABCR."
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement, the net
proceeds we receive from the sale of the securities offered by this prospectus
will be used for general corporate purposes. General corporate purposes may
include the repayment of debt, working capital expenditures or investments in
businesses and assets. When we offer a particular series of securities offered
by this prospectus, the prospectus supplement relating to that offering will
set forth the intended use of the net proceeds received from that offering. We
may invest temporarily the net proceeds or apply them to repay short-term debt
until they are used for their stated purpose.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
Fiscal Year Ended July
31,
------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges..................... 0.71 1.94 1.61 2.35 5.15
</TABLE>
The ratio of earnings to fixed charges has been computed by dividing
"earnings" by "fixed charges." For purposes of calculating the ratios,
"earnings" is income (loss) before income taxes, cumulative effect of
accounting change, extraordinary items and equity income (loss) of
unconsolidated joint ventures, plus fixed
3
<PAGE>
charges, plus amortization of capitalized interest, plus distributed income of
equity investees, less capitalized interest. "Fixed charges" include interest
expense, amortization of deferred financing costs, capitalized interest and the
interest portion of rent expense.
We recently changed our fiscal year-end to December 31 from July 31. As a
result, following a transition period from August 1, 1999 through December 31,
1999, our next fiscal year will be the twelve-month period ending December 31,
2000. Prior to our merger with NACO, NACO's fiscal year-end was the Sunday
closest to March 31. As permitted under Regulation S-X promulgated by the SEC,
our year-end and NACO's year end have not been conformed for periods prior to
our most recent fiscal year ended July 31, 1999. The results of NACO's
operations for the twelve months ended June 28, 1998, March 30, 1997, March 31,
1996, and April 2, 1995 are combined with our results of operations for the
twelve months ended July 31, 1998, 1997, 1996, and 1995, respectively.
ABC-NACO's earnings were insufficient to cover total fixed charges in the
fiscal year ended July 31, 1999. The coverage deficiency in that fiscal year
was $6,728,000.
The ratio for the fiscal year ended July 31, 1999 would be 1.66 after
excluding merger and other restructuring charges from the calculation of
earnings.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at (800) SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to the public at the SEC's web site at http://www.sec.gov.
Our common stock is quoted on the Nasdaq Stock Market's National Market
System under the symbol "ABCR," and our SEC filings can also be read at the
following Nasdaq address:
Nasdaq Operations
1735 K Street, N.W.
Washington, D.C. 20006
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
later information that we file with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below:
(1) Our Annual Report on Form 10-K for the fiscal year ended July 31, 1999;
(2) Our Current Report on Form 8-K relating to the change of our fiscal
year filed with the SEC on September 24, 1999;
(3) The description of the common stock contained in our registration
statement on Form 8-A filed with the SEC on November 19, 1993,
including any amendments or reports filed for the purpose of updating
that description; and
(4) The description of the associated preferred stock purchase rights
contained in our registration statement on Form 8-A filed with the SEC
on October 2, 1995, including any amendments or reports filed for the
purpose of updating that description.
In addition to the documents listed above, we also incorporate by reference
any future filings we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 (1) after the date of the filing
of this registration statement and before its effectiveness and (2) until we
have sold all of the securities to which this prospectus relates or the
offering is otherwise terminated. Our subsequent filings with the SEC will
automatically update and supersede information in this prospectus.
4
<PAGE>
You may request a copy of these filings at no cost, by writing to or
telephoning us at the following address and telephone number:
ABC-NACO Inc.
Shareholder Relations
2001 Butterfield Road, Suite 502
Downers Grove, Illinois 60515
Telephone: (630) 852-1300
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of the document.
DESCRIPTION OF THE DEBT SECURITIES
The debt securities will be issued under an indenture between us and Norwest
Bank Minnesota, N.A. as the trustee. The following is a summary of the material
provisions of the indenture and is qualified in its entirety by the provisions
of the indenture, including definitions of certain terms used in the indenture.
Wherever we refer to particular sections or defined terms of the indenture,
those sections or defined terms are incorporated by reference in this
prospectus or prospectus supplement. You should review the indenture that is
incorporated by reference as an exhibit to the registration statement for
additional information.
The following summarizes certain general terms and provisions of the debt
securities. Each time we offer debt securities, the prospectus supplement
relating to that offering will describe the terms of the debt securities we are
offering.
General
The indenture does not limit the total principal amount of debt securities
that we may issue. The indenture provides that we may issue debt securities in
one or more series from time to time up to the total principal amount that we
have authorized. The debt securities will be unsecured, unless otherwise
provided in a supplement to this prospectus. The indenture does not limit the
amount of other unsecured indebtedness or securities that we may issue.
The debt securities may be issued in one or more separate series of
securities. The prospectus supplement relating to the particular series of debt
securities being offered will specify the particular amounts, prices and terms
of those debt securities. These terms may include:
. the title of the debt securities;
. the price at which the securities will be issued;
. any limit on the aggregate principal amount of the debt securities;
. the date or dates on which the debt securities will mature or the method
of determining such date or dates;
. their interest rate or rates, or the method of determining those rates;
. their interest payment dates and the record dates for interest payments;
. the place or places where principal, interest and any premium payments
may be made;
. any mandatory or optional redemption provisions;
. any sinking fund provisions;
5
<PAGE>
. any premium payments, including any conditions;
. the manner of making principal, interest and any premium payments on the
debt securities;
. the denominations in which the debt securities shall be issued;
. the currency or currencies in which payments on the debt securities will
be payable, and whether you or we may elect to have principal, premium
and interest paid in a currency other than the currency in which the
debt securities are denominated;
. the method of determining the amount of any payments on the debt
securities which are linked to an index;
. the portion of the principal amount of any debt security payable upon
the acceleration of maturity, if other than the full principal amount;
. whether provisions relating to defeasance and covenant defeasance will
be applicable to the series of debt securities;
. any changes to the events of default, defaults or to our covenants made
in the indenture;
. whether the debt securities will be issued in fully registered form
without coupons or in bearer form, with or without coupons, or both, and
whether they will be issued in global form;
. particular terms of any security provided for the debt securities;
. particular terms of subordination; and
. any other terms of the debt securities.
We may issue debt securities as original issue discount securities to be
sold at a substantial discount below their stated principal amount. If we issue
original issue discount securities, then special federal income tax rules that
apply may be described in the prospectus supplement for those debt securities.
"Original issue discount securities" means any debt security which provides for
an amount less than its principal amount to be due and payable upon the
declaration of acceleration of the maturity of the debt security upon the
occurrence and continuation of an "Event of Default."
Except as may otherwise be described in an applicable prospectus supplement,
the indenture does not contain 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.
Registration, Transfer and Exchange
We presently plan to issue each series of debt securities only as registered
securities. However, we may issue a series of debt securities as bearer
securities, or a combination of both registered securities and bearer
securities. If we issue debt securities as bearer securities, they will have
interest coupons attached unless we elect to issue them as zero coupon
securities. If we issue bearer securities, we may describe material U.S.
federal income tax consequences and other material considerations, procedures
and limitations in the prospectus supplement for that offering.
Holders of registered debt securities may present the debt securities for
exchange for different authorized amounts of other debt securities of the same
series and of similar principal amount at the corporate trust office of the
trustee in Minneapolis, Minnesota or at the office of any other transfer agent
we may designate for the purpose and describe in the applicable prospectus
supplement. The registered securities must be duly endorsed or accompanied by a
written instrument of transfer. The agent will not impose a service charge on
you for the transfer or exchange. We may, however, require that you pay any
applicable tax or other governmental charge. We will describe any procedures
for the exchange of bearer securities for other debt securities of the same
series in the prospectus supplement for that offering. Generally, we will not
allow you to exchange registered securities for bearer securities. (Section
2.7)
6
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In general, unless otherwise specified in the applicable prospectus
supplement, we will issue registered securities without coupons and in
denominations of $1,000, or integral multiples. We may issue both registered
and bearer securities in global form. (Section 2.14)
Global Securities
The debt securities of a series may be issued in whole or in part in the
form of one or more global securities that we will identify in a prospectus
supplement. Unless and until it is exchanged in whole or in part for the
individual debt securities represented thereby, a global security may not be
registered for transfer or exchange except:
. as a whole by the depositary for the global security to a nominee of the
depositary, by a nominee of the depositary to the depositary or another
nominee of the depositary, or by the depositary or a nominee of the
depositary to a successor depositary or a nominee of the successor
depositary; and
. in any other circumstances described in the prospectus supplement
applicable thereto.
The specific terms of the depositary arrangement with respect to any portion
of a series of debt securities to be represented by a global security will be
described in the prospectus supplement applicable thereto. We expect that the
following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable prospectus supplement, debt
securities that are to be represented by a global security to be deposited with
or on behalf of a depositary will be represented by a global security or, in
some cases, global securities registered in the name of the depositary or its
nominee. Upon the issuance of the global security, and the deposit of the
global security with or on behalf of the depositary for the global security,
the depositary will credit on its book entry registration and transfer system
the respective principal amounts of the debt securities represented by the
global security to the accounts of institutions that have accounts with the
depositary or its nominee ("participants"). The accounts to be credited will be
designated by the underwriters or agents of the debt securities. If we directly
offer and sell debt securities the accounts to be credited will be designated
by us. Ownership of beneficial interests in the global security will be limited
to participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in the global security will
be shown on, and the transfer of that ownership interest will be effected only
through, records maintained by the depositary or its nominee for the global
security. Ownership of beneficial interests in the global security by persons
that hold through participants will be shown on, and the transfer of that
ownership interest within the participant will be effected only through,
records maintained by the participant. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of the securities
in certificated form. The foregoing limitations and the laws may impair the
ability to transfer beneficial interests in the global securities.
So long as the depositary for a global security, or its nominee, is the
registered owner of the global security, the depositary or the nominee, as the
case may be, will be considered the sole owner or "Holder" of the debt
securities represented by the global security for all purposes under the
indenture. Unless otherwise specified in the applicable prospectus supplement,
owners of beneficial interests in the global security will not be entitled to
have debt securities of the series represented by the global security
registered in their names, will not receive or be entitled to receive physical
delivery of debt securities of the series in certificated form and will not be
considered the Holders of the debt securities for any purposes under the
indenture. Accordingly, each person owning a beneficial interest in the global
security must rely on the procedures of the depositary and, if the person is
not a participant, on the procedures of the participant through which the
person owns its interest to exercise any rights of a Holder of debt securities
under the indenture. We understand that under existing industry practices, if
we request any action of Holders or an owner of a beneficial interest in the
global security desires to give any notice or take any action a Holder is
entitled to give or take under the indenture, then the depositary would
authorize the participants to give this notice or take this action, and
participants would authorize beneficial owners owning through these
participants to give this notice or take this action or would otherwise act
upon the instructions of beneficial owners owning through them.
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<PAGE>
Principal of and any premium and interest on a global security will be
payable in the manner described in the applicable prospectus supplement.
Consolidation, Merger and Sale of Assets
We may consolidate with, or sell, lease or convey all or most of our assets
to, or merge with or into, any other corporation, as long as:
. if we are not the continuing corporation, the successor corporation is
organized and existing under U.S. or state law;
. the successor corporation by supplemental indenture expressly assumes
the payments on the debt securities and duly and punctually performs and
observes all covenants and conditions of the indenture to be performed
by us; and
. we or the successor corporation are not in default in the performance of
any of those covenants or conditions immediately after the merger or
consolidation or the sale, lease or conveyance. (Section 5.1)
Modification and Waiver
The indenture allows us and the trustee, without the consent of any Holders
of debt securities, to enter into supplemental indentures for various purposes,
including:
. evidencing the succession of another entity to us and the assumption of
our covenants and obligations under the debt securities and the
indenture by this successor;
. adding to our covenants for the benefit of the Holders;
. adding additional events of default for the benefit of the Holders;
. establishing the form or terms of any series of debt securities issued
under the supplemental indentures or curing ambiguities or
inconsistencies in the indentures; and
. making other provisions that do not adversely affect the interests of
the Holders of any series of debt securities in any material respect.
(Section 9.1)
The indenture allows us and the trustee, with the consent of the Holders of
not less than a majority in principal amount of the outstanding debt securities
of all affected series acting as one class, to execute supplemental indentures
adding any provisions to or changing or eliminating any of the provisions of
the indenture or modifying the rights of the Holders of the debt securities of
the series. (Section 9.2) Without the consent of the Holders of all the
outstanding debt securities affected thereby, no supplemental indenture may:
. change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security;
. reduce the principal amount of, the rate of interest on, or any premium
payable upon the redemption of, any debt security;
. reduce the amount of the principal of any original issue discount
security that would be due and payable upon acceleration of the maturity
of the debt security;
. change the place or currency of payment of principal of, premium (if
any), or interest on any debt security;
. impair the right to institute suit for the enforcement of any payment on
or after the maturity date of the debt security or, in the case of
redemption, on or after the redemption date;
8
<PAGE>
. reduce the percentage in principal amount of the outstanding debt
securities of any series, the consent of whose holders is required for a
supplemental indenture, or the consent of whose holders is required for
any waiver of compliance with various provisions of the indenture or
various defaults thereunder and their consequences provided for in the
indentures; or
. modify any of the foregoing described provisions. (Section 9.3)
Defeasance and Covenant Defeasance
The indenture provides, unless otherwise indicated in the prospectus
supplement relating to that particular series of debt securities, that, at our
option, we:
. will be discharged from any and all obligations in respect of the debt
securities of any series, except for certain obligations to register the
transfer of or exchange of debt securities of that series, replace
stolen, lost or mutilated debt securities of that series, maintain
paying agencies and hold moneys for payment in trust; or
. need not comply with certain restrictive covenants of the indenture and
the occurrence of an event described in the fourth bullet point in the
section of the prospectus captioned "Events of Default" will no longer
be an event of default, in each case, if we deposit, in trust, with the
trustee money or direct obligations of the United States or guaranteed
by the United States, which through the payment of interest and
principal in accordance with their terms will provide money, in an
amount sufficient to pay all the principal of and premium, if any, and
interest on and any mandatory sinking fund in respect of the debt
securities of that series on the dates such payments are due, which may
include one or more redemption dates that we designate, in accordance
with the terms of the debt securities of that series.
We may establish this trust only if, among other things:
. no event of default or event which with the giving of notice or lapse of
time, or both, would become an event of default under the indenture
shall have occurred and is continuing on the date of the deposit or
insofar as an event of default resulting from certain events involving
our bankruptcy or insolvency at any time during the period ending on the
91st day after the date of the deposit or, if longer, ending on the day
following the expiration of the longest preference period applicable to
us in respect of the deposit;
. the defeasance will not result in a breach or violation of, or
constitute a default under, the indenture or any other agreement or
instrument to which we are a party or by which we are bound; and
. We have delivered to the trustee an opinion of counsel to the effect
that the holders will not recognize income, gain or loss for federal
income tax purposes as a result of the deposit or defeasance and will be
subject to federal income tax in the same manner as if the defeasance
had not occurred. (Section 8.4)
In the event we omit to comply with our remaining obligations under the
indenture after a defeasance of the indenture with respect to the debt
securities of any series as described under the second item listed above and
the debt securities of such series are declared due and payable because of the
occurrence of any event of default, the amount of money and direct obligations
of the United States or guaranteed by the United States on deposit with the
trustee may be insufficient to pay amounts due on the debt securities of that
series at the time of the acceleration resulting from the event of default. We
will, however, remain liable for those payments.
Events of Default
An "Event of Default" regarding any series of debt securities is any one of
the following events:
. default for 30 days in the payment of any interest installment when due
and payable;
. default in the payment of principal or premium (if any) when due at its
stated maturity, by declaration, when called for redemption or
otherwise;
9
<PAGE>
. default in the deposit of any sinking fund payment when due;
. default in the performance of any of our covenants or warranties in the
debt securities or in the indenture for 60 days after notice to us by
the trustee or by Holders of not less than a majority in principal
amount of the outstanding debt securities of that series;
. events of bankruptcy, insolvency or reorganization of ABC-NACO;
. any other Event of Default provided with respect to that series of debt
securities.
We are required to file every year with the trustee an officers' certificate
stating whether any default exists and specifying any default that exists.
(Section 6.1)
Information Concerning the Trustee
Norwest Bank Minnesota, N.A. is the trustee under the indenture. Other than
through the indenture, we do not maintain any relationship with the trustee.
The trustee may resign at any time or may be removed with respect to any series
of debt securities by the holders of at least a majority in aggregate principal
amount of the outstanding debt securities of the affected series. If the
trustee resigns, is removed or becomes incapable of acting as trustee or if a
vacancy occurs in the office of the trustee for any cause, a successor trustee
shall be appointed in accordance with the provisions of the indenture. (Section
7.8)
Governing Law
The indenture and the debt securities are, by their terms, to be governed by
the internal laws of the State of Illinois without regard to the conflict of
laws provisions thereof. (Section 10.10)
DESCRIPTION OF CAPITAL STOCK
General
As of September 24, 1999, our authorized capital stock consisted of
25,000,000 shares of common stock, of which 18,386,336 shares were outstanding,
and 1,000,000 shares of preferred stock, of which no shares were outstanding.
100,000 shares of the preferred stock have been designated Series A junior
participating preferred stock and are reserved for issuance under the rights
agreement described below. Our common stock is listed on the Nasdaq Stock
Market's National Market System and the ticker symbol for the common stock is
ABCR.
Common Stock
Voting
Holders of common stock vote as a single class on all matters submitted to a
vote of the stockholders, with each share of common stock entitled to one vote.
Dividends
Holders of the common stock are entitled to receive the dividends that may
be declared from time to time by our Board of Directors out of funds legally
available therefor. The rights of holders of common stock to receive dividends
are subject to the prior rights of holders of any issued and outstanding
preferred stock that may be issued in the future.
Other Provisions
Upon liquidation (whether voluntary or involuntary) or a reduction in our
capital which results in any distribution of assets to stockholders, the
holders of common stock are entitled to receive, pro rata according to the
number of shares held by each, all of our assets remaining for distribution
after payment to creditors and
10
<PAGE>
the holders of any issued and outstanding preferred stock of the full
preferential amounts to which they are entitled. The common stock has no
preemptive or other subscription rights and there are no other conversion
rights or redemption provisions with respect to the shares.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company.
Preferred Stock Purchase Rights
Each outstanding share of common stock includes one right to purchase one
one-hundredth of a share of our Series A junior participating preferred stock.
A rights agreement dated as of September 29, 1995, as amended, between us and
LaSalle National Trust, N.A., governs the terms and conditions of these rights.
This description of the rights is qualified by the rights agreement, filed as
part of our registration statement on Form 8/A filed with the SEC on October 2,
1995 and the amendments filed with our Form 10-Q for our fiscal quarter ended
October 31, 1996 and our Form 8/A filed with the SEC on September 24, 1998.
Currently, the rights are not exercisable, certificates representing rights
have not been issued and the rights automatically trade with the common stock.
However, ten days after an acquiring person or group (other than grandfathered
stockholders) acquires beneficial ownership of 15% or more of the outstanding
common stock, or 15 business days after an acquiring person or group makes an
offer to acquire 15% or more of the outstanding common stock, the rights become
exercisable, certificates representing the rights will be issued as soon as
practicable afterwards and the rights will begin to trade independently from
the common stock. The rights will not have any voting power. When the rights
become exercisable, a holder becomes entitled to buy one one-hundredth of a
newly-issued share of Series A junior participating preferred stock for each
right at an exercise price of $150, subject to anti-dilution adjustments. Each
one-hundredth of a share of Series A junior participating preferred stock will
be entitled to one vote, voting together with the common stock, and to other
voting rights. Each share of Series A junior participating preferred stock, if
and when issued upon the exercise of a right, will be entitled to a minimum
preferential quarterly dividend at the rate of $1.00 per share, but subject to
adjustments, will be entitled to a total dividend of 100 times the dividend
declared per share of common stock in the preceding quarter. The holders of the
Series A junior participating preferred stock will receive a preferred
liquidation payment of $.01 per share, but will be entitled to receive an
aggregate liquidation payment equal to 100 times the payment made per share of
common stock.
If any person or group becomes an acquiring person or a transaction occurs
that increases the acquiring person's proportionate ownership of the common
stock, each right, other than those held by an acquiring person, will become
exercisable at the current exercise price of the right, for that number of
shares of common stock then having a market value of two times the exercise
price of the right. If, following the acquisition by a person or group of 15%
or more of the outstanding shares of common stock, we are involved in a merger
or other business combination transaction or we sell or transfer assets or
earnings power totaling more than 50% of our assets or earning power, each
right will become exercisable, at the current exercise price, for that number
of shares of common stock of the acquiring company then having a market value
of two times the exercise price of each right.
Our Board of Directors, by the affirmative vote of at least 80% of the
continuing directors appointed to the Board by us (and not NACO) at the time of
our merger with NACO, may redeem the rights for $.01 per right, subject to
adjustment, until a person or group becomes an acquiring person. Any redemption
is effective at the time, on the basis, and with the conditions that the Board
of Directors may establish. The rights expire on September 29, 2005, unless we
redeem them earlier.
The purchase price payable, and the number of shares of Series A junior
participating preferred stock or other securities or property issuable upon
exercise of the rights are subject to adjustment to prevent dilution in some
circumstances.
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So long as the rights are attached to the common stock, we will issue one
right with each new share of common stock. All shares of common stock issued
will have attached rights. We also will issue one right with each new share of
common stock:
. issuable upon conversion of any convertible security issued, and
. issued upon exercise of options to purchase shares of common stock
granted by us,
before the time that the rights are no longer attached to the common stock.
The rights have anti-takeover effects. The rights will cause substantial
dilution to a person who attempts to acquire ABC-NACO without conditioning its
offer on a substantial number of the rights being acquired. The rights also
will adversely affect a person who desires to obtain control of ABC-NACO. The
rights will not affect a transaction approved by our Board of Directors before
the existence of an acquiring person, because the rights can be redeemed.
Preferred Stock
Our Board of Directors may issue, without further authorization from our
stockholders, up to 1,000,000 shares of preferred stock in one or more series.
Our Board of Directors may determine at the time of creating each series:
. dividend rights and rates;
. voting and conversion rights;
. redemption provisions;
. liquidation preferences; and
. other relative, participating, optional or other special rights,
qualifications, limitations or restrictions of the series.
We will describe in a prospectus supplement relating to any series of
preferred stock being offered the terms of the preferred stock, which may
include:
. the maximum number of shares to constitute the series;
. any annual dividend rate on the shares, whether the rate is fixed or
variable or both, the date or dates from which dividends will accrue,
whether the dividends will be cumulative and any dividend preference;
. whether the shares will be redeemable and, if so, the price at and the
terms and conditions on which the shares may be redeemed;
. any liquidation preference applicable to the shares;
. the terms of any sinking fund;
. any terms and conditions on which the shares of the series shall be
convertible into, or exchangeable for, shares of any other capital
stock;
. any voting rights of the shares of the series; and
. any other preferences or special rights or limitations on the shares of
the series.
Provisions With Possible Anti-Takeover Effects
As discussed above, we have adopted a rights agreement that provides
stockholders with rights to purchase shares of common stock or securities of
ABC-NACO (or of an acquiring company) at half of the market price under certain
circumstances involving a potential change in control of ABC-NACO that has not
been approved by the Board of Directors. The rights agreement is intended as a
means to protect the value of the stockholders' investment in ABC-NACO while
preserving the possibility of a fair acquisition bid. In addition, the Delaware
12
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General Corporation Law provides, among other things, that any beneficial owner
of more than 15% of our voting stock is prohibited, without the prior approval
of the Board of Directors, from entering into any business combination with us
for three years from the date the 15% ownership interest is acquired.
Our restated certificate of incorporation and our restated by-laws contain
other provisions which may be viewed as having an anti-takeover effect. Our
restated certificate of incorporation classifies the Board of Directors into
three classes and the by-laws provide that vacancies on the Board of Directors
are to be filled by a majority vote of directors and that directors so chosen
will hold office until the end of the full term of the class in which the
vacancy occurred. A vote of the holders of 66 2/3% of our outstanding voting
stock is required to amend these provisions. Under the Delaware General
Corporation Law, our directors may only be removed for cause.
PLAN OF DISTRIBUTION
We may sell the securities:
. through underwriting syndicates represented by one or more managing
underwriters,
. through one or more firms acting as underwriters,
. through dealers or agents, or
. directly to investors.
The prospectus supplement with respect to the securities will describe the
terms of the offering, the purchase price of the securities and the proceeds to
us from the sale, any underwriters, dealers or agents, any delayed delivery
arrangements, any fees, underwriting discounts and other underwriters'
compensation. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may change.
If the sale of securities involves underwriters, the underwriters will
acquire the securities for their own account and resell them in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The cover of the
prospectus supplement will name the underwriter or underwriters or managing
underwriters or underwriters, with respect to an underwriting syndicate, for a
particular underwritten offering. Except as the prospectus supplement
indicates, the obligations of the underwriters to purchase the securities will
be subject to conditions precedent. The underwriters will be obligated to
purchase all the securities offered by the prospectus supplement if any are
purchased.
If the sale of securities involves dealers, we will sell the securities to
the dealers as principals. The dealers then may resell the securities to the
public at varying prices to be determined by the dealers at the time of resale.
The prospectus supplement will name the dealers and describe the terms of the
transaction.
The prospectus supplement will name any agent involved in the offer or sale
of the securities and will indicate any commissions payable by us to that
agent. Unless the prospectus supplement states otherwise, any agent will be
acting on a best efforts basis for the period of its appointment.
We will sell the securities directly to institutional investors or others,
who may be deemed to be underwriters within the meaning of the Securities Act
of 1933 with respect to any resale. The prospectus supplement will describe the
terms of any of those sales.
If the prospectus supplement indicates, we will authorize agents,
underwriters or dealers to solicit offers from institutions to purchase
securities from us at the public offering price indicated in the prospectus
supplement through delayed delivery contracts providing for payment and
delivery on a specified date in the future. The prospectus supplement will
specify the conditions of these contracts and the commission payable for
solicitation of the contracts.
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<PAGE>
We may grant underwriters who participate in the distribution of securities
an option to purchase additional securities to cover over-allotments, if any,
in connection with the distribution.
Agents, dealers and underwriters may be entitled under agreements with us to
indemnification by us against civil liabilities, including those under the
Securities Act, or to contribution with respect to those payments that agents,
dealers or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with, or perform
services for us in the ordinary course of business.
All debt securities will be new issues of securities with no established
trading market. Underwriters involved in the public offering and sale of debt
securities may make a market in the debt securities. However, they are not
obligated to make a market and may discontinue market making activity at any
time. Therefore, we cannot give any assurances to you as to the liquidity of
the trading market for any debt securities.
Underwriters or agents and their associates may be customers of, engage in
transactions with or perform services for us in the ordinary course of
business.
LEGAL OPINIONS
Schiff Hardin & Waite, Chicago, Illinois, will pass upon the validity of the
securities offered by this prospectus for us. The opinions with respect to the
securities may be subject to assumptions regarding future action to be taken by
us and the trustee in connection with the issuance and sale of particular
securities, the specific terms of the securities and other matters that may
affect the validity of securities but that cannot be ascertained on the date of
those opinions.
EXPERTS
We have incorporated by reference in this prospectus our audited financial
statements as of July 31, 1999, 1998 and 1997, and for each of the three years
in the period ended July 31, 1999, in reliance on the audit report of Arthur
Andersen LLP, which issued the report as independent accountants and as experts
in auditing and accounting. We refer you to that report, which includes an
explanatory paragraph with respect to our change in the method of accounting
for business process reengineering costs effective August 1, 1997, and our
method of accounting for start-up costs effective August 1, 1998, as discussed
in Note 2 to the financial statements.
14
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table indicates the estimated amounts of expenses to be borne
by ABC-NACO in connection with the offering described in this registration
statement:
<TABLE>
<S> <C>
SEC registration fee............................................ $ 75,824
Trustee fees and expenses....................................... 20,000
Printing and engraving expenses................................. 100,000
Accounting fees and expenses.................................... 20,000
Legal fees and expenses......................................... 150,000
Miscellaneous expenses.......................................... 9,176
--------
Total....................................................... $375,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers
Section 102 of the Delaware General Corporation Law (the "Delaware law")
allows a corporation to eliminate the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except in cases where the director breached his or her duty
of loyalty to the corporation or its stockholders, failed to act in good faith,
engaged in intentional misconduct or a knowing violation of the law, willfully
or negligently authorized the unlawful payment of a dividend or approved an
unlawful stock redemption or repurchase or obtained an improper personal
benefit. Our restated certificate of incorporation contains a provision which
eliminates directors' personal liability as set forth above.
Our restated certificate of incorporation and restated by-laws provide in
effect that we shall indemnify its directors and officers to the extent
permitted by the Delaware law. Section 145 of the Delaware law provides that a
Delaware corporation has the power to indemnify its directors, officers,
employees and agents in certain circumstances. Subsection (a) of Section 145 of
the Delaware law empowers a corporation to indemnify any director, officer,
employee or agent, or former director, officer, employee or agent, who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director, officer, employee or agent
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, provided that such director, officer, employee
or agent had no reasonable cause to believe that his or her conduct was
unlawful.
Subsection (b) of Section 145 of the Delaware law empowers a corporation to
indemnify any director, officer, employee or agent, or former director,
officer, employee or agent, who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the fact
that such person acted in any of the capacities set forth above, against
expenses (including attorneys' fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit provided that
such person acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation, except that
no indemnification may be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery shall
determine that despite the adjudication of liability such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 145 further provides that to the extent that a director or officer
or employee of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the
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defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him or her in connection therewith; that indemnification provided by Section
145 shall not be deemed exclusive of any other rights to which the party
seeking indemnification may be entitled; and the corporation is empowered to
purchase and maintain insurance on behalf of a director, officer, employee or
agent of the corporation against any liability asserted against him or her or
incurred by him or her in any such capacity or arising out of his or her status
as such whether or not the corporation would have the power to indemnify him or
her against such liabilities under Section 145; and that, unless
indemnification is ordered by a court, the determination that indemnification
under subsections (a) and (b) of Section 145 is proper because the director,
officer, employee or agent has met the applicable standard of conduct under
such subsections shall be made by (1) a majority vote of the directors who are
not parties to such action, suit or proceeding, even though less than a quorum,
or (2) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by the stockholders.
We have in effect insurance policies for general officers' and directors'
liability insurance covering all of our officers and directors.
The form(s) of proposed underwriting agreement(s) to be filed as (an)
Exhibit(s) hereto or incorporated by reference herein may include provisions
regarding the indemnification of our officers and directors by the several
underwriters.
Item 16. Exhibits
A list of the exhibits filed herewith or incorporated by reference is set
forth in the Index to Exhibits which is incorporated herein by reference.
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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
SEC by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(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
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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.
(4) 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 an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) That, 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.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person 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 of
whether such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
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<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 Downers Grove, State of Illinois, on this 21st day
of October, 1999.
ABC-NACO INC.
(Registrant)
/s/ Joseph A. Seher
By: _________________________________
Joseph A. Seher
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on October 21, 1999 by the following
persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Joseph A. Seher Chief Executive Officer (Principal
___________________________________________ Executive Officer) and Director
Joseph A. Seher
/s/ * Chairman of the Board of Directors
___________________________________________
Donald W. Grinter
/s/ J. P. Singsank Senior Vice President and Chief Financial
___________________________________________ Officer (Principal Financial Officer)
J. P. Singsank
/s/ Brian L. Greenburg Vice President and Corporate Controller
___________________________________________ (Chief Accounting Officer)
Brian L. Greenburg
/s/ * Director
___________________________________________
Richard A. Drexler
/s/ * Director
___________________________________________
Daniel W. Duval
/s/ * Director
___________________________________________
Jean-Pierre M. Ergas
/s/ * Director
___________________________________________
James E. Martin
/s/ * Director
___________________________________________
George W. Peck IV
/s/ * Director
___________________________________________
Willard H. Thompson
</TABLE>
/s/ J. P. Singsank
*By: ________________________________
J. P. Singsank
Attorney-in-Fact
(Pursuant to Powers of Attorney
filed as Exhibits to this
Registration Statement)
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------- ------- ---
<C> <S> <C>
1.1 Form of Underwriting Agreement.*
3.1 Our Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to our Form 10-Q for our fiscal quarter
ended April 30, 1999).
3.2 Our Restated By-laws (incorporated by reference to Exhibit 3.2
to our Form 10-Q for our fiscal quarter ended April 30, 1999).
4.1 Our Restated Certificate of Incorporation (see Exhibit 3.1).
4.2 Our Restated By-laws (see Exhibit 3.2).
4.3 Rights Agreement, dated as of September 29, 1995, between us and
LaSalle National Trust, N.A., as Rights Agent (the "Rights
Agreement") (incorporated by reference to Exhibit 4.2 to our
Current Report on Form 8-K filed with the SEC on October 2, 1995
(SEC File No. 0-22906)).
4.4 Amendment No. 1 to the Rights Agreement, dated November 15, 1996
(incorporated by reference to Exhibit 4.1 to our Form 10-Q our
fiscal quarter ended October 31, 1996 (SEC File No. 0-22906)).
4.5 Amendment No. 2 to the Rights Agreement, dated September 17,
1998 (incorporated by reference to Exhibit 4.1 to our Form 8-A/A
filed with the SEC on September 24, 1998
(SEC File No. 0-22906)).
4.6 Form of Indenture (the "Indenture") between us and Norwest Bank
Minnesota, N.A. as trustee.
5.1 Opinion of Schiff Hardin & Waite.
12.1 Computation of our Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Schiff Hardin & Waite (contained in their opinion
filed as Exhibit 5.1).
24.1 Power of Attorney for Donald W. Grinter.
24.2 Power of Attorney for Richard A. Drexler.
24.3 Power of Attorney for Daniel W. Duval.
24.4 Power of Attorney for Jean-Pierre M. Ergas.
24.5 Power of Attorney for James E. Martin.
24.6 Power of Attorney for George W. Peck IV.
24.7 Power of Attorney for Willard H. Thompson.
25.1 Statement of Eligibility and Qualification on Form T-1 of
Norwest Bank Minnesota, N.A. to act as trustee under the
Indenture.
</TABLE>
- --------
*To be filed by amendment or by a report on Form 8-K pursuant to Section 601 of
Regulation S-K.
<PAGE>
EXHIBIT 4.6
- --------------------------------------------------------------------------------
ABC-NACO Inc.
----------------------------
INDENTURE
Dated as of October __, 1999
----------------------------
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE.................................................... 1
Section 1.1. Definitions............................................................... 1
Section 1.2. Other Definitions......................................................... 5
Section 1.3. Incorporation by Reference of Trust Indenture Act......................... 7
Section 1.4. Rules of Construction..................................................... 7
ARTICLE II.
THE SECURITIES........................................................................... 9
Section 2.1 Issuable in Series........................................................ 9
Section 2.2. Establishment of Terms of Series of Securities............................ 9
Section 2.3. Execution and Authentication..............................................11
Section 2.4. Registrar and Paying Agent................................................12
Section 2.5. Paying Agent to Hold Money in Trust.......................................13
Section 2.6. Securityholder Lists......................................................13
Section 2.7. Transfer and Exchange.....................................................14
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities..........................14
Section 2.9. Outstanding Securities....................................................15
Section 2.10. Treasury Securities.......................................................16
Section 2.11. Temporary Securities......................................................16
Section 2.12. Cancellation..............................................................16
Section 2.13. Defaulted Interest........................................................16
Section 2.14. Global Securities.........................................................16
Section 2.15. CUSIP, ISIN and Common Code Numbers.......................................18
ARTICLE III.
REDEMPTION...............................................................................18
Section 3.1. Notice to Trustee.........................................................18
Section 3.2. Selection of Securities to be Redeemed....................................18
Section 3.3. Notice of Redemption......................................................19
Section 3.4. Effect of Notice of Redemption............................................19
Section 3.5. Deposit of Redemption Price...............................................20
Section 3.6. Securities Redeemed in Part...............................................20
ARTICLE IV.
COVENANTS................................................................................20
Section 4.1. Payment of Principal and Interest.........................................20
Section 4.2. SEC Reports...............................................................20
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 4.3. Compliance Certificate....................................................20
Section 4.4. Stay, Extension and Usury Laws............................................21
Section 4.5. Corporate Existence.......................................................21
Section 4.6. Taxes.....................................................................21
ARTICLE V.
SUCCESSORS...............................................................................21
Section 5.1. When Company May Merge, Etc...............................................21
Section 5.2. Successor Corporation Substituted.........................................22
ARTICLE VI.
DEFAULTS AND REMEDIES....................................................................22
Section 6.1. Events of Default.........................................................22
Section 6.2. Acceleration of Maturity; Rescission and Annulment........................24
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee...........26
Section 6.4. Trustee May File Proofs of Claim..........................................26
Section 6.5. Trustee May Enforce Claims Without Possession of Securities...............27
Section 6.6. Application of Money Collected............................................27
Section 6.7. Limitation on Suits.......................................................28
Section 6.8. Unconditional Right of Holders to Receive Principal and Interest..........28
Section 6.9. Restoration of Rights and Remedies........................................29
Section 6.10. Rights and Remedies Cumulative............................................29
Section 6.11. Delay or Omission Not Waiver..............................................29
Section 6.12. Control by Holders........................................................29
Section 6.13. Waiver of Past Defaults...................................................30
Section 6.14. Undertaking for Costs.....................................................30
ARTICLE VII.
TRUSTEE..................................................................................31
Section 7.1. Duties of Trustee.........................................................31
Section 7.2. Rights of Trustee.........................................................32
Section 7.3. Individual Rights of Trustee..............................................33
Section 7.4. Trustee's Disclaimer......................................................33
Section 7.5. Notice of Defaults........................................................33
Section 7.6. Reports by Trustee to Holders.............................................33
Section 7.7. Compensation and Indemnity................................................34
Section 7.8. Replacement of Trustee....................................................34
Section 7.9. Successor Trustee by Merger, etc..........................................35
Section 7.10. Eligibility; Disqualification.............................................36
Section 7.11. Preferential Collection of Claims Against Company.........................36
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE...................................................36
Section 8.1. Satisfaction and Discharge of Indenture...................................36
Section 8.2. Application of Trust Funds; Indemnification...............................37
Section 8.3. Legal Defeasance of Securities of any Series..............................38
Section 8.4. Covenant Defeasance.......................................................39
Section 8.5. Repayment to Company......................................................41
ARTICLE IX.
AMENDMENTS AND WAIVERS...................................................................41
Section 9.1. Without Consent of Holders................................................41
Section 9.2. With Consent of Holders...................................................41
Section 9.3. Limitations...............................................................42
Section 9.4. Compliance with Trust Indenture Act.......................................43
Section 9.5. Revocation and Effect of Consents.........................................43
Section 9.6. Notation on or Exchange of Securities.....................................43
Section 9.7. Trustee Protected.........................................................43
ARTICLE X.
MISCELLANEOUS............................................................................44
Section 10.1. Trust Indenture Act Controls..............................................44
Section 10.2. Notices...................................................................44
Section 10.3. Communication by Holders with Other Holders...............................45
Section 10.4. Certificate and Opinion as to Conditions Precedent........................45
Section 10.5. Statements Required in Certificate or Opinion.............................45
Section 10.6. Rules by Trustee and Agents...............................................46
Section 10.7. Legal Holidays............................................................46
Section 10.8. No Recourse Against Others................................................46
Section 10.9. Counterparts..............................................................46
Section 10.10. Governing Laws............................................................46
Section 10.11. No Adverse Interpretation of Other Agreements.............................46
Section 10.12. Successors................................................................47
Section 10.13. Severability..............................................................47
Section 10.14. Table of Contents, Headings, Etc..........................................47
Section 10.15. Securities in a Foreign Currency or in ECU................................47
Section 10.16. Judgment Currency.........................................................48
ARTICLE XI.
SINKING FUNDS............................................................................48
Section 11.1. Applicability of Article..................................................48
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.....................49
Section 11.3. Redemption of Securities for Sinking Fund.................................49
</TABLE>
iii
<PAGE>
ABC-NACO Inc.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of October __, 1999
<TABLE>
<CAPTION>
<S> <C>
(S)310(a)(1)................................................. 7.10
(a)(2)................................................. 7.10
(a)(3)................................................. Not Applicable
(a)(4)................................................. Not Applicable
(a)(5)................................................. 7.10
(b)................................................. 7.10
(S) 311(a)................................................. 7.11
(b)................................................. 7.11
(c)................................................. Not Applicable
(S) 312(a)................................................. 2.6
(b)................................................. 10.3
(c)................................................. 10.3
(S) 313(a)................................................. 7.6
(b)(1)................................................. 7.6
(b)(2)................................................. 7.6
(c)(1)................................................. 7.6
(d)................................................. 7.6
(S) 314(a)................................................. 4.2, 10.5
(b)................................................. Not Applicable
(c)(1)................................................. 10.4
(c)(2)................................................. 10.4
(c)(3)................................................. Not Applicable
(d)................................................. Not Applicable
(e)................................................. 10.5
(f)................................................. Not Applicable
(S) 315(a)................................................. 7.1
(b)................................................. 7.5
(c)................................................. 7.1
(d)................................................. 7.1
(e)................................................. 6.14
(S) 316(a)................................................. 2.10
(a)(1)(A)................................................. 6.12
(a)(1)(B)................................................. 6.13
(b)................................................. 6.8
(S) 317(a)(1)................................................. 6.3
(a)(2)................................................. 6.4
(b)................................................. 2.5
(S) 318 (a)................................................. 10.1
</TABLE>
- ---------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
INDENTURE dated as of October __, 1999 between ABC-NACO Inc., a Delaware
corporation ("Company"), and Norwest Bank Minnesota, National Association
("Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Securities issued under this
Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
-----------
"Additional Amounts" means any additional amounts which are required hereby
or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes imposed on Holders specified therein
and which are owing to such Holders.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is
made or given by the Trustee shall constitute a sufficient publication of such
notice.
"Bearer" means anyone in possession from time to time of a Bearer Security.
"Bearer Security" means any Security, including any interest coupon
appertaining thereto, that does not provide for the identification of the Holder
thereof.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
<PAGE>
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in
full force and effect on the date of the certificate and delivered to the
Trustee.
"Business Day" means, unless otherwise provided by Board Resolution,
Officers' Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York or
the City of Chicago, Illinois on which banking institutions are authorized or
required by law, regulation or executive order to close.
"Company" means the party named as such above until a successor replaces it
and thereafter means the successor.
"Company Order" means a written order signed in the name of the Company by
two Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the Company
by its Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered.
"Debt" of any person as of any date means, without duplication, all
indebtedness of such person in respect of borrowed money, including all
interest, fees and expenses owed in respect thereto (whether or not the recourse
of the lender is to the whole of the assets of such person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Depository" 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 Depository for such Series by the Company, which Depository
shall be a clearing agency which (i) credits beneficial interests in such Global
Securities to its participating organizations through a computerized book-entry
system and (ii) if located in the United States, is registered under the
Exchange Act; and if at any time there is more than one such person,
"Depository" as used with respect to the Securities of any Series shall mean the
Depository with respect to the Securities of such Series.
"Discount Security" means any Security that provides for an amount less
than the stated principal amount thereof to be due and payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.2.
2
<PAGE>
"Dollars" means the currency of The United States of America.
"ECU" means the European Currency Unit as determined by the Commission of
the European Union.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of The United States of America.
"Foreign Government Obligations" means with respect to Securities of any
Series that are denominated in a Foreign Currency, (i) direct obligations of the
government that issued or caused to be issued such currency for the payment of
which obligations its full faith and credit is pledged or (ii) obligations of a
person controlled or supervised by or acting as an agency or instrumentality of
such government the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case under
clauses (i) or (ii), are not callable or redeemable at the option of the issuer
thereof.
"Global Security" or "Global Securities" means a Security or Securities,
as the case may be, in the form established pursuant to Section 2.2 evidencing
all or part of a Series of Securities, issued to the Depository for such Series
or its nominee, and registered in the name of such Depository or nominee.
"Holder" or "Securityholder" means a person in whose name a Security is
registered or the holder of a Bearer Security.
"Indenture" means this Indenture as amended from time to time and shall
include the form and terms of particular Series of Securities established as
contemplated hereunder.
"interest" with respect to any Discount Security which by its terms bears
interest only after Maturity, means interest payable after Maturity.
"Maturity," when used with respect to any Security or installment of
principal thereof or interest thereon, means the date on which the principal of
such Security or such installment of principal or interest becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise.
"Officer" means the Chairman of the Board, any President, any Vice
President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one of
whom must be the Company's principal executive officer, principal financial
officer or principal accounting officer.
3
<PAGE>
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on, and any Additional Amounts in respect of,
the Security.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust. Office and also means, with respect to a particular corporate trust
matter, any other officer to whom any corporate trust matter is referred because
of his or her knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debentures, notes or other debt instruments of the
Company of any Series authenticated and delivered under this Indenture.
"Series" or "Series of Securities" means each series of debentures, notes
or other debt instruments of the Company created pursuant to Sections 2.1 and
2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect Subsidiary of
the Company that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933,
as amended, as such regulation is in effect on the date hereof, or (ii) any
group of direct or indirect Subsidiaries of the Company that, taken together as
a group, would be a "significant subsidiary" as defined in Article 1, Rule 1-02
of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as
amended, as such regulation is in effect on the date hereof.
"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" of any specified person means any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power for the election of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned by such person, or
by one or more other Subsidiaries, or by such person and one or more other
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-
7bbbb) as in effect on the date of this Indenture; provided, however, that in
the event the Trust Indenture Act of 1939
4
<PAGE>
is amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.
"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.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii) 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, and which in the case of (i)
and (ii) are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such depository receipt.
Section 1.2. Other Definitions.
------------------
<TABLE>
<CAPTION>
DEFINED IN
TERM SECTION
- ---- -------
<S> <C>
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.15
"Judgment Currency" 10.16
"Legal Holiday" 10.7
"mandatory sinking fund payment" 11.1
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Registrar" 2.4
"Required Currency" 10.16
"Service Agent" 2.4
"successor person" 5.1
</TABLE>
5
<PAGE>
Section 1.3. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any
successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein are used herein as so defined.
Section 1.4. Rules of Construction.
---------------------
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(c) references to "generally accepted accounting principles" shall
mean generally accepted accounting principles in effect as of the time when and
for the period as to which such accounting principles are to be applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the plural
include the singular; and
(f) provisions apply to successive events and transactions.
6
<PAGE>
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable in Series.
------------------
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more Series. All Securities of a Series shall be identical except as may
be set forth in a Board Resolution, a supplemental indenture or an Officers'
Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, Officers'
Certificate or supplemental indenture may provide for the method by which
specified terms (such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities may differ between
Series in respect of any matters, provided that all Series of Securities shall
be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment of Terms of Series of Securities.
----------------------------------------------
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of
Subsection 2.2.1, and either as to such Securities within the Series or as to
the Series generally, in the case of Subsections 2.2.2 through 2.2.22) by a
Board Resolution, a supplemental indenture or an Officers' Certificate pursuant
to authority granted under a Board Resolution:
2.2.1. the title of the Series (which shall distinguish the Securities
of that particular Series from the Securities of any other Series);
2.2.2. the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the Series will be issued;
2.2.3. 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 authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the Series pursuant
to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal of the Securities of
the Series is payable;
2.2.5. the rate or rates (which may be fixed or variable) per annum
or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any
regular record date for the
7
<PAGE>
interest payable on any interest payment date;
2.2.6. the place or places where the principal of, premium, if any,
and interest, if any, on the Securities of the Series shall be payable, or the
method of such payment, if by wire transfer, mail or other means;
2.2.7. if applicable, the period or periods within which, the price
or prices at which and the terms and conditions upon which the Securities of the
Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the obligation, if any, of the Company to redeem or purchase
the 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 or purchased, in whole or in part,
pursuant to such obligation;
2.2.9. the dates, if any, on which and the price or prices at which
the Securities of the Series will be repurchased by the Company at the option of
the Holders thereof and other detailed terms and provisions of such repurchase
obligations;
2.2.10. if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
2.2.11. the forms of the Securities of the Series in bearer or fully
registered form, and whether the Securities will be issuable as Global
Securities;
2.2.12. if other than the principal amount thereof, the portion of
the principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the currency of denomination of the Securities of the
Series, which may be Dollars or any Foreign Currency, including, but not limited
to, the ECU, and if such currency of denomination is a composite currency other
than the ECU, the agency or organization, if any, responsible for overseeing
such composite currency;
2.2.14. the designation of the currency, currencies or currency
units in which payment of the principal of, premium, if any, and interest, if
any, on the Securities of the Series will be made;
2.2.15. if payments of principal of, premium, if any, or interest,
if any, on the Securities of the Series are to be made in one or more currencies
or currency units other than that or those in which such Securities are
denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16. the manner in which the amounts of payment of principal of,
premium, if any,
8
<PAGE>
or interest, if any, on the Securities of the Series will be determined, if such
amounts may be determined by reference to an index based on a currency or
currencies other than that in which the Securities are denominated or designated
to be payable or by reference to a commodity, commodity index, stock exchange
index or financial index;
2.2.17. the provisions, if any, relating to any security provided
for the Securities of the Series;
2.2.18. the provisions, if any, relating to the subordination the
Securities of the Series;
2.2.19. the provisions, if any, relating to restrictions on transfer
of the Securities of the Series;
2.2.20. any addition to or change in the Events of Default which
applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 6.2;
2.2.21. any addition to or change in the covenants set forth in
Articles IV or V which applies to Securities of the Series;
2.2.22. any other terms of the Securities of the Series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1, but which may modify or delete any provision of this
Indenture insofar as it applies to such Series); and
2.2.23. the Depository, if any, and any interest rate calculation
agents, exchange rate calculation agents or other agents with respect to
Securities of such Series if other than those appointed herein.
All Securities of any one Series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental
indenture or Officers' Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture or Officers' Certificate.
Section 2.3. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the
9
<PAGE>
Trustee or an authenticating agent. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate, upon receipt
by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers' Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall
have received and (subject to Section 7.2) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or Officers'
Certificate establishing the form of the Securities of that Series or of
Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers' Certificate complying with
Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of such Series: (a) if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken; or (b) if the
Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors and/or vice-presidents shall determine that
such action would expose the Trustee to personal liability to Holders of any
then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
Section 2.4. Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of Securities,
at the place or places specified with respect to such Series pursuant to Section
2.2, an office or agency where Securities of such Series may be presented or
surrendered for payment ("Paying Agent"), where Securities of such Series may be
surrendered for registration of transfer or exchange ("Registrar") and where
notices and demands to or upon the Company in respect of the Securities, of such
Series and this Indenture may be served ("Service Agent"). The Registrar shall
keep a register with respect to each Series of Securities and their transfer and
exchange. The Company will give prompt written
10
<PAGE>
notice to the Trustee of the name and address, and any change in the name or
address, of each Registrar, Paying Agent or Service Agent. If at any time the
Company shall fail to maintain any such required Registrar, Paying Agent or
Service Agent or shall fail to furnish the Trustee with the name and 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 co-
registrars, additional paying agents or additional service agents 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
obligations to maintain a Registrar, Paying Agent and Service Agent in each
place so specified pursuant to Section 2.2 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 name or address of any such
co-registrar, additional paying agent or additional service agent. The term
"Registrar" includes any co-registrar; the term "Paying Agent" includes any
additional paying agent; and the term "Service Agent" includes any additional
service agent.
The Company hereby appoints the Trustee the initial Registrar, Paying
Agent and Service Agent for each Series unless another Registrar, Paying Agent
or Service Agent, as the case may be, is appointed prior to the time Securities
of that Series are first issued.
Section 2.5. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal of or interest on the Series of
Securities, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of Securityholders of any Series of Securities all money
held by it as Paying Agent.
Section 2.6. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of Securities issued in fully registered form and
shall otherwise comply with TIA (S) 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least ten days before each interest
payment date and at such other times as the Trustee may request in writing a
list, in such form and as of such date as the Trustee may reasonably require, of
the names and addresses of Securityholders of each Series of Securities issued
in fully registered form.
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Section 2.7. Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a co-
registrar with a request to register a transfer or to exchange them for an equal
principal amount of Securities of the same Series, the Registrar shall register
the transfer or make the exchange if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar's request. No service charge shall be
made for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required to (a) issue,
register the transfer of, or exchange Securities of any Series for the period
beginning at the opening of business fifteen days immediately preceding the
mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, (b)
register the transfer of or exchange Securities of any Series selected, called
or being called for redemption as a whole or the portion being redeemed of any
such Securities selected, called or being called for redemption in part, or (c)
transfer, register the transfer of, or exchange Securities of any Series that
contain transfer restrictions, unless and until all such restrictions are
removed or satisfied.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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 or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, 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.
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 new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every new Security of any Series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security 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 with
any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that
date such Securities of the Series cease to be outstanding and interest on them
ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
In determining whether the Holders of the requisite principal amount
of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.2.
Section 2.10. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver, Securities of a Series owned by the
Company or an Affiliate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
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Section 2.11. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a Company
Order. Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee upon request shall authenticate definitive Securities of the same
Series and date of maturity in exchange for temporary Securities. Until so
exchanged, temporary securities shall have the same rights under this Indenture
as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment, replacement or cancellation and shall destroy such canceled
Securities (subject to the record retention requirement of the Exchange Act) and
deliver a certificate of such destruction to the Company. The Company may not
issue new Securities to replace Securities that it has paid or delivered to the
Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the extent permitted
by law, any interest payable on the defaulted interest, to the persons who are
Securityholders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least 30 days before the record
date, the Company shall mail to the Trustee and to each Securityholder of the
Series a notice that states the record date, the payment date and the amount of
interest to be paid. The Company may pay defaulted interest in any other lawful
manner.
Section 2.14. Global Securities.
2.14.1. Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officers' Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of one or
more Global Securities and the Depository for such Global Security or
Securities.
2.14.2. Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.7 of the Indenture and in addition thereto, any
Global Security held by a Depository in the United States shall be exchangeable
pursuant to Section 2.7 of the Indenture for Securities registered in the names
of Holders other than the Depository for such Security or its nominee only if
(i) such Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security or if at any time such
Depository ceases to be a clearing agency registered under the Exchange Act,
and, in either case, the Company fails to appoint a
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successor Depository within 90 days of such event, (ii) the Company executes and
delivers to the Trustee an Officers' Certificate to the effect that such Global
Security shall be so exchangeable or (iii) an Event of Default with respect to
the Securities represented by such Global Security shall have happened and be
continuing. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Securities registered in such names as the
Depository shall direct in writing in an aggregate principal amount equal to the
principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security held by a
Depository in the United States may not be transferred except as a whole by the
Depository with respect to such Global Security to a nominee of such Depository,
by a nominee of such Depository to such Depository or another nominee of such
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such a successor Depository.
2.14.3. Legend. Any Global Security issued hereunder to a Depository
in the United States shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depository or
a nominee of the Depository. Unless this certificate is presented by an
authorized representative of the Depository to the Company or its agent for
registration of transfer, exchange or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of the Depository (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depository), any transfer, pledge or other
use hereof for value or otherwise by or to any person is wrongful inasmuch
as the registered owner hereof, Cede & Co., has an interest herein."
2.14.4. Acts of Holders. The Depository, as a Holder, may appoint
agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.
2.14.5. Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2, payment of
the principal of, premium, if any, and interest, if any, on any Global Security
shall be made to the Holder thereof.
2.14.6. Consents, Declaration and Directions. Except as provided in
Section 2.14.5, the Company, the Trustee and any Agent shall treat a person as
the Holder of such principal amount of outstanding Securities of such Series
represented by a Global Security as shall be specified in a written statement of
the Depository with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.
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Section 2.15. CUSIP, ISIN and Common Code Numbers.
The Company in issuing the Securities may use "CUSIP," "ISIN" or
"Common Code" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP," "ISIN" or "Common Code" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or may covenant to redeem and
pay the Series of Securities or any part thereof prior to the Stated Maturity
thereof at such time and on such terms as provided for in such Securities. If a
Series of Securities is redeemable and the Company wants or is obligated to
redeem prior to the Stated Maturity thereof all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee
of the redemption date and the principal amount of Series of Securities to be
redeemed. The Company shall give the notice at least 45 days before the
redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2. Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if less than
all the Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed in any manner that the Trustee deems
fair and appropriate. The Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities of the Series that
have denominations larger than $1,000. Securities of the Series and portions of
them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or,
with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.2.10, the minimum principal denomination for each Series
and integral multiples thereof. Provisions of this Indenture that apply to
Securities of a Series called for redemption also apply to portions of
Securities of that Series called for redemption.
Section 3.3. Notice of Redemption.
Unless otherwise indicated for a particular Series by Board
Resolution, a supplemental indenture hereto or an Officers' Certificate, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each
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Holder whose Securities are to be redeemed and if any Bearer Securities are
outstanding, publish on one occasion a notice in an Authorized Newspaper.
The notice shall identify the Securities of the Series to be redeemed
and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(e) that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date; and
(f) any other information as may be required by the terms of the
particular Series or the Securities of a Series being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided in
Section 3.3, Securities of a Series called for redemption become due and payable
on the redemption date and at the redemption price. A notice of redemption may
not be conditional. Upon surrender to the Paying Agent, such Securities shall be
paid at the redemption price plus accrued interest to the redemption date.
Section 3.5. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest, if any, on all Securities to be redeemed on that date.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security
surrendered.
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ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the Holders of
each Series of Securities that it will duly and punctually pay the principal of
and interest, if any, on the Securities of that Series in accordance with the
terms of such Securities and this Indenture.
Section 4.2. SEC Reports.
The Company shall deliver to the Trustee within 15 days after it files
them with the SEC 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 SEC may by rules and regulations prescribed which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA (S) 314(a).
Section 4.3. Compliance Certificate.
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
Section 4.4. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any
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power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law has been enacted.
Section 4.5. Corporate Existence.
Subject to Article V, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
Section 4.6. Taxes.
The Company shall, and shall cause each of its Significant
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies, except as contested in good faith and by appropriate
proceedings.
ARTICLE V.
SUCCESSORS
Section 5.1. When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or convey,
transfer or lease all or substantially all of its assets to, any person (a
"successor person"), and may not permit any person to merge into, or convey,
transfer or lease its assets substantially as an entirety to, the Company,
unless:
(a) the successor person (if any) is a corporation, partnership,
trust or other entity organized and validly existing under the laws of any
U.S. domestic jurisdiction and expressly assumes the Company's obligations
on the Securities and under this Indenture and
(b) immediately after giving effect to the transaction, no Default or
Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
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Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor person has been named
as the Company herein; provided, however, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any Series, means any one of the following events, unless in the establishing
Board Resolution, supplemental indenture or Officers' Certificate, it is
provided that such Series shall not have the benefit of said Event of Default:
(a) default in the payment of any interest on any Security of that
Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited
by the Company with the Trustee or with a Paying Agent prior to the
expiration of such period of 30 days); or
(b) default in the payment of the principal of, or premium, if any,
on, any Security of that Series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and as
due in respect of any Security of that Series; or
(d) (i) default in the performance or breach of Sections ___ hereof
or (ii) default in the performance of or breach of any other covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty that has been included in this Indenture solely for the benefit of
Series of Securities other than that Series), which default, in the case of
(ii) above, continues uncured for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of not less than a majority in
principal amount of the outstanding Securities of that Series a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) a default under any Debt of the Company (including a default with
respect
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to Securities of any Series other than that Series) or any Subsidiary,
whether such Debt now exists or shall hereafter be created, if (A) such
default results from the failure to pay any such Debt when it becomes due
and (B) the principal amount of such Debt, together with the principal
amount of any other such Debt in default for failure to pay principal at
stated final maturity or the maturity of which has been so accelerated,
aggregates $_____________ or more at any one time outstanding; or
(f) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is unable to pay its debts as the same become due;
or
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case,
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of its
property, or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days; or
(h) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company
or any of its Significant Subsidiaries and such judgment or judgments
remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $_____; or
(i) any other Event of Default provided with respect to Securities of
that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers'
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Certificate, in accordance with Section 2.2.18.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 6.2. 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 (other than an Event of Default
referred to in Section 6.1(f) or (g)) then in every such case the Trustee or the
Holders of not less than a majority in principal amount of the outstanding
Securities of that Series may declare the principal amount (or, if any
Securities of that Series are Discount Securities, such portion of the principal
amount as may be specified in the terms of such Securities) of and accrued and
unpaid interest, if any, on 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) and accrued and unpaid interest, if any, shall become
immediately due and payable. If an Event of Default specified in Section 6.1(f)
or (g) shall occur, the principal amount (or specified amount) of and accrued
and unpaid interest, if any, on all outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
any Series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in 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 if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest, if any, on all Securities of that
Series,
(ii) the principal of any Securities of that Series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities,
(iii) to the extent that payment of such interest is lawful,
interest upon any overdue principal and overdue interest at the rate
or rates prescribed therefor in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
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and
(b) all Events of Default with respect to Securities of that Series,
other than the non-payment of the principal of Securities of that Series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
(c) If an Event of Default occurs on or after _________, 200_ by
reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment of the premium
that the Company would have had to pay if the Company then had elected to
redeem the Notes pursuant to Article m hereof, then, upon acceleration of
the Notes, an equivalent premium shall also become and be immediately due
and payable, to the extent permitted by law, anything in this Indenture or
in the Notes to the contrary notwithstanding. If an Event of Default occurs
prior to _________, 200_ by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of
avoiding the prohibition on redemption of the Notes prior to such date,
then, upon acceleration of the Notes, an additional premium shall also
become and be immediately due and payable in an amount, for each of the
years beginning on ______ of the years set forth below, as set forth below
(expressed as a percentage of the principal amount of the Notes on the date
of payment that would otherwise be due but for the provisions of this
sentence):
Year Percentage
---- ----------
Section 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, o r
(b) default is made in the payment of principal of any Security at
the Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment when
and as due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and,
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to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal or any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other "obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or any other "obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any 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 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 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other "obligor upon the
Securities or the property of the Company or of such other "obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and
interest 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
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to 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,
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disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or 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, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 6.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or 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 7.7; and
Second: To the payment of the amounts then due and unpaid for
principal of 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 (subject to any subordination provisions applicable to the
Securities of any Series), according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company.
Section 6.7. 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
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
Series;
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(b) the Holders of not less than a majority in principal amount of
the outstanding Securities of that 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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) 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 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 such
Holders.
Section 6.8. Unconditional Right of Holders to Receive Principal 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 interest, if any, on,
such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 6.9. 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 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, 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
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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 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 6.12. Control by Holders.
The Holders of a majority in principal amount of the outstanding
Securities of any Series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
Section 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
outstanding Securities of any Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to such
Series and its consequences, except a Default in the payment of the principal
of, premium, if any, or interest, if any, on, any Security of such Series or, if
applicable, in respect of a covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Security of such
Series affected (provided, however, that the Holders of a majority in principal
amount of the outstanding Securities of any Series may rescind an acceleration
and its consequences, including any related payment default that resulted from
such acceleration). 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;
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but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
Section 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
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 or interest on
any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption date).
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ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise 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
person would exercise or use under the circumstances in the conduct of his
or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(ii) 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 Officers'
Certificates or Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture; however, in the case
of any such Officers' Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates and
Opinions of Counsel to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section.
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
taken, suffered 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 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.
(d) Every provision of this Indenture that in any way relates to the
Trustee is
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subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk
its own funds or otherwise incur any financial liability in the performance
of any of its duties, 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 is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating agent
shall be entitled to the protections, immunities and standard of care as
are set forth in paragraphs (a), (b) and (c) of this Section with respect
to the Trustee.
Section 7.2. Rights of Trustee.
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care. No
Depository shall be deemed an agent of the Trustee and the Trustee shall
not be responsible for any act or omission by any Depository.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(f) 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
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Securities 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.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.
Section 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect
to the Securities of any Series and if it is known to a Responsible Officer of
the Trustee, the Trustee shall mail to each Securityholder of the Securities of
that Series and, if any Bearer Securities are outstanding, publish on one
occasion in an Authorized Newspaper, notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a Responsible Officer of the
Trustee has knowledge of such Default or Event of Default. Except in the case of
a Default or Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and so long as
its corporate trust committee or a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of
Securityholders of that Series.
Section 7.6. Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee shall transmit
by mail to all Securityholders, as their names and addresses appear on the
register kept by the Registrar and, if any Bearer Securities are outstanding,
publish once in an Authorized Newspaper, a brief report dated as of such May 15,
in accordance with, and to the extent required under, TIA (S) 313.
A copy of each report at the time of its mailing to Securityholders of
any Series shall be filed with the SEC and each stock exchange on which the
Securities of that Series are listed. The Company shall promptly notify the
Trustee when Securities of any Series are listed on any stock exchange.
Section 7.7. Compensation and Indemnity.
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The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
Except as set forth in the next paragraph, the Company shall indemnify
the Trustee against any loss, liability or expense (including the cost of
defending itself) incurred by it in the performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld. This indemnification shall
apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities of any Series on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company. The Holders of a majority in principal
amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove
the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
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(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or
more Series does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of at
least 10% in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee with respect to the Securities of any one or more
Series fails to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series and, if any Bearer Securities are
outstanding, publish such notice on one occasion in an Authorized Newspaper.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 hereof shall continue for the benefit of
the retiring trustee with respect to expenses and liabilities incurred by it
prior to such replacement.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) l0(a)(l), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least
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$25,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.1), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered
(other than Securities that have been destroyed, lost or stolen and
that have been replaced or paid) have been delivered to the Trustee
for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee
for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity
within one year, or
(3) 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, or
(4) are deemed paid and discharged pursuant to Section 8.3,
as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the
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entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of such deposit (in the
case of Securities which have become due and payable on or prior to the date of
such deposit) or to the Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.7, and, if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the
provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall survive.
Section 8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money deposited
with the Trustee pursuant to Section 8.1, all money and U.S. Government
Obligations or Foreign Government Obligations deposited with the Trustee
pursuant to Section 8.3 or 8.4 and all money received by the Trustee in
respect of U.S. Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in
trust and applied by it, in accordance with the provisions of the
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 persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with
or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Sections 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations or Foreign Government Obligations deposited pursuant to
Sections 8.3 or 8.4 or the interest and principal received in respect of
such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which,
in the opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof delivered
to the Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such U.S.
Government Obligations or Foreign Government Obligations or money were
deposited or
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received. This provision shall not authorize the sale by the Trustee of any
U.S. Government Obligations or Foreign Government Obligations held under
this Indenture.
Section 8.3. Legal Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified, pursuant to Section
2.2.20, to be inapplicable to Securities of any Series, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of such Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such outstanding Securities of such Series, shall no
longer be in effect (and the Trustee, at the expense of the Company, shall, at
Company Request, execute proper instruments acknowledging the same), except as
to:
(a) the rights of Holders of Securities of such Series to receive,
from the trust funds described in subparagraph (d) hereof, (i) payment of
the principal of and each installment of principal of and interest on the
outstanding Securities of such Series on the Stated Maturity of such
principal or installment of principal or interest and (ii) the benefit of
any mandatory sinking fund payments applicable to the Securities of such
Series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such Series;
(b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder; provided that, the following conditions shall have been
satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee 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 (i) in
the case of Securities of such Series denominated in Dollars, cash in
Dollars (or such other money or currencies as shall then be legal tender in
the United States) and/or U.S. Government Obligations, or (ii) in the case
of Securities of such Series denominated in a Foreign Currency (other than
a composite currency), money and/or Foreign Government Obligations, which
through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash,
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 each installment of principal
(including mandatory sinking fund or analogous payments) of and interest,
if any, on all the Securities of such Series on the dates such installments
of interest or principal are due;
(e) such deposit will not result in a breach or violation of, or
constitute a default
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under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Securities of such Series 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 and in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge had
not occurred;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such Series over any
other creditors of the company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such
deposit constituting an investment company (as defined in the Investment
Company Act of 1940, as amended), or such trust shall be qualified under
such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
Section 8.4. Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to Section
2.2.20 to be inapplicable to Securities of any Series, on and after the 91st day
after the date of the deposit referred to in subparagraph (a) hereof, the
Company may omit to comply with any term, provision or condition set forth under
Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional covenants
contained in a supplemental indenture hereto for a particular Series of
Securities or a Board Resolution or an Officers' Certificate delivered pursuant
to Section 2.2.20 (and the failure to comply with any such covenants shall not
constitute a Default or Event of Default under Section 6.1) and the occurrence
of any event described in clause (e) of Section 6.1 shall not constitute a
Default or Event of Default hereunder, with respect to the Securities of such
Series, provided that the following conditions shall have been satisfied:
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(a) With reference to this Section 8.4, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities
(i) in the case of Securities of such Series denominated in Dollars, cash
in Dollars (or such other money or currencies as shall then be legal tender
in the United States) and/or U.S. Government Obligations, or (ii) in the
case of Securities of such Series denominated in a Foreign Currency (other
than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay principal, premium, if any, and interest,
if any, on and any mandatory sinking fund in respect of the Securities of
such Series on the dates such installments of interest or principal are
due;
(b) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(d) the Company shall have delivered to the Trustee an Opinion of
Counsel confirming that Holders of the Securities of such Series will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit and 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 deposit and defeasance had not occurred;
(e) the Company shall have delivered to the Trustee an Officers'
Certificate stating the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by
this Section have been complied with.
Section 8.5. Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal and interest that remain
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general
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creditors unless an applicable abandoned property law designates another person.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(d) to make any change that does not adversely affect the rights of
any Securityholder;
(e) to provide for the issuance of and establish the form and terms
and conditions of Securities of any Series as permitted by this Indenture;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more Series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(g) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
Unless otherwise specified with respect to any Series of Securities,
the Company and the Trustee may enter into a supplemental indenture with the
written consent of the Holders of at least a majority in principal amount of the
outstanding Securities of each Series affected by such supplemental indenture
(including consents obtained in connection with a tender offer or exchange offer
for the Securities of such Series), for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner the rights of the
Securityholders of each such Series. Except as provided in Section 6.13, the
Holders of at least a majority in principal amount of the outstanding Securities
of each Series affected by such waiver by notice to the Trustee (including
consents obtained in connection with a tender offer or exchange offer for the
Securities of such Series) may
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waive compliance by the Company with any provision of this Indenture or the
Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby and, if any Bearer Securities affected thereby are
outstanding, publish on one occasion in an Authorized Newspaper, a notice
briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected, an amendment or
waiver may not:
(a) change the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest
(including default interest) on any Security;
(c) reduce the principal of, or premium, if any, on, or change the
Stated Maturity of, any Security or reduce the amount of, or postpone the
date fixed for, the payment of any sinking fund or analogous obligation;
(d) reduce the principal amount of Discount Securities payable upon
acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment of the
principal of, premium, if any, or interest, if any, on, any Security
(except a rescission of acceleration of the Securities of any Series by the
Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that resulted
from such acceleration);
(f) make the principal of, premium, if any, or interest, if any, on,
any Security payable in any currency other than that stated in the
Security;
(g) make any change in Sections 6.8, 6.13, 9.3 (this sentence), 10.15
or 10.16; or
(h) waive a redemption payment with respect to any Security or change
any of the provisions with respect to the redemption of any Securities.
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Section 9.4. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more
Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
Section 9.5. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder
of each Series affected by such amendment or waiver unless it is of the type
described in any of clauses (a) through (g) of Section 9.3. In that case, the
amendment or waiver shall bind each Holder of a Security who has consented to it
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
Section 9.6. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or
waiver on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series' may issue and the Trustee shall
authenticate upon request new Securities of that Series that reflect the
amendment or waiver.
Section 9.7. Trustee Protected.
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 7.1) 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 shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed
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provision shall control.
Section 10.2. Notices.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail:
if to the Company:
ABC-NACO Inc.
2001 Butterfield Road
Downers Grove, Illinois 60515
Phone: (630) 852-1300
Attention: Chief Financial Officer
if to the Trustee:
Norwest Bank Minnesota, National Association
Corporate Trust Services
N9303-120
Sixth Street and Marquette Avenue
Minneapolis, MN 55479
Attention: Ms. Jane Schweiger
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar and,
if any Bearer Securities are outstanding, published in an Authorized Newspaper.
Failure to mail a notice or communication to a Securityholder of any Series or
any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication is mailed or published in the manner
provided above, within the time prescribed, it is duly given, whether or not the
Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA (S)
312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or
all Series. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S) 312(c).
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Section 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA (S) 31 4(a)(4)) shall comply with the provisions of TIA
(S) 314(e) and shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 10.7. Legal Holidays.
Unless otherwise provided by Board Resolution, Officers' Certificate
or supplemental indenture for a particular Series, a "Legal Holiday" is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the
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next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
Section 10.8. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.10. Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF ILLINOIS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.13. Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14. Table of Contents, Headings, Etc.
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The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities in a Foreign Currency or in ECU.
Unless otherwise specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate delivered pursuant to Section 2.2
of this Indenture with respect to a particular Series of Securities, whenever
for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all Series
or all Series affected by a particular action at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes
of this Section 10.15, "Market Exchange Rate" shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Union (or any successor thereto) as published in the Official
Journal of the European Union (such publication or any successor publication,
the "Journal"). If such Market Exchange Rate is not available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question or, in the case of ECUs, in
Luxembourg or such other quotations or, in the case of ECUs, rates of exchange
as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
Section 10.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal of
or interest or other amount on the Securities of any Series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking
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procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a New York Banking Day, then, the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of a Series, except as otherwise permitted
or required by any form of Security of such Series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of the Securities of any Series is herein referred to as a "mandatory
sinking fund payment" and any other amount provided for by the terms of
Securities of such Series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any Series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 11.2. Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the Securities of such
Series.
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any Series to be made pursuant to
the terms of such Securities (1) deliver outstanding Securities of such Series
to which such sinking fund payment is applicable (other than any of such
Securities previously called for mandatory sinking fund redemption) and (2)
apply as credit Securities of such Series to which such sinking fund payment is
applicable and which have been redeemed either at the election of the Company
pursuant to the terms of such Series of
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Securities (except pursuant to any mandatory sinking fund) or through the
application of permitted optional sinking fund payments or other optional
redemptions pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities shall be
received by the Trustee, together with an Officers' Certificate with respect
thereto, not later than 15 days prior to the date on which the Trustee begins
the process of selecting Securities for redemption, and shall be credited for
such purpose by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Securities in lieu of cash payments pursuant to this Section 11.2, the
principal amount of Securities of such Series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such Series for redemption, except upon receipt of a Company
Order that such action be taken, and such cash payment shall be held by the
Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall from
time to time upon receipt of a Company Order pay over and deliver to the Company
any cash payment so being held by the Trustee or such Paying Agent upon delivery
by the Company to the Trustee of Securities of that Series purchased by the
Company having an unpaid principal amount equal to the cash payment required to
be released to the Company.
Section 11.3. Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board
Resolution, supplemental indenture hereto or Officers' Certificate in respect of
a particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular
Series of Securities) 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 3.2 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 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
ABC-NACO Inc.
By: ____________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: _____________________________
Name:
Title:
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Exhibit 5.1
[SCHIFF HARDIN & WAITE LETTERHEAD]
October 20, 1999
ABC-NACO Inc.
2001 Butterfield Road
Suite 502
Downers Grove, Illinois 60515
Re: ABC-NACO Inc. Registration Statement on Form S-3
------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to ABC-NACO Inc., a Delaware corporation (the
"Company"), in connection with the filing of a Registration Statement on Form
S-3 (as it may be amended from time to time, the "Registration Statement") with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended (the "Act"). The Registration Statement relates to the registration
under the Act of up to $300,000,000 of (i) the Company's debt securities,
consisting of debentures, notes or other evidences of indebtedness in one or
more series ("Debt Securities"); (ii) Preferred Stock, $1.00 par value, of the
Company in one or more series ("Preferred Stock"); and (iii) Common Stock, $.01
par value ("Common Stock"), of the Company and related rights to purchase one
one-hundredth of a share of Series A Junior Participating Preferred Stock of the
Company. The Debt Securities, the Preferred Stock and the Common Stock and
related rights are collectively referred to herein as the "Securities." The
Securities are to be sold from time to time as set forth in the Registration
Statement, the Prospectus contained therein (the "Prospectus") and the
supplements to the Prospectus (the "Prospectus Supplements").
The Debt Securities are to be issued under an indenture, the form of
which has been filed as an exhibit to the Registration Statement (the
"Indenture"), to be entered into between the Company and Norwest Bank Minnesota,
National Association, as trustee. The Securities may be offered and sold
pursuant to one or more underwriting agreements (each, together with any related
schedule of terms, an "Underwriting Agreement") between the Company and the
underwriters named therein in substantially the form to be filed as exhibits to,
or incorporated by reference in, the Registration Statement, or as otherwise
provided pursuant to the Registration Statement.
In this regard, we have reviewed the Registration Statement and the
exhibits thereto and have examined such other documents and made such
investigation as we have deemed necessary in order to enable us to render the
opinions set forth below. In rendering such opinions, we have assumed that (i)
the Registration Statement will have become effective under the Act and the
Indenture will have been qualified under the Trust Indenture Act of 1939, as
amended, (ii) a Prospectus Supplement relating to the Securities to be offered
and sold as contemplated by the Registration Statement will be prepared,
delivered and filed as contemplated by the Act, (iii) the Indenture in
substantially the form filed as an exhibit to the Registration Statement shall
have been authorized, executed and delivered by the Company and the trustee
named therein, (iv) the Indenture will represent the valid and binding
obligation of the trustee, (v) each Underwriting Agreement shall have been
executed and delivered in substantially the respective form filed as an exhibit
to, or incorporated by
<PAGE>
reference in, the Registration Statement, and (vi) each Underwriting Agreement
shall have been authorized, executed and delivered by or on behalf of the
underwriters named therein and will represent a valid and binding obligation of
each such underwriter.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the laws of
the State of Delaware.
2. The Debt Securities will be valid and binding obligations of
the Company, enforceable in accordance with their terms (except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles and except that a
claim in respect of any Debt Securities denominated other than in U.S. dollars
may be converted into U.S. dollars at a rate of exchange prevailing at a date
determined by applicable law), at such time as: (a) the board of directors of
the Company or a duly authorized committee thereof (the "Board of Directors")
shall have established by resolution, not inconsistent with the Indenture, a
series in which such Debt Securities are to be issued and the terms of such Debt
Securities, and such series and terms shall have been set forth in an officers'
certificate or established in a supplemental indenture in accordance with the
requirements of the Indenture; and (b) the issuance and sale of such Debt
Securities shall have been duly authorized by the Board of Directors, and such
Debt Securities shall have been duly executed, authenticated, issued, sold and
delivered pursuant to the provisions of the Indenture and, if applicable, in
accordance with a duly authorized, completed and executed Underwriting
Agreement, as contemplated in the Registration Statement and the related
Prospectus Supplement, against payment of the agreed consideration therefor.
3. The shares of Preferred Stock covered by the Registration
Statement will be duly authorized, legally issued, fully paid and non-assessable
at such time as: (a) the Board of Directors shall have established by resolution
a series in which shares of Preferred Stock are to be issued and the terms of
such series of Preferred Stock in accordance with the Delaware General
Corporation Law and the Company's Restated Certificate of Incorporation, and an
amendment to the Company's Restated Certificate of Incorporation setting forth
such terms shall have been filed with the Secretary of State of Delaware; and
(b) such shares of Preferred Stock are issued and sold pursuant to resolutions
of the Board of Directors and, if applicable, in accordance with a duly
authorized, completed and executed Underwriting Agreement, as contemplated in
the Registration Statement and the related Prospectus Supplement, against
payment of the consideration fixed therefor by the Board of Directors.
4. The shares of Common Stock covered by the Registration Statement
will be duly authorized, legally issued, fully paid and non-assessable, and the
related rights to purchase shares of Series A Junior Participating Preferred
Stock will be entitled to the benefits of the amended Rights Agreement
incorporated by reference as an exhibit to the Registration Statement, at such
time as such shares of Common Stock and the related rights are duly issued and
sold pursuant to resolutions of the Board of Directors and, if applicable, in
accordance with a duly authorized, completed and executed Underwriting
Agreement, as contemplated in the Registration Statement and the related
Prospectus Supplement, against payment of the consideration fixed therefor by
the Board of Directors.
Page 2
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Opinions" in the Registration Statement, the Prospectus, any Prospectus
Supplement, and in any amendment or supplement thereto. In giving such consent,
we do not believe that we are "experts" within the meaning of such term used in
the Act or the rules or regulations of the Securities and Exchange Commission
issued thereunder with respect to any part of the Registration Statement,
including this opinion as an exhibit or otherwise.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Robert J. Regan
----------------------------
Robert J. Regan
Page 3
<PAGE>
Exhibit 12.1
ABC-NACO INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(dollar amounts in thousands)
<TABLE>
<CAPTION>
Fiscal Year Ended July 31,(a)
---------------------------------------------
1999 1998 1997 1996 1995
-------- ------- -------- ------- -------
<S> <C> <C> <C> <C> <C>
FIXED CHARGES:
Interest expense $17,782 $13,862 $12,620 $ 9,526 $ 5,624
Capitalized interest 2,400 3,900 200 -- --
Interest portion of rent expense 2,784 2,264 1,798 1,449 1,169
------ ------ ------ ------ ------
Total Fixed Charges 22,946 20,026 14,618 10,975 6,793
EARNINGS:
Income (loss) before income taxes,
cumulative effect of accounting
change and extraordinary items (5,024) 23,083 10,163 14,723 28,551
Equity income (loss) of
unconsolidated joint ventures 66 (1,616) (1,041) 144 (393)
Plus:
Fixed charges 22,946 20,026 14,618 10,975 6,793
Amortization of capitalized interest 630 400 -- -- --
Distributed income of equity investees -- 904 -- -- --
Less:
Capitalized interest (2,400) (3,900) (200) -- --
------- ------- ------- ------- -------
Total Earnings $16,218 $38,897 $23,540 $26,842 $34,951
======= ======= ======= ======= =======
RATIO OF EARNINGS TO FIXED
CHARGES(b) 0.71(c) 1.94 1.61 2.35 5.15
======= ======= ======= ======= =======
</TABLE>
- ----------------------
(a) We recently changed our fiscal year-end to December 31 from July 31, and on
February 19, 1999, we merged with NACO, Inc. ("NACO"). Prior to our merger
with NACO, NACO's fiscal year-end was the Sunday closest to March 31. As
permitted under Regulation S-X promulgated by the SEC, our year-end and
NACO's year end have not been conformed for periods prior to our most
recent fiscal year ended July 31, 1999. The results of NACO's operations
for the twelve months ended June 28, 1998, March 30, 1997, March 31, 1996,
and April 2, 1995 are combined with our results of operations for the
twelve months ended July 31, 1998, 1997, 1996, and 1995, respectively.
(b) ABC-NACO's earnings were insufficient to cover total fixed charges in
the fiscal year ended July 31, 1999. The coverage deficiency in that
fiscal year was $6,728,000.
(c) The ratio for the fiscal year ended July 31, 1999 would be 1.66 after
excluding merger and other restructuring charges from the calculation of
earnings.
<PAGE>
Exhibit 23.1
------------
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 2, 1999
included in ABC-NACO Inc.'s Form 10-K for the year ended July 31, 1999 and to
all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Chicago, Illinois
October 20, 1999
<PAGE>
Exhibit 24.1
------------
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or an officer of ABC-NACO Inc. (the
"Company"), does hereby constitute and appoint Joseph A. Seher and J. P.
Singsank, and each of them, as his true and lawful attorney-in-fact and agent,
with full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign the Company's Registration
Statement on Form S-3 and any and all amendments thereto (including post-
effective amendments and registration statements filed pursuant to Rule 462
under the Securities Act of 1933 and otherwise), and to file the same, with
exhibits and schedules thereto, and other documents therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents the 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 attorneys-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 this 23 day of September,
1999.
/s/ Donald W. Grinter
--------------------------
Donald W. Grinter
<PAGE>
Exhibit 24.2
------------
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or an officer of ABC-NACO Inc. (the
"Company"), does hereby constitute and appoint Joseph A. Seher and J. P.
Singsank, and each of them, as his true and lawful attorney-in-fact and agent,
with full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign the Company's Registration
Statement on Form S-3 and any and all amendments thereto (including post-
effective amendments and registration statements filed pursuant to Rule 462
under the Securities Act of 1933 and otherwise), and to file the same, with
exhibits and schedules thereto, and other documents therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents the 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 attorneys-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 this 20 day of October,
1999.
/s/ Richard A. Drexler
----------------------------
Richard A. Drexler
<PAGE>
Exhibit 24.3
------------
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or an officer of ABC-NACO Inc. (the
"Company"), does hereby constitute and appoint Joseph A. Seher and J. P.
Singsank, and each of them, as his true and lawful attorney-in-fact and agent,
with full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign the Company's Registration
Statement on Form S-3 and any and all amendments thereto (including post-
effective amendments and registration statements filed pursuant to Rule 462
under the Securities Act of 1933 and otherwise), and to file the same, with
exhibits and schedules thereto, and other documents therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents the 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 attorneys-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 this 23 day of September,
1999.
/s/ Daniel W. Duval
-------------------------
Daniel W. Duval
<PAGE>
Exhibit 24.4
------------
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or an officer of ABC-NACO Inc. (the
"Company"), does hereby constitute and appoint Joseph A. Seher and J. P.
Singsank, and each of them, as his true and lawful attorney-in-fact and agent,
with full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign the Company's Registration
Statement on Form S-3 and any and all amendments thereto (including post-
effective amendments and registration statements filed pursuant to Rule 462
under the Securities Act of 1933 and otherwise), and to file the same, with
exhibits and schedules thereto, and other documents therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents the 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 attorneys-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 this 23 day of September,
1999.
/s/ Jean-Pierre M. Ergas
----------------------------
Jean-Pierre M. Ergas
<PAGE>
Exhibit 24.5
------------
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or an officer of ABC-NACO Inc. (the
"Company"), does hereby constitute and appoint Joseph A. Seher and J. P.
Singsank, and each of them, as his true and lawful attorney-in-fact and agent,
with full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign the Company's Registration
Statement on Form S-3 and any and all amendments thereto (including post-
effective amendments and registration statements filed pursuant to Rule 462
under the Securities Act of 1933 and otherwise), and to file the same, with
exhibits and schedules thereto, and other documents therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents the 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 attorneys-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 this 23 day of September,
1999.
/s/ James E. Martin
------------------------
James E. Martin
<PAGE>
Exhibit 24.6
------------
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or an officer of ABC-NACO Inc. (the
"Company"), does hereby constitute and appoint Joseph A. Seher and J. P.
Singsank, and each of them, as his true and lawful attorney-in-fact and agent,
with full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign the Company's Registration
Statement on Form S-3 and any and all amendments thereto (including post-
effective amendments and registration statements filed pursuant to Rule 462
under the Securities Act of 1933 and otherwise), and to file the same, with
exhibits and schedules thereto, and other documents therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents the 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 attorneys-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 this 23 day of September,
1999.
/s/ George W. Peck IV
--------------------------
George W. Peck IV
<PAGE>
Exhibit 24.7
------------
POWER OF ATTORNEY
-----------------
The undersigned, as a director and/or an officer of ABC-NACO Inc. (the
"Company"), does hereby constitute and appoint Joseph A. Seher and J. P.
Singsank, and each of them, as his true and lawful attorney-in-fact and agent,
with full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign the Company's Registration
Statement on Form S-3 and any and all amendments thereto (including post-
effective amendments and registration statements filed pursuant to Rule 462
under the Securities Act of 1933 and otherwise), and to file the same, with
exhibits and schedules thereto, and other documents therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents the 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 attorneys-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 this 23 day of September,
1999.
/s/ Willard H. Thompson
----------------------------
Willard H. Thompson
<PAGE>
EXHIBIT 25.1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
_____________________________
X CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
- --- SECTION 305(b) (2)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A U.S. National Banking Association 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
Stanley S. Stroup, General Counsel
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(612) 667-1234
(Agent for Service)
-----------------------------
ABC-NACO INC.
(Exact name of obligor as specified in its charter)
Delaware 36-3498749
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2001 Butterfield Road
Suite 502
Downers Grove, Illinois 60515
(Address of principal executive offices) (Zip code)
_____________________________
Debt Securities
(Title of the 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
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
The Board of Governors of the Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is
not in default as provided under Item 13.
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of this
Statement of Eligibility. Norwest Bank incorporates
by reference into this Form T-1 the exhibits
attached hereto.
Exhibit 1. a. A copy of the Articles of Association of the
trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority of the
trustee to commence business issued June 28, 1872,
by the Comptroller of the Currency to The
Northwestern National Bank of Minneapolis.*
b. A copy of the certificate of the Comptroller of the
Currency dated January 2, 1934, approving the
consolidation of The Northwestern National Bank of
Minneapolis and The Minnesota Loan and Trust
Company of Minneapolis, with the surviving entity
being titled Northwestern National Bank and Trust
Company of Minneapolis.*
c. A copy of the certificate of the Acting Comptroller
of the
<PAGE>
Currency dated January 12, 1943, as to change of
corporate title of Northwestern National Bank and
Trust Company of Minneapolis to Northwestern
National Bank of Minneapolis.*
d. A copy of the letter dated May 12, 1983 from the
Regional Counsel, Comptroller of the Currency,
acknowledging receipt of notice of name change
effective May 1, 1983 from Northwestern National
Bank of Minneapolis to Norwest Bank Minneapolis,
National Association.*
e. A copy of the letter dated January 4, 1988 from the
Administrator of National Banks for the Comptroller
of the Currency certifying approval of
consolidation and merger effective January 1, 1988
of Norwest Bank Minneapolis, National Association
with various other banks under the title of
"Norwest Bank Minnesota, National Association."*
Exhibit 3. A copy of the authorization of the trustee to exercise
corporate trust powers issued January 2, 1934, by the
Federal Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b) of
the Act.
Exhibit 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.**
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
<PAGE>
* Incorporated by reference to exhibit number 25 filed with
registration statement number 33-66026.
** Incorporated by reference to exhibit number 25 filed with
registration statement number 333-84849.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Norwest Bank Minnesota, 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
Minneapolis and State of Minnesota on the 18th day of October 1999.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Jane Y. Schweiger
-----------------------
Jane Y. Schweiger
Corporate Trust Officer
<PAGE>
EXHIBIT 6
October 18, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities
authorized to make such examination may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Jane Y. Schweiger
-----------------------
Jane Y. Schweiger
Corporate Trust Officer
