<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Sequa Corporation
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(Exact name of registrant as specified in its charter)
Delaware 13-1885030
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
200 Park Avenue, 44th Floor, New York, New York 10166
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
9% Senior Notes due 2009 New York Stock Exchange
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If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective
pursuant to General Instruction A.(c), check the following box.
[ x ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective
pursuant to General Instruction A.(d), check the following box.
[ ]
Securities Act registration statement file number to which this
form relates:
__________________________________________________ (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
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Item 1. Description of Registrant's Securities to Be Registered.
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The title of the securities registered hereby is 9% Senior
Notes Due 2009 (the "Notes"). The description of such securities
is hereby incorporated by reference to the material set forth under
the captions (i) "Description of Notes" in the Prospectus
Supplement dated July 26, 1999 ("Prospectus Supplement") to the
Prospectus dated January 22, 1999 ("Prospectus") and
(ii)"Description of Debt Securities " in the Prospectus which
constitutes a part of the Registration Statement on Form S-3, File
No. 333-66035, filed under the Securities Act of 1933, as amended
(the "Act"). The Prospectus and Prospectus Supplement were filed
with the Commission via EDGAR pursuant to Rule 424(b) under the Act
on July 28, 1999 and are hereby incorporated by reference.
Item 2. Exhibits
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1. Indenture, dated as of July 29, 1999, between Sequa Corporation
and Harris Trust Company of New York (filed herewith).
2. Securities Resolution No. 1 of the Registrant, dated as of July
29, 1999, which establishes the terms of the Notes (filed
herewith).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
SEQUA CORPORATION
/s/ Stuart Z. Krinsly
Date: By:---------------------------
Name: Stuart Z. Krinsly
Title: Senior Executive Vice
President and General Counsel
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EXHIBIT INDEX
Number Description
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1 Indenture, dated as of July 29, 1999, between Sequa
Corporation and Harris Trust Company of New York (filed
herewith).
2 Securities Resolution No. 1 of the Registrant, dated as of
July 29, 1999, which establishes the terms of the Notes
(filed herewith).
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SEQUA CORPORATION
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DEBT SECURITIES
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INDENTURE
Dated as of July 29, 1999
Harris Trust Company of New York, Trustee
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PARTIAL CROSS-REFERENCE TABLE
INDENTURE SECTION TIA SECTION
2.05 317(b)
2.06 312(a)
2.11 316(a)
(last sentence)
4.05 314(a)(4)
6.03 317(a)(1)
6.04 316(a)(1)(B)
6.06 316(a)(1)(A)
6.07 317(a)(1)
7.01 315(a), 315(d)
7.04 315(b)
7.05 313(a)
7.07 310(a), 310(b)
7.09 310(a)(2)
8.02 310(a), 310(b)
9.04 316(c)
10.01 318(a)
10.02 313(c)
10.03 314(c)(1),
314(c)(2)
10.04 314(e)
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TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS 1
SECTION 1.01. Definitions. 1
SECTION 1.02. Other Definitions. 4
SECTION 1.03. Rules of Construction. 4
ARTICLE 2. THE SECURITIES 5
SECTION 2.01. Issuable in Series. 5
SECTION 2.02. Execution and Authentication. 7
SECTION 2.03. Agents. 8
SECTION 2.04. Bearer Securities. 8
SECTION 2.05. Paying Agent to Hold Money in Trust. 9
SECTION 2.06. Securityholder Lists. 9
SECTION 2.07. Transfer and Exchange. 10
SECTION 2.08. Replacement Securities. 11
SECTION 2.09. Outstanding Securities. 11
SECTION 2.10. Discounted Debt Securities. 11
SECTION 2.11. Treasury Securities. 12
SECTION 2.12. Global Securities. 12
SECTION 2.13. Temporary Securities. 13
SECTION 2.14. Cancellation. 13
SECTION 2.15. Defaulted Interest. 13
ARTICLE 3. REDEMPTION 14
SECTION 3.01. Notices to Trustee. 14
SECTION 3.02. Selection of Securities to Be Redeemed. 14
SECTION 3.03. Notice of Redemption. 14
SECTION 3.04. Effect of Notice of Redemption. 15
SECTION 3.05. Payment of Redemption Price. 16
SECTION 3.06. Securities Redeemed in Part. 16
ARTICLE 4. COVENANTS 17
SECTION 4.01. Payment of Securities. 17
SECTION 4.02. Overdue Interest. 17
SECTION 4.03. Compliance Certificate. 17
SECTION 4.04. SEC Reports. 17
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Page
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ARTICLE 5. SUCCESSORS 18
SECTION 5.01. When Company May Merge, etc. 18
ARTICLE 6. DEFAULTS AND REMEDIES 19
SECTION 6.01. Events of Default. 19
SECTION 6.02. Acceleration. 20
SECTION 6.03. Other Remedies. 21
SECTION 6.04. Waiver of Past Defaults. 21
SECTION 6.05. Control by Majority. 21
SECTION 6.06. Limitation on Suits. 22
SECTION 6.07. Collection Suit by Trustee. 22
SECTION 6.08. Priorities. 22
ARTICLE 7. TRUSTEE 23
SECTION 7.01. Rights of Trustee. 23
SECTION 7.02. Individual Rights of Trustee. 24
SECTION 7.03. Trustee's Disclaimer. 24
SECTION 7.04. Notice of Defaults. 24
SECTION 7.05. Reports by Trustee to Holders. 25
SECTION 7.06. Compensation and Indemnity. 25
SECTION 7.07. Replacement of Trustee. 26
SECTION 7.08. Successor Trustee by Merger, etc. 27
SECTION 7.09. Trustee's Capital and Surplus. 27
ARTICLE 8. DISCHARGE OF INDENTURE 27
SECTION 8.01. Defeasance. 27
SECTION 8.02. Conditions to Defeasance. 28
SECTION 8.03. Application of Trust Money. 29
SECTION 8.04. Repayment to Company. 29
ARTICLE 9. AMENDMENTS 30
SECTION 9.01. Without Consent of Holders. 30
SECTION 9.02. With Consent of Holders. 30
SECTION 9.03. Compliance with Trust Indenture Act. 31
SECTION 9.04. Effect of Consents. 31
SECTION 9.05. Notation on or Exchange of Securities. 32
SECTION 9.06. Trustee Protected. 32
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Page
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ARTICLE 10. MISCELLANEOUS 32
SECTION 10.01. Trust Indenture Act. 32
SECTION 10.02. Notices. 33
SECTION 10.03. Certificate and Opinion as to Conditions
Precedent. 34
SECTION 10.04. Statements Required in Certificate
or Opinion. 34
SECTION 10.05. Rules by Company and Agents. 35
SECTION 10.06. No Lien Created, etc. 35
SECTION 10.07. Legal Holidays. 35
SECTION 10.08. No Recourse Against Others. 35
SECTION 10.09. Duplicate Originals. 35
SECTION 10.10. Governing Law. 36
<PAGE>
INDENTURE dated as of July 29, 1999 between SEQUA
CORPORATION, a corporation organized and existing under the laws of
the State of Delaware (hereinafter called the "Company"), and
HARRIS TRUST COMPANY OF NEW YORK, a New York banking corporation,
as Trustee ("Trustee").
Each party agrees as follows for the benefit of the
Holders of the Company's debt securities issued under this
Indenture:
ARTICLE 1. DEFINITIONS
SECTION 1.01. Definitions.
"AFFILIATE" means any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company.
"AGENT" means any Registrar or Paying Agent.
"AUTHORIZED NEWSPAPER" means a newspaper that is:
(1) printed in the English language or in an official
language of the country of publication;
(2) customarily published on each business day in the
place of publication; and
(3) of general circulation in the relevant place or in
the financial community of such place.
Whenever successive publications in an Authorized
Newspaper are required, they may be made on the same or different
business days and in the same or different Authorized Newspapers.
"BEARER SECURITY" means a Security payable to bearer.
"BOARD" means the Board of Directors of the Company or
any authorized committee of the Board.
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of any person and all warrants or options to acquire such
capital stock.
"COMPANY" means the party named as such above until a
successor replaces it and thereafter means the successor.
"CORPORATE TRUST OFFICE" shall mean the principal office
of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of the
execution of this Indenture is located at Wall Street Plaza, 88
Pine Street, New York, New York 10005, Attention: Corporate Trust
Department, or at any other time at such other address as the
<PAGE>
Trustee may designate from time to time by notice to the Holders.
"coupon" means an interest coupon for a Bearer Security.
"DEFAULT" means any event which is, or after notice or
passage of time would be, an Event of Default (as defined below).
"DISCOUNTED DEBT SECURITY" means a Security where the
amount of principal due upon acceleration is less than the stated
principal amount.
"HOLDER" or "SECURITYHOLDER" means the person in whose
name a Registered Security is registered and the bearer of a Bearer
Security or coupon.
"INDENTURE" means this Indenture and any Securities
Resolution as amended from time to time.
"LIEN" means mortgage, pledge, security interest or other
lien.
"OFFICER" means the Chairman, any Vice-Chairman, the
President, any Executive or Senior Vice President, any Vice-
President, the Treasurer or any Assistant Treasurer, the Secretary
or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion from legal
counsel who is acceptable to the Trustee, and delivered to the
Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"principal" of a debt security means the principal of the
security plus the premium, if and when applicable, on the security.
"REGISTERED SECURITY" means a Security registered as to
principal and interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the debt securities issued under this
Indenture.
"SECURITIES RESOLUTION" means a resolution authorizing a
series adopted by the Board or by a committee of Officers or an
Officer pursuant to Board delegation.
<PAGE>
"series" means a series of Securities or the Securities
of the series.
"SUBSIDIARY" of any person means (i) a corporation more
than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by such person or by one or more other
Subsidiaries of such person or by such person and one or more
Subsidiaries thereof or (ii) any other person (other than a
corporation) in which such person, or one or more Subsidiaries of
such person or such person and one or more Subsidiaries thereof,
directly or indirectly, has at least a majority ownership and power
to direct the policy, management and affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
77aaa-77bbbb), as amended.
"TRADING DAY" means each day on which the securities
exchange or quotation system which is used to determine the Market
Price is open for trading or quotation.
"TRUSTEE" means the party named as such above until a
successor replaces it and thereafter means the successor.
"TRUST OFFICER" when used with respect to the Trustee,
means any officer assigned to the Corporate Trust Office, including
any managing director, vice president, assistant vice president,
assistant treasurer, assistant secretary or any other officer of
the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Indenture, and also,
with respect to a particular matter, any other officer, to whom
such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"UNITED STATES" means the United States of America, its
territories and possessions and other areas subject to its
jurisdiction.
SECTION 1.02. Other Definitions.
TERM DEFINED IN SECTION
"ACTUAL KNOWLEDGE" 7.01
"BANKRUPTCY LAW" 6.01
"CONDITIONAL REDEMPTION" 3.04
"CUSTODIAN" 6.01
"LEGAL HOLIDAY" 10.06
"PAYING AGENT" 2.03
"REGISTRAR" 2.03
"TREASURY REGULATIONS" 2.04
"U.S. GOVERNMENT OBLIGATIONS" 8.02
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SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally
accepted accounting principles in the United
States;
(3) generally accepted accounting principles are those
applicable from time to time;
(4) all 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 have
the meanings assigned to them by such definitions;
(5) "OR" is not exclusive; and
(6) words in the singular include the plural, and in
the plural include the singular.
ARTICLE 2. THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities
that may be issued under this Indenture is unlimited. The
Securities may be issued from time to time in one or more series.
Each series shall be created by a Securities Resolution that
establishes the terms of the series, which may include the
following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate, if any, or method of calculating
the interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Registered
Securities;
(6) the dates when principal and interest are payable;
<PAGE>
(7) the manner of paying principal and interest;
(8) the places where principal and interest are
payable;
(9) the Registrar and Paying Agent;
(10) the terms of any mandatory or optional redemption
by the Company or any third party including any
sinking fund;
(11) the terms of any redemption at the option of
Holders or put by the Holders;
(12) the denominations in which Securities are issuable;
(13) whether Securities will be issuable as Registered
Securities, Bearer Securities or uncertificated
Securities;
(14) whether and upon what terms Registered Securities,
Bearer Securities and uncertificated Securities may
be exchanged;
(15) whether any Securities will be represented by a
Security in global form;
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite currency)
in which principal or interest may be paid;
(19) if payments of principal or interest may be made in
a currency other than that in which Securities are
denominated, the manner for determining such
payments;
(20) if amounts of principal or interest may be
determined by reference to an index, formula or
other method, the manner for determining such
amounts;
(21) provisions for electronic issuance of Securities or
for Securities in uncertificated form;
(22) the portion of principal payable upon acceleration
of a Discounted Debt Security;
(23) whether any Events of Default or covenants in
addition to or in lieu of those set forth in this
Indenture have been added;
<PAGE>
(24) whether and upon what terms Securities may be
defeased;
(25) the forms of the Securities or any coupon, which
may be in the form of Exhibit A or B;
(26) any terms that may be required by or advisable
under U.S. laws; and
(27) any other terms not inconsistent with this
Indenture.
All Securities of one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened
for issuances of additional Securities of such series.
The creation and issuance of a series and the
authentication and delivery thereof are not subject to any
conditions precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or
facsimile signature. The Company's seal shall be reproduced on the
Securities. An Officer shall sign any coupons by facsimile
signature.
If an Officer whose signature is on a Security or its
coupons no longer holds that office at the time the Security is
authenticated or delivered, the Security and coupons shall
nevertheless be valid.
A Security and its coupons shall not be valid until the
Security is authenticated by the manual signature of the Trustee.
The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated the date of
its original issuance or as provided in the Securities Resolution.
Securities may have notations, legends or endorsements
required by law, stock exchange rule, agreement or usage.
In the event Securities are issued in electronic or other
uncertificated form, such Securities may be validly issued without
the signatures or seal contemplated by this Section 2.02.
<PAGE>
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 2.03. Agents.
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where Securities may
be presented for payment ("Paying Agent"). The Registrar shall
keep a register of the Securities and of their transfer and
exchange.
The Company may appoint more than one Registrar or Paying
Agent for a series. T he Company shall notify the Trustee of the
name and address of any Agent not a party to this Indenture. If
the Company does not appoint or maintain a Registrar or Paying
Agent for a series, the Trustee shall act as such.
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or
exchanges of and payments on Bearer Securities. Therefore, except
as provided below:
(1) Bearer Securities will be offered, sold or
delivered only outside the United States and will
be delivered in connection with its original
issuance only upon presentation of a certificate in
a form prescribed by the Company to comply with
U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange
for Registered Securities.
(3) All payments of principal and interest (including
original issue discount) on Bearer Securities will
be made outside the United States by a Paying Agent
located outside the United States unless the
Company determines that:
(A) such payments may not be made by such Paying Agent
because the payments are illegal or prevented by
exchange controls as described in Treasury
Regulation 1.163-5(c)(2)(v); and
(B) making the payments in the United States would not
have an adverse tax effect on the Company.
<PAGE>
If there is a change in the relevant provisions of U.S.
laws or Treasury Regulations or the judicial or administrative
interpretation thereof, a restriction set forth in paragraph (1),
(2) or (3) above will not apply to a series if the Company
determines that the relevant provisions no longer apply to the
series or that failure to comply with the relevant provisions would
not have an adverse tax effect on the Company or on Securityholders
or cause the series to be treated as "registration-required"
obligations under U.S. law.
The Company shall notify the Trustee of any
determinations by the Company under this Section.
"TREASURY REGULATIONS" means regulations of the U.S.
Treasury Department under the Internal Revenue Code of 1986, as
amended.
SECTION 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series
other than the Trustee to agree in writing that the Paying Agent
will hold in trust for the benefit of the persons entitled thereto
all money held by the Paying Agent for the payment of principal of
or interest on the series, 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 so 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 shall have no further liability for the money.
If the Company or an Affiliate acts as Paying Agent for
a series, it shall segregate and hold as a separate trust fund all
money held by it as Paying Agent for the series.
SECTION 2.06. 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. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee semiannually
and at such other times as the Trustee may request a list in such
form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders of Registered Securities and
Holders of Bearer Securities whose names are on the list referred
to below.
The Registrar shall keep a list of the names and
addresses of Holders of Bearer Securities who file a request to be
included on such list. A request will remain in effect for two
years, and successive requests may be made.
<PAGE>
Whenever the Company or the Trustee is required to mail
a notice to all Holders of Registered Securities of a series, it
also shall mail the notice to Holders of Bearer Securities of the
series whose names are on the list.
Whenever the Company is required to publish a notice to
all Holders of Bearer Securities of a series, it also shall mail
the notice to such of them whose names are on the list.
SECTION 2.07. Transfer and Exchange.
Where Registered Securities of a series are presented to
the Registrar with a request to register a transfer or to exchange
them for an equal principal amount of Registered Securities of
other denominations 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 transfer and
exchanges, the Trustee shall authenticate Registered Securities and
Bearer Securities at the Registrar's request.
The Registrar may require a Holder to pay a sum
sufficient to cover any taxes imposed on a transfer or exchange.
If a series provides for Registered and Bearer Securities
and for their exchange, Bearer Securities may be exchanged for
Registered Securities and Registered Securities may be exchanged
for Bearer Securities as provided in the Securities or the
Securities Resolution if the requirements of the Registrar for such
transactions are met and in the case of the exchange of registered
securities for bearer securities if Section 2.04 permits the
exchange.
The Company may elect not to exchange or register the
transfer of any Security for a period of 15 days before a selection
of Securities to be redeemed.
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it has
been lost, destroyed or wrongfully taken, then, in the absence of
notice to the Company or the Trustee that the Security or coupon
has been acquired by a protected purchaser, the Company shall issue
a replacement Security or coupon if the Company and the Trustee
receive:
(1) evidence satisfactory to them of the loss,
destruction or taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses
and any taxes for replacing the Security or coupon.
<PAGE>
A replacement Security shall have coupons attached corresponding to
those, if any, on the replaced Security.
Every replacement Security or coupon is an additional
obligation of the Company.
SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the
Securities authenticated by the Trustee except for those cancelled
by it, those delivered to it for cancellation, and those described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it
ceases to be outstanding unless the Trustee and the Company receive
proof satisfactory to them that the replaced Security is held by a
protected purchaser.
If Securities are considered paid under Section 4.01,
they 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.
SECTION 2.10. Discounted Debt Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, the principal amount of a Discounted Debt
Security shall be the amount of principal that would be due as of
the date of such determination if payment of the Security were
accelerated on that date.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, Securities 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
direction, waiver or consent, only Securities which the Trustee
actually knows are so owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Securities Resolution so provides, the Company may
issue some or all of the Securities of a series in temporary or
permanent global form. A global Security may be in registered
form, in bearer form with or without coupons or in uncertificated
form. A global Security shall represent that amount of Securities
of a series as specified in the global Security or as endorsed
thereon from time to time. At the Company's request, the Trustee
shall endorse a global Security to reflect the amount of any
increase or decrease in the Securities represented thereby.
<PAGE>
The Company may issue a global Security only to a
depository designated by the Company. A depository may transfer a
global Security only as a whole to its nominee or to a successor
depository.
The Securities Resolution may establish, among other
things, the manner of paying principal and interest on a global
Security and whether and upon what terms a beneficial owner of an
interest in a global Security may exchange such interest for
definitive Securities.
The Company, an Affiliate, the Trustee and any Agent
shall not be responsible for any acts or omissions of a depository,
for any depository records of beneficial ownership interests or for
any transactions between the depository and beneficial owners.
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for
delivery, the Company may use temporary Securities. Temporary
Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers
appropriate for temporary Securities. Temporary Securities may be
in global form. Temporary Bearer Securities may have one or more
coupons or no coupons. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities.
SECTION 2.14. 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 and coupons surrendered to
them for payment, exchange or registration of transfer. The
Trustee shall cancel all Securities or coupons surrendered for
payment, registration of transfer, exchange or cancellation. The
Trustee also will cancel all Bearer Securities and unmatured
coupons unless the Company requests the Trustee to hold the same
for redelivery. Any Bearer Securities so held shall be considered
delivered for cancellation under Section 2.09. The Trustee shall
dispose of cancelled Securities and coupons in accordance with its
record retention policies in effect at the time or shall deliver
them to the Company upon the written request of the Company.
Unless the Securities Resolution otherwise provides, the
Company may not issue new Securities to replace Securities that the
Company has paid or that the Company has delivered to the Trustee
for cancellation.
<PAGE>
SECTION 2.15. Defaulted Interest.
If the Company defaults in a payment of interest on
Registered Securities, it need not pay the defaulted interest to
Holders on the regular record date. The Company may fix a special
record date for determining Holders entitled to receive defaulted
interest, or the Company may pay defaulted interest in any other
lawful manner. At least 15 days before the special record date,
the Company shall give the Holders of Registered Securities a
notice that states the record date, payment date and amount of
interest to be paid.
ARTICLE 3. REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before
maturity shall be redeemable in accordance with their terms and,
unless the Securities Resolution otherwise provides, in accordance
with this Article.
In the case of a redemption by the Company, the Company
shall notify the Trustee of the redemption date and the principal
amount of Securities to be redeemed. The Company shall notify the
Trustee at least 35 days before the redemption date unless a
shorter notice is satisfactory to the Trustee.
If the Company is required to redeem Securities, it may
reduce the principal amount of Securities required to be redeemed
to the extent that it is permitted a credit against such redemption
requirement by the terms of the Securities Resolution and notifies
the Trustee of the amount of such credit and the basis for it. If
the reduction is based on a credit for acquired or redeemed
Securities that the Company has not previously delivered to the
Trustee for cancellation, the Company shall deliver the Securities
at the same time as the notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select the Securities to be redeemed
from Securities outstanding not previously called for redemption by
a method the Trustee considers 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 having
denominations larger than the minimum denomination for the series.
Securities and portions thereof selected for redemption shall be in
amounts equal to the minimum denomination for the series or an
integral multiple thereof. Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of
Securities called for redemption.
<PAGE>
SECTION 3.03. Notice of Redemption.
At least 30 days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each
Holder of Registered Securities whose Securities are to be
redeemed.
If Bearer Securities are to be redeemed, the Company
shall publish a notice of redemption in an Authorized Newspaper as
provided in the Securities.
A notice shall identify the Securities of the series to
be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together
with all coupons, if any, maturing after the
redemption date, must be surrendered to the Paying
Agent to collect the redemption price;
(5) that interest on Securities called for redemption
ceases to accrue on and after the redemption date;
(6) whether the redemption by the Company is mandatory
or optional; and
(7) whether the redemption is conditional as provided
in Section 3.04, and if so, the terms of the
conditions, and that, if the conditions are not
satisfied or are not waived by the Company, the
Securities will not be redeemed and such a failure
to redeem will not constitute an Event of Default.
A redemption notice given by publication need not
identify Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Except as provided below, once notice of redemption is
given, Securities called for redemption become due and payable on
the redemption date at the redemption price stated in the notice.
<PAGE>
A notice of redemption may provide that it is subject to
the occurrence of any event before the date fixed for such
redemption as described in such notice ("Conditional Redemption"),
and such notice of Conditional Redemption shall be of no effect
unless all such conditions to the redemption have occurred on or
before such date or have been waived by the Company in its sole
discretion.
SECTION 3.05. Payment 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 on all Securities to be
redeemed on that date.
When the Holder of a Security surrenders it for
redemption in accordance with the redemption notice, the Company
shall pay to the Holder on the redemption date the redemption price
and accrued interest to such date, except that:
(1) the Company will pay any such interest (except
defaulted interest) to Holders on the record date
of Registered Securities if the redemption date
occurs on an interest payment date; and
(2) the Company will pay any such interest to Holders
of coupons that mature on or before the redemption
date upon surrender of such coupons to the Paying
Agent.
Coupons maturing after the redemption date on a called
Security are void absent a payment default on that date.
Nevertheless, if a Holder surrenders for redemption a Bearer
Security missing any such coupons, the Company may deduct the face
amount of such coupons from the redemption price. If thereafter
the Holder surrenders to the Paying Agent the missing coupons, the
Company will return the amount so deducted. The Company may waive
surrender of the missing coupons if it receives an indemnity bond
satisfactory to the Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part,
the Trustee shall authenticate for the Holder and the Company shall
deliver to the Holder a new Security of the same series equal in
principal amount to the unredeemed portion of the Security
surrendered.
<PAGE>
ARTICLE 4. COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a
series in accordance with the terms of the Securities for the
series, any related coupons, and this Indenture. Principal and
interest on a series shall be considered paid on the date due if
the Paying Agent for the series holds on that date money sufficient
to pay all principal and interest then due on the series.
SECTION 4.02. Overdue Interest.
Unless the Securities Resolution otherwise provides, the
Company shall pay interest on overdue principal of a Security of a
series at the rate (or yield to maturity in the case of a
Discounted Debt Security) borne by the series; the Company shall
pay interest on overdue installments of interest at the same rate
or yield to maturity to the extent lawful.
SECTION 4.03. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, a brief
certificate signed by the principal executive officer, principal
financial officer or principal accounting officer of the Company,
as to the signer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture (determined without
regard to any period of grace or requirement of notice provided
herein).
Any other obligor on the Securities shall also deliver to
the Trustee such a certificate as to its compliance with this
Indenture within 120 days after the end of each of its fiscal
years.
The certificates need not comply with Section 10.04.
SECTION 4.04. SEC Reports.
The Company shall file with the Trustee, within 15 days
after the Company is required to file the same with the SEC, copies
of the annual reports and of the information, documents, and other
reports (or such portions of the foregoing as the SEC may
prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934.
Any other obligor on the Securities shall do likewise as
to the above items which it is required to file with the SEC
pursuant to those sections.
<PAGE>
ARTICLE 5 . SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
Unless the Securities Resolution establishing a series
otherwise provides with respect to that series, the Company shall
not consolidate with or merge into, or transfer all or
substantially all of its assets to, any person in any transaction
in which the Company is not the survivor unless:
(1) the person is organized under the laws of the United
States or a State thereof or is organized under the laws
of a foreign jurisdiction and consents to the
jurisdiction of the courts of the United States or a
State thereof;
(2) the person assumes by supplemental indenture all the
obligations of the Company under this Indenture, the
Securities and any coupons; and
(3) immediately after the transaction no Default exists.
The successor shall be substituted for the Company, and
thereafter all obligations of the Company under this Indenture, the
Securities and any coupons shall terminate.
ARTICLE 6. DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Unless the Securities Resolution otherwise provides, an
"EVENT OF DEFAULT" on a series occurs if:
(1) the Company defaults in any payment of interest on any
Securities of the series when the same becomes due and
payable and the Default continues for a period of 60
days;
(2) the Company defaults in the payment of the principal and
premium, if any, of any Securities of the series when the
same becomes due and payable at maturity or upon
redemption, acceleration or otherwise, and such default
shall continue for five or more days;
(3) the Company defaults in the payment or satisfaction of
any sinking fund obligation with respect to any
Securities of the series as required by the Securities
Resolution establishing such series and the Default
continues for a period of 60 days;
<PAGE>
(4) the Company defaults in the performance of any of its
other agreements applicable to the series and the Default
continues for 90 days after the notice specified below;
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian for it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case,
(B) appoints a Custodian for the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect
for 60 days; or
(7) there occurs any other Event of Default provided for in
the series.
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 a similar official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default
until the Trustee or the Holders of at least 33-1/3% in principal
amount of the series notify the Company of the Default and the
Company does not cure the Default within the time specified after
receipt of the notice. The notice must specify the Default, demand
that it be remedied and state that the notice is a "Notice of
Default." If Holders notify the Company of a Default, they shall
notify the Trustee at the same time.
The failure to redeem any Security subject to a
Conditional Redemption is not an Event of Default if any event on
which such redemption is so conditioned does not occur and is not
waived before the scheduled redemption date.
<PAGE>
SECTION 6.02. Acceleration.
If an Event of Default occurs and is continuing on a
series, the Trustee by notice to the Company, or the Holders of at
least 33-1/3% in principal amount of the series by notice to the
Company and the Trustee, may declare the principal of and accrued
interest on all the Securities of the series to be due and payable
immediately. Discounted Debt Securities may provide that the
amount of principal due upon acceleration is less than the stated
principal amount.
The Holders of a majority in principal amount of the
series by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment
or decree and if all existing Events of Default on the series have
been cured or waived except nonpayment of principal or interest
that has become due solely because of the acceleration.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing on a
series, the Trustee may pursue any available remedy to collect
principal or interest then due on the series, to enforce the
performance of any provision applicable to the series, or otherwise
to protect the rights of the Trustee and Holders of the series.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or coupons or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute
a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Unless the Securities Resolution otherwise provides, the
Holders of a majority in principal amount of a series by notice to
the Trustee may waive an existing Default on the series and its
consequences except:
(1) a Default in the payment of the principal of or
interest on the series, or
(2) a Default in respect of a provision that under
Section 9.02 cannot be amended without the consent
of each Securityholder affected.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of a series
may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or of exercising any trust
or power conferred on the Trustee, with respect to the series.
<PAGE>
However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, is unduly prejudicial to the
rights of other Securityholders or if the Trustee shall determine
that the action or direction might involve the Trustee in personal
liability.
SECTION 6.06. Limitation on Suits.
A Securityholder of a series may pursue a remedy with
respect to the series only if:
(1) the Holder gives to the Trustee notice of a
continuing Event of Default on the series;
(2) the Holders of at least 33-1/3% in principal amount
of the series make a request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer
of indemnity; and
(5) during such 60-day period the Holders of a majority
in principal amount of the series do not give the
Trustee a direction inconsistent with such request.
A Securityholder may not use this Indenture to prejudice
the rights of another Securityholder or to obtain a preference or
priority over another Securityholder.
SECTION 6.07. Collection Suit by Trustee.
If an Event of Default in payment of interest, principal
or sinking fund specified in Section 6.01(1), (2) or (3) occurs and
is continuing on a series, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company for
the whole amount of principal and interest remaining unpaid on the
series.
SECTION 6.08. Priorities.
If the Trustee collects any money for a series pursuant
to this Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section
7.06;
Second: to Securityholders of the series for amounts due
and unpaid for principal and interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable for principal and interest, respectively; and
<PAGE>
Third: to the Company.
The Trustee may fix a payment date for any payment to
Securityholders.
ARTICLE 7. TRUSTEE
SECTION 7.01. Rights of Trustee.
(1) The Trustee may rely on 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.
(2) 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 the Certificate or Opinion.
(3) The Trustee may act through agents, attorneys,
custodians and nominees and shall not be
responsible for the misconduct or negligence of any
agent, attorney, custodian or nominee appointed
with due care.
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section
6.05.
(5) The Trustee may refuse to perform any duty or
exercise any right or power which it reasonably
believes may expose it to any loss, liability or
expense unless it receives indemnity satisfactory
to it against such loss, liability or expense.
(6) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may
agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds
except to the extent required by law.
(7) The Trustee shall have no duty with respect to a
Default unless it has actual knowledge of the
Default. As used herein, the term "actual
knowledge" means the actual fact or statement of
knowing, without any duty to make any investigation
with regard thereto.
<PAGE>
(8) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it
believes to be authorized and within its powers.
(9) Any Agent shall have the same rights and be
protected to the same extent as if it were Trustee.
(10) The Trustee shall not be required to give any bond
or surety in respect of the performance of its
powers and duties hereunder.
SECTION 7.02. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities or coupons 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.
SECTION 7.03. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities or any coupons; it
shall not be accountable for the Company's use of the proceeds from
the Securities; it shall not be responsible for any statement in
the Securities or any coupons other than its authentication.
SECTION 7.04. Notice of Defaults.
If a Default occurs and is continuing on a series and if
the Trustee has actual knowledge of such Default, the Trustee shall
mail a notice of the Default within 90 days after it occurs to
Holders of Registered Securities of the series. Except in the case
of a Default in payment on a series, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interest of
Holders of the series. The Trustee shall withhold notice of a
Default described in Section 6.01(4) until at least 90 days after
it occurs.
SECTION 7.05. Reports by Trustee to Holders.
Any report required by TIA ' 313(a) to be mailed to
Securityholders shall be mailed by the Trustee on or before July 15
of each year.
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange
on which any Securities are listed. The Company shall notify the
Trustee when any Securities are listed on a stock exchange.
<PAGE>
SECTION 7.06. Compensation and Indemnity.
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.
The Company shall indemnify the Trustee against any loss
or liability incurred by it. 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.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through
negligence or willful misconduct.
To secure the Company's payment obligations in this
Section, the Trustee shall have a lien prior to the Securities and
any coupons on all money or property held or collected by the
Trustee, except that held in trust to pay principal or interest on
particular securities.
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(5) or (6) occurs, such
expenses and the compensation for such services are intended to
constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive any
termination or discharge of this Indenture (including without
limitation any termination under any Bankruptcy Law) and the
resignation or removal of the Trustee.
SECTION 7.07. 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 by so notifying the Company. The
Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee with the Company's consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA ' 310(a) or '
310(b) or with Section 7.09;
<PAGE>
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a Custodian or other public officer takes charge of
the Trustee or its property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section 6.01(5) or
(6) occurs with respect to the Trustee.
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.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in principal
amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with TIA 310(a) or 310(b)
or with Section 7.09, any Securityholder 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.
Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders
of Registered Securities. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.06.
SECTION 7.08. Successor Trustee by Merger, etc.
If the Trustee consolidates, 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 7.09. Trustee's Capital and Surplus.
The Trustee, or the bank holding company of which the
Trustee is a wholly owned Subsidiary, at all times shall have a
combined capital and surplus of at least $50,000,000 as set forth in
its most recent published report of financial condition.
<PAGE>
ARTICLE 8. DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance with
their terms and, unless the Securities Resolution otherwise
provides, in accordance with this Article.
The Company at any time may terminate as to a series all
of its obligations under this Indenture, the Securities of the
series and any related coupons ("legal defeasance option"). The
Company at any time may terminate as to a series its obligations, if
any, under any restrictive covenants which may be applicable to a
particular series ("covenant defeasance option"). However, in the
case of the legal defeasance option, the Company's obligations in
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.06, 7.07 and 8.04
shall survive until the Securities of the series are no longer
outstanding; thereafter the Company's obligations in Section 7.06
shall survive.
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option, a
series may not be accelerated because of an Event of Default. If
the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to any restrictive covenants which
may be applicable to such series.
The Trustee upon request shall acknowledge in writing the
discharge of those obligations or restrictions that the Company
terminates by defeasance.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal
defeasance option or its covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the
Trustee or another trustee money or U.S. Government
Obligations;
(2) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent
accountants expressing their opinion that the
payments of principal and interest when due on the
deposited U.S. Government Obligations without
reinvestment plus any deposited money without
investment will provide cash at such times and in
such amounts as will be sufficient to pay principal
and interest when due on all the Securities of the
series to maturity or redemption, as the case may
be;
<PAGE>
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any
other agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a
conflicting interest under TIA 310(a) or 310(b) as
to another series;
(6) the Company delivers to the Trustee an Opinion of
Counsel to the effect that Holders of the series
will not recognize income, gain or loss for Federal
income tax purposes as a result of the defeasance;
and
(7) 91 days pass after the deposit is made and during
the 91-day period no Default specified in Section
6.01(5) or (6) occurs that is continuing at the end
of the period.
Before or after a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date in accordance with Article 3.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of
(i) the United States or (ii) an agency or instrumentality of the
United States, the payment of which is unconditionally guaranteed by
the United States, which, in either case, have the full faith and
credit of the United States pledged for payment and which are not
callable at the issuer's option, or certificates representing an
ownership interest in such obligations.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.02. It shall
apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal and interest on Securities of
the defeased series.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over
to the Company upon request any excess money or securities held by
them at any time.
The Trustee and the Paying Agent shall pay to the Company
upon written request any money held by them for the payment of
principal or interest that remains unclaimed for two years. After
payment to the Company, Securityholders entitled to the money must
look to the Company for payment as unsecured general creditors
unless an abandoned property law designates another person.
<PAGE>
ARTICLE 9. AMENDMENTS
SECTION 9.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture, the
Securities or any coupons without the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Section 5.01(2).
(3) to provide that specific provisions of this
Indenture shall not apply to a series not previously
issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more
series; or
(6) to make any change that does not materially
adversely affect the rights of any Securityholder.
SECTION 9.02. With Consent of Holders.
Unless the Securities Resolution otherwise provides, the
Company and the Trustee may amend this Indenture, the Securities and
any coupons with the written consent of the Holders of a majority in
principal amount of the Securities of all series affected by the
amendment voting as one class. However, without the consent of each
Securityholder affected, an amendment under this Section may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment;
(2) reduce the interest on or change the time for
payment of interest on any Security;
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Debt
Security or reduce the amount of principal of any
Discounted Debt Security that would be due upon an
acceleration thereof;
(5) change the currency in which principal or interest
on a Security is payable;
(6) make any change that materially adversely affects
the right to convert any Security; or
<PAGE>
(7) make any change in Section 6.04 or 9.02, except to
increase the amount of Securities whose Holders must
consent to an amendment or waiver or to provide that
other provisions of this Indenture cannot be amended
or waived without the consent of each Securityholder
affected thereby.
An amendment of a provision included solely for the
benefit of one or more series does not affect Securityholders of any
other series.
Securityholders need not consent to the exact text of a
proposed amendment or waiver; it is sufficient if they consent to
the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 9.01 or 9.02 shall be
set forth in a supplemental indenture (except any amendment pursuant
to Section 9.01(4), which may be set forth in a Securities
Resolution) that complies with the TIA.
If a provision of the TIA requires or permits a provision
of this Indenture and the TIA provision is amended, then the
Indenture provision shall be automatically amended to like effect.
SECTION 9.04. Effect of Consents.
An amendment or waiver becomes effective in accordance
with its terms and thereafter binds every Securityholder entitled to
consent to it.
A consent to an amendment or waiver by a Holder of a
Security is a continuing consent by the Holder and every subsequent
Holder of a Security that evidences the same debt as the consenting
Holder's Security. Any Holder or subsequent Holder may revoke the
consent as to his Security if the Trustee receives notice of the
revocation before the amendment or waiver becomes effective.
The Company may fix a record date for the determination
of Holders of Registered Securities entitled to give a consent. The
record date shall not be less than 10 nor more than 60 days prior to
the first written solicitation of Securityholders.
SECTION 9.05. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate
notation about an amendment or waiver on any Security thereafter
authenticated. The Company may issue in exchange for affected
Securities and the Trustee shall authenticate new Securities that
reflect the amendment or waiver.
<PAGE>
SECTION 9.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that
adversely affects its rights. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of
Counsel and an Officers' Certificate each stating that the execution
of any amendment or supplement or waiver authorized pursuant to this
Article is authorized or permitted by this Indenture, and that such
amendment or supplement or waiver constitutes the legal, valid and
binding obligation of the Company.
ARTICLE 10. MISCELLANEOUS
SECTION 10.01. Trust Indenture Act.
The provisions of TIA 310 through 317 that impose duties
on any person (including the provisions automatically deemed
included herein unless expressly excluded by this Indenture) are a
part of and govern this Indenture, whether or not expressly set
forth herein.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in
this Indenture by the TIA, the required provision shall control. If
any provision of this Indenture modifies or excludes any provision
of the TIA that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
SECTION 10.02. Notices.
Any notice by one party to another is duly given if in
writing and delivered in person, sent by facsimile transmission
confirmed by mail or mailed by first-class mail to the other's
address shown below:
Company:
Sequa Corporation
200 Park Avenue
New York, New York 10166
Fax: (212) 370-1969
Attention: Treasurer
Trustee:
Harris Trust Company of New York
Wall Street Plaza
88 Pine Street
New York, New York 10005
Fax: (212) 701-7698
Attention: Corporate Trust Department
<PAGE>
A party by notice to the other parties may designate
additional or different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to
his address shown on the register kept by the Registrar or on the
list referred to in Section 2.06. Failure to mail a notice to a
Securityholder or any defect in a notice mailed to a Securityholder
shall not affect the sufficiency of the notice mailed to other
Securityholders or the sufficiency of any published notice.
If a notice is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice to Securityholders, it shall
mail a copy to the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a
notice required to be mailed or to publish a notice required to be
published, the Company may give such substitute notice as the
Trustee approves. Failure to publish a notice as required or any
defect in it shall not affect the sufficiency of any mailed notice.
All notices shall be in the English language, except that
any published notice may be in an official language of the country
of publication.
A "notice" includes any communication required by this
Indenture.
<PAGE>
SECTION 10.03. 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
if so requested furnish to the Trustee:
(1) 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
(2) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have
been complied with.
SECTION 10.04. Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(3) a statement that, in the opinion of such person, he
has made such examination or investigation as is
necessary to enable him to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
<PAGE>
(4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been
complied with.
SECTION 10.05. Rules by Company and Agents.
The Company may make reasonable rules for action by or a
meeting of Securityholders. An Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 10.06. No Lien Created, etc.
Except as provided in Section 7.06, this Indenture and the
Securities do not create a Lien, charge or encumbrance on any
property of the Company or any Subsidiary.
SECTION 10.07. Legal Holidays.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on
which banking institutions are not required to be open. If a
payment date is a Legal Holiday at a place of payment, unless the
Securities Resolution establishing a series otherwise provides with
respect to Securities of the series, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 10.08. No Recourse Against Others.
All liability described in the Securities of any director,
officer, employee or stockholder, as such, of the Company is waived
and released.
<PAGE>
SECTION 10.09. Duplicate Originals.
The parties may sign any number of copies of this
Indenture. One signed copy is enough to prove this Indenture.
SECTION 10.10. Governing Law.
The laws of the State of New York shall govern this
Indenture, the Securities and any coupons, unless federal law
governs.
<PAGE>
SIGNATURES
Dated: July 29, 1999 SEQUA CORPORATION
By /s/ Kenneth A. Drucker
----------------------
Name: Kenneth A. Drucker
Title: Vice President and
Treasurer
Dated: July 29, 1999 HARRIS TRUST COMPANY OF
NEW YORK
By /s/ Amy Roberts
-------------------
Name: Amy Roberts
Title: Vice President
<PAGE>
EXHIBIT A
A Form of Registered Security
No. $
SEQUA CORPORATION
[Title of Security]
Sequa Corporation
promises to pay to
or registered assigns
the principal sum of Dollars on
'
Interest Payment Dates:
Record Dates:
Dated:
SEQUA CORPORATION
by
(SEAL)----------------------------
Authenticated: Chairman of the Board
[Name of Trustee], as
Trustee
Dated:
By
- ------------------------------- -----------------------------
Authorized Signature Vice President
A-1
<PAGE>
SEQUA CORPORATION
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. INTEREST. (1)
Sequa Corporation ("Company"), a corporation organized and
existing under the laws of the State of Delaware, promises
to pay interest on the principal amount of this Security
at the rate per annum shown above. The Company will pay
interest on and of each year commencing
, 19__. Interest on the Securities will accrue from
the most recent date to which interest has been paid or,
if no interest has been paid, from , 19__.
Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. METHOD OF PAYMENT. (2)
The Company will pay interest on the Securities to the
persons who are registered holders of Securities at the
close of business on the record date for the next interest
payment date, except as otherwise provided in the
Indenture. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that
at the time of payment is legal tender for payment of
public and private debts. The Company may pay principal
and interest by check payable in such money. It may mail
an interest check to a holder's registered address.
A-2
<PAGE>
3. AGENTS.
Initially, Attention:
, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or
Registrar without notice or provide for more than one such
agent. The Company or any Affiliate may act in any such
capacity.
4. INDENTURE.
The Company issued the securities of this series
("Securities") under an Indenture dated as of
, ("Indenture") between the Company
and ("Trustee"). The terms of the
Securities include those stated in the Indenture and in
the Securities Resolution creating the Securities and
those made part of the Indenture by the Trust Indenture
Act of 1939 (15 U.S. Code '' 77aaa-77bbbb), as amended.
Securityholders are referred to the Indenture, the
Securities Resolution and the Act for a statement of such
terms.
5. OPTIONAL REDEMPTION. (3)
On or after ,the Company may redeem
all the Securities at any time or some of them from time
to time at the following redemption prices (expressed in
percentages of principal amount), plus accrued interest
to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
A-3
<PAGE>
6. MANDATORY REDEMPTION. (4)
The Company will redeem $ principal amount of
Securities on and on each
thereafter through at a
redemption price of 100% of principal amount, plus accrued
interest to the redemption date.(5) The Company may
reduce the principal amount of Securities to be redeemed
pursuant to this paragraph by subtracting 100% of the
principal amount (excluding premium) of any Securities
(i) that the Company has
acquired or that the Company has redeemed other than
pursuant to this paragraph and (ii) that the Company has
delivered to the Registrar for cancellation. The Company
may so subtract the same Security only once.
7. ADDITIONAL OPTIONAL REDEMPTION. (6)
In addition to redemptions pursuant to the above
paragraph(s), the Company may redeem not more than
$ principal amount of Securities on
and on each thereafter through
at a redemption price of 100% of principal
amount, plus accrued interest to the redemption date.
8. NOTICE OF REDEMPTION. (7)
Notice of redemption will be mailed at least 30 days
before the redemption date to each holder of Securities
to be redeemed at his registered address.
A-4
<PAGE>
A notice of redemption may provide that it is subject to
the occurrence of any event before the date fixed for such
redemption as described in such notice ("Conditional
Redemption") and such notice of Conditional Redemption
shall be of no effect unless all such conditions to the
redemption have occurred before such date or have been
waived by the Company.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in registered form without coupons in
denominations of $1,000 (8) and whole multiples of $1,000.
The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture.
The Trustee may require a holder, among other things, to
furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or the
Indenture. The Trustee need not exchange or register the
transfer of any Security or portion of a Security selected
for redemption. Also, it need not exchange or register
the transfer of any Securities for a period of 15 days
before a selection of Securities to be redeemed.
10. PERSONS DEEMED OWNERS.
The registered holder of a Security may be treated as its
owner for all purposes.
11. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the
Securities may be amended with the consent of the holders
of a majority in principal amount of the securities of all
series affected by the amendment. (9) Subject to certain
exceptions, a default on a series may be waived with the
consent of the holders of a majority in principal amount
of the series.
A-5
<PAGE>
Without the consent of any Securityholder, the Indenture
or the Securities may be amended, among other things, to
cure any ambiguity, omission, defect or inconsistency; to
provide for assumption of Company obligations to
Securityholders; or to make any change that does not
materially adversely affect the rights of any
Securityholder.
12. RESTRICTIVE COVENANTS. (10)
The Securities are unsecured general obligations of the
Company limited to $ principal amount. The
Indenture does not limit other unsecured debt.
13. SUCCESSORS.
When a successor assumes all the obligations of the
Company under the Securities and the Indenture, the
Company will be released from those obligations.
14. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY. (11)
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with
the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to
redemption or maturity. U.S. Government Obligations are
securities backed by the full faith and credit of the
United States of America or certificates representing an
ownership interest in such Obligations.
A-6
<PAGE>
15. DEFAULTS AND REMEDIES.
An Event of Default (12) includes: default for 60 days
in payment of interest on the Securities; default in
payment of principal on the Securities; default for 60
days in payment or satisfaction of any sinking fund
obligation; default by the Company for a specified period
after notice to it in the performance of any of its other
agreements applicable to the Securities; certain events
of bankruptcy or insolvency; and any other Event of
Default provided for in the series. If an Event of
Default occurs and is continuing, the Trustee or the
holders of at least 33-1/3% in principal amount of the
Securities may declare the principal (13) of all the
Securities to be due and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before
it enforces the Indenture or the Securities. Subject to
certain limitations, holders of a majority in principal
amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold
from Securityholders notice of any continuing default
(except a default in payment of principal or interest) if
it determines that withholding notice is in their
interests. The Company must furnish an annual compliance
certificate to the Trustee.
16. TRUSTEE DEALINGS WITH COMPANY.
, the Trustee under the Indenture,
in its individual or any other capacity, may make loans
to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
A-7
<PAGE>
17. 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.
18. AUTHENTICATION.
This Security shall not be valid until authenticated by
a manual signature of the Trustee.
19. ABBREVIATIONS.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entirety),
JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON
WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE AND THE
SECURITIES RESOLUTION WHICH CONTAINS THE TEXT OF THIS SECURITY IN
LARGER TYPE. REQUESTS MAY BE MADE TO: SEQUA CORPORATION, 200 PARK
AVENUE, NEW YORK, NEW YORK 10166, ATTENTION: TREASURER.
A-8
<PAGE>
EXHIBIT B
A Form of Bearer Security
No. $
SEQUA CORPORATION
[Title of Security]
[Explanatory Notes follow]
Sequa Corporation
promises to pay to bearer
the principal sum of Dollars on ,
Interest Payment Dates: Dated:
SEQUA CORPORATION
(SEAL) by
Authenticated:
-------------------------
Chairman of the Board
[Name of Trustee], as
Trustee
By
- ------------------------ -------------------------
Authorized Signature Vice President
B-1
<PAGE>
SEQUA CORPORATION
[Title of Security]
1. INTEREST. (1)
Sequa Corporation ("Company"), a corporation organized and
existing under the laws of the State of Delaware, promises
to pay to bearer interest on the principal amount of this
Security at the rate per annum shown above. The Company
will pay interest on and
of each year commencing , 19__.
Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no
interest has been paid, from , 19__.
Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. METHOD OF PAYMENT. (2)
Holders must surrender Securities and any coupons to a
Paying Agent to collect principal and interest payments.
The Company will pay principal and interest in money of
the United States that at the time of payment is legal
tender for payment of public and private debts. The
Company may pay principal and interest by check payable
in such money.
3. AGENTS.
Initially, , Attention:
, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or
Registrar without notice or provide for more than one such
agent. The Company or any Affiliate may act in any such
capacity.
B-2
<PAGE>
4. INDENTURE.
The Company issued the securities of this series
("Securities") under an Indenture dated as of
("Indenture") between the Company and
("Trustee"). The terms of the
Securities include those stated in the Indenture and the
Securities Resolution and those made part of the Indenture
by the Trust Indenture Act of 1939 (15 U.S. Code ''
77aaa-77bbbb), as amended. Securityholders are referred
to the Indenture, the Securities Resolution and the Act
for a statement of such terms.
5. OPTIONAL REDEMPTION. (3)
On or after , the Company may redeem
all the Securities at any time or some of them from time
to time at the following redemption prices (expressed in
percentages of principal amount), plus accrued interest
to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter 100%.
6. MANDATORY REDEMPTION. (4)
The Company will redeem $ principal amount
of Securities on and on each
thereafter through at a
redemption price of 100% of principal amount, plus accrued
interest to the redemption date. (5) The Company may
reduce the principal amount of Securities to be redeemed
pursuant to this paragraph by
B-3
<PAGE>
subtracting 100% of the principal amount (excluding
premium) of any Securities (i) that the Company has
acquired or that the Company has redeemed other than
pursuant to this paragraph and (ii) that the Company has
delivered to the Registrar for cancellation. The Company
may so subtract the same Security only once.
7. ADDITIONAL OPTIONAL REDEMPTION. (6)
In addition to redemptions pursuant to the above
paragraph(s), the Company may redeem not more than
$ principal amount of Securities on
and on each thereafter through
at a redemption price of 100% of
principal amount, plus accrued interest to the redemption
date.
8. NOTICE OF REDEMPTION. (7)
Notice of redemption will be published once in an
Authorized Newspaper in The City of New York and if the
Securities are listed on any stock exchange located
outside the United States and such stock exchange so
requires, in any other required city outside the United
States at least 30 days before the redemption date.
Notice of redemption also will be mailed to holders who
have filed their names and addresses with the Transfer
Agent within the two preceding years. A holder of
Securities may miss important notices if he fails to
maintain his name and address with the Transfer Agent.
A notice of redemption may provide that it is subject to
the occurrence of any event before the date fixed for such
redemption as described in such notice ("Conditional
Redemption") and such notice of Conditional Redemption
shall be of no effect unless all such conditions to the
redemption have occurred before such date or have been
waived by the Company.
B-4
<PAGE>
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in bearer form with coupons in
denominations of $5,000 (8) and whole multiples of $5,000.
The Securities may be transferred by delivery and
exchanged as provided in the Indenture. Upon an exchange,
the Trustee may require a holder, among other things, to
furnish appropriate documents and to pay any taxes and
fees required by law or the Indenture. The Trustee need
not exchange any Security or portion of a Security
selected for redemption. Also, it need not exchange any
Securities for a period of 15 days before a selection of
Securities to be redeemed.
10. PERSONS DEEMED OWNERS.
The holder of a Security or coupon may be treated as its
owner for all purposes.
11. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the
Securities may be amended with the consent of the holders
of a majority in principal amount of the securities of all
series affected by the amendment. (9) Subject to certain
exceptions, a default on a series may be waived with the
consent of the holders of a majority in principal amount
of the series.
Without the consent of any Securityholder, the Indenture
or the Securities may be amended, among other things, to
cure any ambiguity, omission, defect or inconsistency; to
provide for assumption of Company obligations to
Securityholders; or to make any change that does not
materially adversely affect the rights of any
Securityholder.
B-5
<PAGE>
12. RESTRICTIVE COVENANTS. (10)
The Securities are unsecured general obligations of the
Company limited to $ principal amount.
The Indenture does not limit other unsecured debt.
13. SUCCESSORS.
When a successor assumes all the obligations of the
Company under the Securities, any coupons and the
Indenture, the Company will be released from those
obligations.
14. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY. (11)
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the
Securities, any coupons and the Indenture if the Company
deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and
interest on the Securities to redemption or maturity.
U.S. Government Obligations are securities backed by the
full faith and credit of the United States of America or
certificates representing an ownership interest in such
Obligations.
15. DEFAULTS AND REMEDIES.
An Event of Default (12) includes: default for 60 days
in payment of interest on the Securities; default in
payment of principal on the Securities; default for 60
days in payment or satisfaction of any sinking fund
obligation; default by the Company for a specified period
after notice to it in the performance of any of its other
agreements applicable to the Securities;
B-6
<PAGE>
certain events of bankruptcy or insolvency; and any other
Event of Default provided for in the series. If
an Event of Default occurs and is continuing, the Trustee
or the holders of at least 33-1/3% in principal amount of
the Securities may declare the principal (13) of all the
Securities to be due and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before
it enforces the Indenture or the Securities. Subject to
certain limitations, holders of a majority in principal
amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold
from Securityholders notice of any continuing default
(except a default in payment of principal or interest) if
it determines that withholding notice is in their
interests. The Company must furnish annual compliance
certificates to the Trustee.
16. TRUSTEE DEALINGS WITH COMPANY.
, the Trustee under the Indenture,
in its individual or any other capacity, may make loans
to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
17. 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
B-7
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.
<PAGE>
18. AUTHENTICATION.
This Security shall not be valid until authenticated by
a manual signature of the Trustee.
19. ABBREVIATIONS.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entirety),
JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON
WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE AND THE
SECURITIES RESOLUTION WHICH CONTAINS THE TEXT OF THIS SECURITY IN
LARGER TYPE. REQUESTS MAY BE MADE TO: SEQUA CORPORATION, 200 PARK
AVENUE, NEW YORK, NEW YORK 10166, ATTENTION: TREASURER.
B-8
<PAGE>
[FACE OF COUPON]
...............
[$]............
Due............
SEQUA CORPORATION
[Title of Security]
Unless the Security attached to this coupon has been
called for redemption, Sequa Corporation (the "Company") will pay to
bearer, upon surrender, the amount shown hereon when due. This
coupon may be surrendered for payment to any Paying Agent listed on
the back of this coupon unless the Company has replaced such Agent.
Payment may be made by check. This coupon represents months'
interest
SEQUA CORPORATION
By________________________________
[REVERSE OF COUPON]
PAYING AGENTS
B-9
<PAGE>
NOTES TO EXHIBITS A AND B
1 If the Security is not to bear interest at a fixed rate per
annum, insert a description of the manner in which the rate of
interest is to be determined. If the Security is not to bear
interest prior to maturity, so state.
2 If the method or currency of payment is different, insert a
statement thereof.
3 If applicable. A restriction on redemption or refunding or any
provision applicable to its redemption other may be added.
4 Such provisions as are applicable, if any.
5 If the Security is a Discounted Debt Security, insert amount to
be redeemed or method of calculating such amount.
6 If applicable. Also insert, if applicable, provisions for
repayment of Securities at the option of the Securityholder.
7 If applicable.
8 If applicable. Insert additional or different denominations
and terms as appropriate.
9 If different terms apply, insert a brief summary thereof.
10 If applicable. If additional or different covenants apply,
insert a brief summary thereof.
11 If applicable. If different defeasance terms apply, insert a
<PAGE>
brief summary thereof.
12 If additional or different Events of Default apply, insert a
brief summary thereof.
13 If the Security is a Discounted Debt Security, set forth the
amount due and payable upon an Event of Default.
Note: U.S. tax law may require certain legends on Discounted Debt
and Bearer Securities.
<PAGE>
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
__________________________________________
__________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________ agent to
transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date: _______________ Your Signature: _____________________
_____________________
(Sign exactly as your name appears on the other side of this
Security)
<PAGE>
9% SENIOR NOTES DUE 2009
SECURITIES RESOLUTION NO. 1
OF
SEQUA CORPORATION
The actions described below are taken by the Board of
Directors (the "Board") of SEQUA CORPORATION (the "Company"), or
by an Officer or committee of Officers pursuant to Board
delegation, in accordance with resolutions adopted by the Board
as of June 24, 1999, and Section 2.02 of the Indenture to be
dated as of July 29, 1999 (the "Indenture") between the Company
and Harris Trust Company of New York, Trustee. Terms used herein
and not defined have the same meaning given such terms in the
Indenture.
RESOLVED, that a new series of Securities is authorized
as follows:
1. The title of the series is 9% Senior Notes due
2009 ("Notes").
2. The form of Notes shall be substantially in the
form of Exhibit 1 hereto.
3. The Notes shall have the terms set forth in
Exhibit 1.
4. The Notes shall have such other terms as are set
forth in Exhibit 2 hereto.
5. The Notes shall be sold to the underwriters named
in the Prospectus Supplement dated July 26, 1999 on the following
terms:
Price to Public: 99.305%
Underwriting Discount: 1.625%
Closing Date: July 29, 1999
This Securities Resolution shall be effective as of
July 28, 1999.
<PAGE>
IN WITNESS WHEREOF, the undersigned have adopted the
foregoing Resolutions this 28th day of July, 1999.
By: /s/ Norman E. Alexander
-----------------------
Name: Norman E. Alexander
Title: Chairman and Chief
Executive Officer
By: /s/ John J. Quicke
------------------
Name: John J. Quicke
Title: Chairman and Chief
Operating Officer
By: /s/ Stuart Z. Krinsly
---------------------
Name: Stuart Z. Krinsly
Title: Senior Executive
Vice President and
General Counsel
By: /s/ Alvin Dworman
-----------------
Name: Alvin Dworman
Title: Chairman, ADCO
Group and Member,
Sequa Corporation
Executive
Committee of the
Board of Directors
<PAGE>
CUSIP 817320AH7
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), 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 DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), 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.
No. R- $500,000,000
SEQUA CORPORATION
9% Senior Notes due August 1, 2009
SEQUA CORPORATION
promises to pay to Cede & Co.
or registered assigns
the principal sum of Five Hundred Million Dollars on
August 1, 2009
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to
be signed manually or by facsimile by its duly authorized offi-
cers.
Dated: July 29, 1999
HARRIS TRUST COMPANY SEQUA CORPORATION
OF NEW YORK
Transfer Agent and Paying By:__________________
Agent Name:
Title:
By:-------------------
Name:
Title:
Authenticated:
HARRIS TRUST COMPANY OF NEW YORK (CORPORATE SEAL)
as Trustee,
By:
___________________________
Authorized Signature
<PAGE>
SEQUA CORPORATION
9% Senior Notes due 2009
1.INTEREST.
Sequa Corporation ("Company"), a corporation organized
and existing under the laws of the State of Delaware,
promises to pay interest on the principal amount of
this Note at the rate per annum shown above. The Com-
pany shall pay interest on February 1 and August 1 of
each year, commencing February 1, 2000. Interest on
the Notes shall accrue from the most recent date to
which interest has been paid or, if no interest has
been paid, from and including July 29, 1999. Interest
shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Notes to the per-
sons who are registered holders of Notes at the close
of business on the record date for the next interest
payment date, except as otherwise provided in the In-
denture. Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company shall
pay principal and interest in money of the United
States that at the time of payment is legal tender for
payment of public and private debts. The Company may
pay principal and interest by check payable in such
money. It may mail an interest check to a holder's
registered address.
3. AGENTS.
Initially, Harris Trust Company of New York, Wall
Street Plaza, 88 Pine Street, New York, New York 10005,
Attention: Corporate Trust Department, shall act as
Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice or provide for
more than one such agent. The Company or any Affiliate
may act in any such capacity.
<PAGE>
4. INDENTURE.
The Company issued the securities of this series
("Notes") under an Indenture dated as of July 29, 1999
("Indenture") between the Company and Harris Trust Com-
pany of New York ("Trustee"). The terms of the Notes
include those stated in the Indenture and in the Secu-
rities Resolution creating the Notes and those made
part of the Indenture by the Trust Indenture Act of
1939 (15 U.S. Code 77aaa-77bbbb), as amended.
Securityholders are referred to the Indenture, the Se-
curities Resolution and the Act for a statement of such
terms. Capitalized terms herein are used as defined in
the Indenture or in the Securities Resolution, unless
otherwise indicated.
5. OPTIONAL REDEMPTION.
The Company may at its option redeem all or part of the
Notes on at least 30 days, but not more than 60 days,
prior notice mailed to the registered address of each
Holder of Notes. The redemption price shall equal the
greater of:
100% of the principal amount of the Notes to be
redeemed; and
the sum of the present values of the Remaining
Scheduled Payments discounted to the date of re-
demption, on a semiannual basis (assuming a 360-
day year consisting of twelve 30-day months), at
the Treasury Rate plus 50 basis points
plus accrued and unpaid interest thereon to the date of
redemption.
6. NOTICE OF REDEMPTION.
Notice of redemption shall be mailed by first class
mail at least 30 days but not more than 60 days before
the redemption date to each holder of Notes to be re-
deemed at his registered address.
A notice of redemption may provide that it is subject
to the occurrence of any event before the date fixed
<PAGE>
for such redemption as described in such notice
("Conditional Redemption") and such notice of
Conditional Redemption shall be of no effect unless all
such conditions to the redemption have occurred before
such date or have been waived by the Company.
7. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000.
The transfer of Notes may be registered and Notes may
be exchanged as provided in the Indenture. The Trustee
may require a holder, among other things, to furnish
appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or the Indentur-
e. The Trustee need not exchange or register the tran-
sfer of any Note or portion of a Note selected for re-
demption. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed.
8. PERSONS DEEMED OWNERS.
The registered holder of a Note may be treated as its
owner for all purposes.
9. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the
Securities may be amended with the written consent of
the Holders of a majority in principal amount of the
securities of all series affected by the amendment vot-
ing as one class. Subject to certain exceptions, a
default on a series may be waived with the consent of
the holders of a majority in principal amount of the
series.
Without the consent of any Securityholder, the Inden-
ture or the Securities may be amended, among other
things, to cure any ambiguity, omission, defect or in-
consistency; to provide for assumption of Company obli-
gations to Securityholders in a transaction in which
the Company is not the survivor; or to make any change
that does not materially adversely affect the rights of
any Securityholder.
<PAGE>
10. RESTRICTIVE COVENANTS.
The Notes are unsecured general obligations of the Com-
pany limited to $500,000,000 principal amount. The
Indenture does not limit other unsecured debt. The
Indenture and the Securities Resolution creating the
Notes contain certain covenants, including, without
limitation, covenants with respect to the following
matters: (i) Liens, (ii) Sale and Leaseback Transactio-
ns and (iii) mergers and certain transfers of assets.
11. CHANGE OF CONTROL
Subject to the terms and conditions of the Indenture
and the Securities Resolution, in the event of a Change of
Control, the Company shall be required to commence, within
30 days following the date upon which the Change of Control
occurred, an offer to all Holders to purchase all of the
outstanding Notes at a purchase price equal to 101% of the
aggregate principal amount of the Notes plus accrued and
unpaid interest, if any, to the Change of Control Payment
Date.
12. SUCCESSORS.
When a successor assumes all the obligations of the
Company under the Securities and the Indenture, the
Company shall be released from those obligations.
13. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY.
Subject to certain conditions, the Company at any time
may terminate some or all of its obligations under the
Notes and the Indenture if the Company deposits with
the Trustee sufficient money or U.S. Government Obliga-
tions for the payment of principal and interest on the
Notes to redemption or maturity. U.S. Government Obli-
gations are securities backed by the full faith and
credit of the United States of America or certificates
representing an ownership interest in such Obligations.
<PAGE>
14. DEFAULTS AND REMEDIES.
An Event of Default includes: default for 60 days in
payment of interest on any Notes; default in payment of
principal and premium, if any, on any Notes; default
for 60 days in payment or satisfaction of any sinking
fund obligation; default by the Company for a 90-day
period after notice to it in the performance of any of
its other agreements applicable to the Notes; certain
events of bankruptcy or insolvency; and any other Event
of Default provided for in the series. If an Event of
Default occurs and is continuing, the Trustee or the
holders of at least 33-1/3% in principal amount of the
Notes may declare the principal of all the Notes to be
due and payable immediately. Securityholders may not
enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or
the Notes. Subject to certain limitations, holders of
a majority in principal amount of the Securities may
direct the Trustee in its exercise of any trust or pow-
er. The Trustee may withhold from Securityholders no-
tice of any continuing default (except a default in
payment of principal or interest) if it determines in
good faith that withholding notice is in their inter-
ests. The Company must furnish an annual compliance
certificate to the Trustee.
15. TRUSTEE DEALINGS WITH COMPANY.
Harris Trust Company of New York, the Trustee under the
Indenture, in its individual or any other capacity, may
make loans to, accept deposits from, and perform ser-
vices for the Company or its Affiliates, and may other-
wise deal with the Company or its Affiliates, as if it
were not Trustee.
16. 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 Notes or the In-
denture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each
Securityholder by accepting a Note waives and releases
all such liability. The waiver and release are part of
the consideration for the issue of the Notes.
<PAGE>
17. AUTHENTICATION.
This Note shall not be valid until authenticated by a
manual signature of the Registrar.
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entire-
ty), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
The Company shall furnish to any Securityholder upon
written request and without charge a copy of the Indenture and
the Securities Resolution which contains the text of this Securi-
ty in larger type. Requests may be made to: Sequa Corporation,
200 Park Avenue, New York, New York 10166, Attention: Treasurer.
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Security to
_________________________________________
_______________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
- -----------------------------------------------------------------
- -----------------------------------------------------------------
- -----------------------------------------------------------------
- -----------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________ agent to
transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:_______________ Your Signature: ---------------------
---------------------
(Sign exactly as your name appears on the other side of this
Note)
<PAGE>
EXHIBIT 2
9% Senior Notes due 2009
Supplemental Terms
In addition to the terms set forth in Exhibit 1 to Se-
curities Resolution No. 1, the 9% Senior Notes due 2009 (the
"Notes") shall have the following terms:
Section 1. Definitions. Capitalized terms used
and not defined herein shall have the meaning given such terms in
the Indenture. The following are additional definitions applica-
ble to the Notes:
"Affiliated Person" of any specified person means any
other person directly or indirectly controlling or con-
trolled by or under direct or indirect common control
with such specified person.
"Attributable Debt" when used in connection with a Sale
and Leaseback Transaction, shall mean, as of any par-
ticular time, the lesser of: (i) the fair market value,
as determined in good faith by the Board and evidenced
by a Board resolution set forth in an Officers' Certif-
icate delivered to the Trustee, of the property subject
to such arrangement; and (ii) the then present value
(computed by discounting the rate of interest implicit
in such Sale and Leaseback Transaction, determined in
accordance with GAAP) of the obligation of a lessee for
net rental payments during the remaining term of any
lease in respect of such property (including any period
for which such lease has been extended or may, at the
option of the lessor, be extended). The term "net ren-
tal payments" under any lease for any period means the
sum of the rental payments required to be paid in such
period by the lessee thereunder, not including, howev-
er, any amounts required to be paid by such lessee (wh-
ether or not designated as rental or additional rental)
on account of maintenance and repairs, insurance, tax-
es, assessments, water rates or similar charges re-
quired to be paid by such lessee thereunder or any
amounts required to be paid by such lessee thereunder
contingent upon the amount of sales, maintenance and
<PAGE>
repairs, insurance taxes, assessments, water rates or simi-
lar charges.
"Capital Stock" means (1) with respect to any person formed
as a corporation, any and all shares, interests, participat-
ions, rights or other equivalents (however designated) of
corporate stock, including, without limitation, common stock
and preferred stock of such person and (2) with respect to
any person formed other than as a corporation, any and all
partnership or other equity interests of such other person.
"Change of Control" means the occurrence of any of the
following: (1) the sale, lease, exchange or other tra-
nsfer, in one or a series of related transactions, of
all or substantially all of the Company's assets to any
person or group (as such term is used in Section 13(d)
of the Exchange Act); (2) the adoption of a plan by the
stockholders of the Company relating to the liquidation
or dissolution of the Company; (3) except as provided
below, the acquisition of beneficial ownership by any
person or group, together with any Affiliated Persons
thereof (collectively, the "Interested Stockholders"),
of a direct or indirect interest in more than 35% (or,
in the case of Gabelli, 49%) of the voting power of the
then outstanding Capital Stock of the Company entitled
to vote generally in the election of the Board; or (4)
during any period of two consecutive years, individuals
who at the beginning of such period constituted the
Board (together with any new directors whose election
or appointment by the Board or whose nomination for
election or appointment by the stockholders of the Com-
pany was approved by a vote of a majority of the direc-
tors then still in office who were either directors at
the beginning of such period or whose election or nomi-
nation for election was previously so approved) cease
for any reason to constitute a majority of the Board
then in office; provided, however, that for the purpos-
es of the foregoing clauses (1) and (3), the terms "pe-
rson" or "group" shall not be deemed to include Norman
E. Alexander ("Alexander"), his spouse, any descendant
of Alexander or the spouse of any such descendant, the
estate of Alexander, or any trust or other similar ar-
rangement for the benefit of Alexander or his spouse,
any descendent of Alexander or the spouse of any such
descendant or the estate of Alexander or any corpora-
tion or other person controlled solely by one or more
of Alexander or his spouse, any descendant of Alexander
or the spouse of any such descendant or the estate of
Alexander through the ownership of a majority of the
outstanding voting Capital Stock of such corporation or
<PAGE>
other person (collectively, the "Alexander Stockholders");
and provided, further, that there shall not be a "Change of
Control" pusuant to clause (3) above so long as the Alexan-
der Stockholders beneficially own a greater percentage of
the voting power of the then outstanding Capital Stock of
the Company than the Interested Stockholders.
"Comparable Treasury Issue" means the fixed rate United
States Treasury security selected by an Independent
Investment Banker as having a maturity most comparable
to the remaining term of the Notes (and which is not
callable prior to maturity) to be redeemed that would
be utilized, at the time of selection and in accordance
with customary financial practices, in pricing new is-
sues of corporate debt securities of comparable matu-
rity to the remaining term of the Notes to be redeemed.
"Comparable Treasury Price" means: (i) the average of
the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its
principal amount) on the third business day preceding
such redemption date, as set forth in the daily statis-
tical release (or any successor release) published by
the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U.S. Government
Securities"; or (ii) if such release (or any successor
release) is not published or does not contain such pri-
ces on such business day, (A) the average of the Refer-
ence Treasury Dealer Quotations for such redemption
date, after excluding the highest or lowest of such
Reference Treasury Dealer Quotations, or (B) if the
Trustee obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Consolidated Assets" means the Company's assets, de-
termined in accordance with GAAP and consolidated for
financial reporting purposes in accordance with GAAP,
such assets to be valued at book value.
"Control" means (including, with correlative meanings,
the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any per-
son, the possession, directly or indirectly, of the
power to direct or cause the direction of the manage-
ment or policies of such person, whether through the
<PAGE>
ability to exercise voting power, by contract or otherwise.
"Depositary" means, with respect to the Notes issued as
a global Security, The Depository Trust Company, New
York, New York, or any successor thereto registered
under the Securities Exchange Act of 1934 or other ap-
plicable statute or regulation.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Funded Indebtedness" means all Indebtedness of the
Company and its Restricted Subsidiaries maturing by its
terms more than one year after, or which is renewable
or extendable at our option for a period ending more
than one year after, the date as of which Funded Indeb-
tedness is being determined.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Pub-
lic Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other state-
ments by such entity as have been approved by a significant
segment of the accounting profession, which are in effect
from time to time.
"Gabelli" means any person controlled by, or which is
an Affiliated Person of, Mario Gabelli.
"Indebtedness" means, without duplication: (i) all ob-
ligations in respect of borrowed money or for the de-
ferred purchase or acquisition price of property (in-
cluding all types of real, personal, tangible, intangi-
ble or mixed property) or services (excluding trade
accounts payable, deferred taxes and accrued liabili-
ties which arise in the ordinary course of business)
which are, in accordance with GAAP, includible as a
liability on a balance sheet consolidated for financial
reporting purposes in accordance with GAAP; (ii) all
amounts representing the capitalization of rental obli
<PAGE>
gations in accordance with GAAP; and (iii) all Contingent Obliga-
tions with respect to the foregoing.
For purposes of clause (iii) above, "Contingent Obliga-
tion" means, as to any person, any obligation of such
person guaranteeing or in effect guaranteeing any In-
debtedness, leases, dividends or other obligations
("primary obligations") of any other person (the "primary
obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such per-
son, whether or not contingent: (a) to purchase any such
primary obligation or any property constituting direct or
indirect security therefor; (b) to advance or supply funds
(1) for the purchase or payment of any such primary obliga-
tion or (2) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor; (c) to purchase proper-
ty, securities or services primarily for the purpose of as-
suring the beneficiary of any such primary obligation of the
ability of the primary obligor to make payment of such pri-
mary obligation; or (d) otherwise to assure or hold harmless
the beneficiary of such primary obligation against loss in
respect thereof;
provided, however, that the term "Contingent Obliga-
tion" shall not include the endorsement of instruments
for deposit or collection in the ordinary course of
business. The term "Contingent Obligation" shall also
include the liability of a general partner in respect
of the primary obligations of a partnership in which it
is a general partner. The amount of any Contingent
Obligation of a person shall be deemed to be an amount
equal to the principal amount of the primary obligation
in respect to which such Contingent Obligation is made.
"Independent Investment Banker" means one of the Refer-
ence Treasury Dealers appointed by the Company.
"Investment Grade Rating" means (1) with respect to
S&P, any of the categories from and including AAA to
and including BBB- (or equivalent successor categories)
and (2) with respect to Moody's, any of the categories
from and including Aaa to and including Baa3 (or equiv-
alent successor categories).
<PAGE>
"Moody's" means Moody's Investors Service, Inc. and any
successor thereto which is a nationally recognized sta-
tistical rating organization.
"person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, un-
incorporated organization or government or any agency or
political subdivision thereof.
"Principal Property" means the principal manufacturing
facilities owned by the Company or a Restricted Subsid-
iary located in the United States, except such as the
Board, in its good faith opinion, reasonably determines
is not significant to the business, financial condition
and earnings of the Company and its consolidated Sub-
sidiaries taken as a whole, as evidenced by a Board
resolution, and except for: (i) any and all personal
property, including, without limitation, (A) motor ve-
hicles and other rolling stock, and (B) office furnish-
ings and equipment and information and electronic data
processing equipment; (ii) any property financed
through obligations issued by a state, territory or
possession of the United States, or any political sub-
division or instrumentality of the foregoing; or (iii)
any real property held for development or sale.
"Reference Treasury Dealer" means each of Bear, Stearns
& Co. Inc. and Chase Securities Inc. and their respec-
tive successors. If any of the foregoing shall cease
to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), the Compa-
ny shall appoint in its place another nationally recog-
nized investment banking firm that is a Primary Trea-
sury Dealer.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any redemption date,
the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at
3:30 p.m., New York City time, on the third business day
preceding such redemption date.
<PAGE>
"Remaining Scheduled Payments" means, with respect to
each Note to be redeemed, the remaining scheduled pay-
ments of the principal thereof and interest thereon
that would be due after the related redemption date if
such Note were not redeemed. However, if such redemp-
tion date is not an interest payment date with respect
to such Note, the amount of the next succeeding sched-
uled interest payment thereon shall be reduced by the
amount of interest accrued thereon to such redemption
date.
"Restricted Subsidiary" means any of the Company's con-
solidated Subsidiaries that own any Principal Property.
"S&P" means Standard & Poor's Ratings Services, a divi-
sion of The McGraw-Hill Companies, Inc., and any suc-
cessor thereto which is a nationally recognized statis-
tical rating organization.
"Treasury Rate" means an annual rate equal to the semi-
annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its prin-
cipal amount) equal to the Comparable Treasury Price
for such redemption date. The semiannual equivalent
yield to maturity shall be computed as of the second
business day immediately preceding such redemption
date.
Section 2. Securities Issuable as Global Securi-
ties.
(a) The Notes shall be issued in the form of one or
more permanent global Securities and shall, except as otherwise
provided in this Section 2, be registered only in the name of the
Depositary or its nominee. Each global Security shall bear a
legend substantially to the following effect:
"Unless this certificate is presented by an authorized rep-
resentative of The Depository Trust Company, a New York cor-
poration ("DTC"), to the Company or its agent for registra-
tion of transfer, exchange, or payment, and any certificate
<PAGE>
issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative
of DTC), 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 here-
in."
(b) If at any time (i) the Depositary with respect to
the Notes notifies the Company that it is unwilling or unable to
continue as Depositary for such global Security or (ii) the De-
positary for the Notes shall no longer be eligible or in good
standing under the Securities Exchange Act of 1934 or other ap-
plicable statute or regulation, the Company shall appoint a suc-
cessor Depositary with respect to such global Security. If a
successor Depositary for such global Security is not appointed by
the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Transfer Agent shall
register the exchange of such global Security for an equal pri-
ncipal amount of Registered Securities in the manner provided in
Section 2.07 of the Indenture.
(c) The Transfer Agent shall register the transfer or
exchange of a global Security for Registered Securities pursuant
to Section 2.07 of the Indenture if (i) a Default or Event of
Default shall have occurred and be continuing with respect to the
Notes or (ii) the Company determines that the Notes shall no lon-
ger be represented by global Securities.
(d) In any exchange provided for in the preceding pa-
ragraphs (b) or (c), the Company shall execute and the Registrar
shall authenticate and deliver Registered Securities. Registered
Securities issued in exchange for a global Security shall be in
such names and denominations as the Depositary for such global
Security shall instruct the Registrar. The Registrar shall de-
liver such Registered Securities to the persons in whose names
such Securities are so registered.
Section 3. Optional Redemption. The Company may
at its option redeem all or part of the Notes on at least 30 da-
ys, but not more than 60 days, prior notice mailed to the regis-
tered address of each Holder of Notes. The redemption price
shall equal the greater of:
<PAGE>
(i) 100% of the principal amount of the Notes to be
redeemed; and
(ii) the sum of the present values of the Remaining
Scheduled Payments discounted to the date of redemption, on a
semiannual basis (assuming a 360-day year consisting of twelve
30-day months), at the Treasury Rate plus 50 basis points;
plus accrued and unpaid interest thereon to the date of redemp-
tion.
On and after the redemption date, interest shall cease
to accrue on the Notes or any portion thereof called for redemp-
tion. On or before the redemption date, the Company shall depos-
it with a paying agent (or the Trustee) money sufficient to pay
the redemption price of and accrued interest on the Notes to be
redeemed on such date. If less than all of the Notes are to be
redeemed, the Trustee shall select the Notes to be redeemed by a
method determined by the Trustee to be fair and appropriate.
Section 4. Limitation on Sale and Leaseback Transactio-
ns. The Company shall not, and shall not permit any Restricted
Subsidiary to, lease any Principal Property owned by the Company
or such Restricted Subsidiary (except for leases for a term of
not more than three years), which has been or is to be sold or
transferred by the Company or such Restricted Subsidiary on the
security of such Principal Property (a "Sale and Leaseback
Transaction"), unless either:
(a) the Company or such Restricted Subsidiary would be
entitled pursuant to the "Limitation on Liens" covenant de-
scribed in Section 5 below to incur Indebtedness secured by
a Lien on the Principal Property to be leased back equal in
amount to the Attributable Debt with respect to such Sale
and Leaseback Transaction without equally and ratably secur-
ing the Notes; or
(b) the Company applies an amount equal to the greater
of the net proceeds or the fair market value, as determined
in good faith by the Board and evidenced by a Board resolu-
tion set forth in an Officers' Certificate delivered to the
<PAGE>
Trustee, of the property so sold to the purchase of Princi-
pal Property or to the retirement (other than any mandatory
retirement), within 365 days of the effective date of any
such Sale and Leaseback Transaction, of Notes or other Fund-
ed Indebtedness. Any such retirement of Notes shall be made
in accordance with the Indenture. The amount to be applied
to such retirement of Notes or other Funded Indebtedness
shall be reduced by an amount equal to the sum of:
(i) an amount equal to the principal amount of any Notes
delivered within 365 days after the effective date of such
Sale and Leaseback Transaction to the Trustee for retirement
and cancellation, plus
(ii) the principal amount of other Funded Indebtedness
voluntarily retired by the Company within such 365-day peri-
od,
excluding, in each case, retirements pursuant to mandatory sink-
ing fund or prepayment provisions, if any, and payments at matu-
rity.
The Company or any Restricted Subsidiary may enter into Sale
and Leaseback Transactions in addition to any permitted by the
immediately preceding paragraph and without any obligation to
retire any Notes or other Funded Indebtedness if at the time of
entering into such Sale and Leaseback Transaction and after giv-
ing effect thereto, Attributable Debt resulting from such Sale
and Leaseback Transaction, plus the aggregate amount of all In-
debtedness secured by a Lien (not including Indebtedness excluded
as provided in clauses (i) through (v) under the "Limitation on
Liens" covenant below), does not exceed 20% of Consolidated As-
sets.
Section 5. Limitations on Liens. The Company shall
not, and shall not permit any of its Restricted Subsidiaries to,
create or assume any notes, bonds, debentures or other similar
evidences of Indebtedness secured by any mortgage, pledge, secu-
rity interest or lien (any such mortgage, pledge, security inter-
est or lien being referred to herein as a "Lien" or "Liens") of
or upon any Principal Property owned by the Company or by any
Restricted Subsidiary or on shares of capital stock or evidence
of Indebtedness of any Restricted Subsidiary, unless, for as long
as such Indebtedness is secured by the Lien, the Notes (together
<PAGE>
with, at the Company's election, any other Indebtedness) are se-
cured by such a Lien equally and ratably with (or prior to) any
and all other Indebtedness thereby secured.
The foregoing shall not apply to any of the following:
(i) Liens on any Principal Property, shares of capital
stock or Indebtedness of any corporation existing at the
time such corporation becomes a Subsidiary;
(ii) Liens on any Principal Property, shares of capital
stock or Indebtedness acquired, constructed or improved by
the Company or any Restricted Subsidiary after the date of
the Indenture which are created or assumed prior to or at
the time of such acquisition, construction or improvement or
within 365 days after the acquisition, completion of con-
struction or improvement or commencement of commercial oper-
ation of such property, to secure or provide for the payment
of all or any part of the purchase price or the cost of such
construction or improvement thereof;
(iii) Liens on any Principal Property, shares of capital
stock or Indebtedness existing at the time of acquisition
thereof (including acquisition through merger or consolida-
tion);
(iv) Liens on any Principal Property or shares of cap-
ital stock or Indebtedness acquired from a corporation which
is merged with or into the Company or a Restricted Subsid-
iary;
(v) Liens on any Principal Property, shares of capital
stock or Indebtedness to secure Indebtedness to the Company
or to a Restricted Subsidiary;
(vi) Liens on any Principal Property, shares of capi-
tal stock or Indebtedness in favor of the United States of
America or any state thereof or The Commonwealth of Puerto
Rico, or any department, agency or instrumentality or polit-
ical subdivision of the United States of America or any
<PAGE>
state thereof or The Commonwealth of Puerto Rico, to secure
partial, progress, advance or other payments, or to secure
any Indebtedness incurred for the purpose of financing all
or any part of the cost of acquiring, constructing or impro-
ving any Principal Property, shares of capital stock or In-
debtedness subject to such Liens (including Liens incurred
in connection with pollution control, industrial revenue,
Title XI maritime financings or similar financings), or oth-
er Liens in connection with the issuance of tax-exempt in-
dustrial revenue bonds;
(vii) Liens existing as of the date of original issuance
of the Notes;
(viii) Liens for taxes, assessments or other government
charges, the validity of which is being contested in good
faith by appropriate proceedings and materialmen's, mechan-
ics' and other like Liens or deposits to obtain the release
of such Liens;
(ix) Liens created or deposits made to secure the pay-
ment of workers' compensation claims or the performance of,
or in connection with, tenders, bids, leases, public or st-
atutory obligations, surety and appeal bonds, contracts,
performance and return-of-money bonds or to secure (or in
lieu of) surety or appeal bonds and Liens made in the ordi-
nary course of business for similar purposes; and
(x) any extension, renewal or replacement of any Liens
referred to in the foregoing clauses (i) to (ix), inclusive.
However, such extension, renewal or replacement shall be
limited to the property, shares of capital stock or Indebt-
edness which secured the Lien so extended, renewed or re-
placed (plus improvements on such property).
The Company or any Restricted Subsidiary may create or
assume Liens in addition to those permitted above, and renew,
extend or create such Liens, provided, that at the time of such
creation, assumption, renewal or replacement, and after giving
effect thereto, the aggregate amount of all Indebtedness so se-
cured by a Lien (without regard to Indebtedness permitted in
clauses (i) through (x) above), plus all Attributable Debt of the
Company and its Restricted Subsidiaries in respect of Sale and
Leaseback Transactions which would not be permitted by either
<PAGE>
clause (i) or (ii)of the first paragraph under the "Limitation on
Sale and Leaseback Transactions" covenant found in Section 4
hereof does not exceed 20% of Consolidated Assets.
Section 6. Change of Control. In the event of a Change
of Control, the Company shall be required to commence a Change of
Control Offer (as defined below) to purchase all outstanding
Notes at a purchase price equal to 101% of the aggregate princi-
pal amount of the Notes plus accrued and unpaid interest, if any,
to the date of purchase (the "Change of Control Price"). Within
30 days following the date upon which the Change of Control oc-
curred, the Company must send, by first class mail, a notice to
each Holder of the Notes, with a copy to the Trustee, stating:
(1) that an offer to purchase the Notes is being made
pursuant to the covenant entitled "Change of Control" (the
"Change of Control Offer") and that all Notes tendered shall
be accepted for payment;
(2) the purchase price and the purchase date, which
shall be no earlier than 30 days nor later than 40 days from
the date such notice is mailed other than as may be required
by law (the "Change of Control Payment Date");
(3) that any Note not tendered shall continue to accrue
interest;
(4) that, unless the Company defaults in the payment of
the Change of Control Price, all Notes accepted for payment
pursuant to the Change of Control Offer shall cease to ac-
crue interest after the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer shall be required to
surrender the Notes, with the form entitled "Option of Hold-
er to Elect Purchase" on the reverse of the Notes completed,
to the applicable Paying Agent at the address specified in
the notice no later than the close of business on the busi-
ness day immediately prior to the Change of Control Payment
Date;
<PAGE>
(6) that Holders shall be entitled to withdraw their
election if the applicable Paying Agent receives, not later
than the close of business on the business day two business
days immediately prior to the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount
of Notes delivered for purchase, and a statement that such
Holder is withdrawing his election to have such Notes pur-
chased; and
(7) that Holders whose Notes are being purchased only
in part shall be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple of $1,000.
On the Change of Control Payment Date, the Company shall:
(1) accept for payment Notes or portions of Notes ten-
dered pursuant to the Change of Control Offer;
(2) deposit in immediately available funds with the ap-
plicable Paying Agent an amount equal to the Change of Con-
trol Price in respect of all Notes or portions of Notes so
tendered; and
(3) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate st-
ating the principal amount of the Notes or portions of Notes
tendered to the Company.
The Paying Agent shall promptly mail to each Holder of Notes so
accepted the Change of Control Price for such Notes and return any
Notes which were tendered but for which a withdrawal election was
received by the Paying Agent before the Change of Control Payment
Date, and the Trustee shall promptly authenticate and mail to each
Holder a new Note equal in principal amount to any unpurchased
portion of such Notes surrendered, if any; provided, however, that
each such new Note shall be in a principal amount of $1,000 or an
integral multiple of $1,000.
<PAGE>
The Company shall comply with the requirements of Section
14(e) and Rule 14e-1 under the Exchange Act and any other securi-
ties laws and regulations under those laws to the extent those
laws and regulations are applicable to the repurchase of the Notes
in connection with a Change of Control. If the provisions of any
those laws or rules conflict with the provisions of the Indenture
and the Securities Resolution establishing the Notes relating to a
Change of Control Offer, the Company shall be required to comply
with the provisions of those laws or rules and shall be deemed not
to have breached its obligations relating to the Change of Control
Offer by virtue of such compliance.
During any period in which (1) no Default or Event of Default
has occurred and is continuing and (2) both Moody's and S&P assign
to the Notes an Investment Grade Rating (the "Suspension Period"),
the Company shall not be subject to the provisions of this Section
6; provided, however, that if subsequently both Moody's and S&P
withdraw their ratings of the Notes, or downgrade the ratings as-
signed to the Notes to below an Investment Grade Rating, upon such
withdrawal or downgrading the Suspension Period shall terminate
and the Company shall be again subject to the provisions of this
Section 6; provided, further, however, that if a Change of Control
occurs during a Suspension Period and such Suspension Period is
terminated as provided above, such Change of Control shall be
deemed to have occurred immediately after such termination.
