<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1994
REGISTRATION NO.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUN COMPANY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
PENNSYLVANIA 23-1743282
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
TEN PENN CENTER, 1801 MARKET STREET,
PHILADELPHIA, PENNSYLVANIA 19103-1699 (215) 977-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
RICHARD L. CARTLIDGE, SUN COMPANY, INC. TEN PENN CENTER,
1801 MARKET STREET, PHILADELPHIA, PENNSYLVANIA 19103-1699
(215) 977-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
JOHN B. TEHAN, ESQ., SIMPSON THACHER & BARTLETT,
425 LEXINGTON AVENUE, NEW YORK, NEW YORK 10017
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER UNIT(2) PRICE(3) FEE(2)
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities........
- ------------------------
Preference Stock....... $700,000,000 $700,000,000 $241,381
- ------------------------
Common Stock,
$1 par value per
share.................
- ------------------------
Warrants...............
- ------------------------
</TABLE>
- --------------------------------------------------------------------------------
(1) The amount to be registered consists of up to $700,000,000 in U.S. dollars
or the equivalent in foreign currency or currency units market value of
Debt Securities, Preference Stock, Common Stock and Warrants.
(2) The maximum offering price per unit has been omitted pursuant to Securities
Act Release No. 6964. The registration fee has been calculated in
accordance with Rule 457(o) under the Securities Act of 1933 and reflects
the offering price rather than the principal amount of any Debt Securities
issued at a discount.
(3) Estimated solely for the purpose of calculating the registration fee.
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION BECOMES +
+EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE +
+SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion Dated May 20, 1994
PROSPECTUS
SUN COMPANY, INC.
DEBT SECURITIES
PREFERENCE STOCK
COMMON STOCK
WARRANTS
Sun Company, Inc. (the "Company") from time to time may offer one or more
series of its unsecured debt securities (the "Debt Securities"), its Cumulative
Preference Stock (the "Preference Stock"), its Common Stock, $1 par value (the
"Common Stock" and together with the Preference Stock, the "Equity
Securities"), warrants to purchase the Debt Securities or Equity Securities
(the "Warrants") or any combination of the foregoing. The aggregate offering
price of the Debt Securities, the Equity Securities, and the Warrants offered
hereby (the "Securities") will not exceed $700,000,000 (or the equivalent
thereof if Debt Securities are denominated in foreign currencies or foreign
currency units). The Securities may be offered as separate series or in units
with other Securities in amounts, at prices and with terms to be determined at
or prior to the time of sale.
The specific terms of the Securities being offered will be set forth in an
accompanying Prospectus Supplement (the "Prospectus Supplement"), together with
the terms of the offering of the Securities, the initial offering price and the
net proceeds to the Company from the sale thereof. The Prospectus Supplement
will set forth, among other matters, the following: (1) in the case of Debt
Securities, the specific designation, aggregate principal amount, ranking as
senior debt (the "Senior Debt Securities") or subordinated debt (the
"Subordinated Debt Securities"), authorized denominations, maturity, rate or
method for calculation of interest and dates for the payment thereof, any
conversion, redemption, prepayment or sinking fund provisions, and the
currency, currencies or currency units in which principal, premium, if any, or
interest, if any, is payable; (2) in the case of Preference Stock, the
designation, number of shares offered, stated value, liquidation preference,
dividend rate (or method of calculation thereof), dates on which dividends are
to be payable and dates from which dividends shall accrue, any redemption or
sinking fund provisions, voting rights and any conversion or exchange features;
(3) in the case of Common Stock, the number of shares offered and the terms of
the offering and sale thereof; (4) in the case of Warrants, the designation,
number of Warrants offered, number or principal amount of Securities issuable
upon exercise, exercise price and, where applicable, the duration and
detachability of the Warrants; and (5) in the case of all Securities, whether
they are being sold separately or as a unit with other Securities. The
Prospectus Supplement will also contain information, where applicable, about
certain United States Federal income tax considerations relating to, and any
listing on a securities exchange of, the Securities covered by the Prospectus
Supplement.
The Company may sell the Securities to or through underwriters or directly to
purchasers, agents, dealers or through brokers. The names of underwriters,
dealers, or agents, if any, will be identified in the Prospectus Supplement.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE AC-
CURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1994.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's Regional Offices at Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and
7 World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained at prescribed rates from the Commission's Public
Reference Section, 450 Fifth Street, N.W., Washington, D.C. 20549. Reports,
proxy material and other information concerning the Company also may be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005 and the Philadelphia Stock Exchange, Inc., 1900 Market
Street, Philadelphia, Pennsylvania 19103.
The Company has filed with the Commission a registration statement on Form S-
3 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Securities offered hereby (together with all amendments and
exhibits, the "Registration Statement"). This Prospectus does not contain all
of the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, as amended by the Company's report on Form 10-K/A dated
April 28, 1994.
2. The Company's Current Report on Form 8-K dated February 24, 1994.
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering made hereunder shall be deemed to be incorporated
by reference into this Prospectus and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL
REQUEST, A COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE
(OTHER THAN EXHIBITS TO SUCH DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY
INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS). REQUESTS SHOULD BE DIRECTED TO:
SUN COMPANY, INC.
TEN PENN CENTER
1801 MARKET STREET
PHILADELPHIA, PENNSYLVANIA 19103-1699
ATTENTION: SHAREHOLDER RELATIONS
TELEPHONE: (215) 977-3000
2
<PAGE>
THE COMPANY
The Company was incorporated in Pennsylvania in 1971 and it or its
predecessors have been active in the petroleum industry since 1886. Its
principal executive offices are located at Ten Penn Center, 1801 Market Street,
Philadelphia, PA 19103-1699.
The Company, through its subsidiaries, is principally a petroleum refiner and
marketer with interests in oil and gas exploration and production and oil sands
mining. Hereafter, the term "Sun" means the Company and its subsidiaries.
Sun's petroleum refining and marketing operations include the manufacturing
and marketing of a full range of petroleum products, including fuels,
lubricants and petrochemicals, and the transportation of crude oil and refined
products. These operations are conducted in the United States and Canada. Sun's
oil and gas exploration and production operations consist of exploration for
and development, production and marketing of crude oil and condensate, natural
gas and natural gas liquids. Exploration activities are conducted in Canada
while development, production and marketing activities are conducted primarily
in Canada and the United Kingdom sector of the North Sea. Oil sands mining
operations, which consist of production of synthetic crude oil by mining oil
sands and upgrading the bitumen extracted from the oil sands, are conducted in
western Canada.
Sun also has interests in coal, real estate and leasing operations in the
United States. Each of these businesses is subject to a plan of disposition
which management is actively pursuing.
USE OF PROCEEDS
The net proceeds from the sale of the Securities will be added to the general
funds of Sun and used for general corporate purposes, including working capital
and capital expenditures. The proceeds may also be used to repay indebtedness
of Sun.
SUMMARY OF FINANCIAL INFORMATION
The following table represents selected financial data of Sun for each of the
five years in the period ended December 31, 1993. Reference is made to the
detailed information and financial statements available in the documents
described above under "Incorporation of Certain Documents by Reference." Prior
to the fourth quarter of 1993, Sun Coal Company and Elk River Resources, Inc.
and its subsidiaries (collectively, "Sun Coal") and Radnor Corporation
("Radnor") had been classified as discontinued operations in Sun's consolidated
statements of income. In accordance therewith, results of operations of Sun
Coal and Radnor subsequent to their measurement dates of December 31, 1992 and
September 30, 1991, respectively, had been excluded from the consolidated
statements of income. In November 1993, the Commission issued Staff Accounting
Bulletin No. 93 which requires discontinued operations that have not been
divested within one year of their measurement dates to be accounted for
prospectively as investments held for sale. As a result, the results of
operations for Sun Coal and Radnor for the fourth quarter of 1993 have been
included in income from continuing operations. In addition, the net assets and
liabilities relating to Sun Coal and Radnor have been segregated on the
consolidated balance sheets from their historic classifications to separately
identify them as investments in operations held for sale. The following
financial data reflects this method of presentation.
3
<PAGE>
<TABLE>
<CAPTION>
1993 1992 1991 1990 1989
------ ------- ------- ------- -------
(MILLIONS OF DOLLARS EXCEPT RATIOS)
<S> <C> <C> <C> <C> <C>
FOR THE YEAR ENDED DECEMBER 31:
Sales and other operating revenue (including
consumer excise taxes)........................ $9,180 $10,445 $11,493 $12,573 $10,494
Income (loss) from continuing operations
before provision (credit) for income taxes
and cumulative effect of change in
accounting principle(1)....................... $ 426(2) $ (432)(3) $ (108)(4) $ 393 $ 236
Net income (loss)(1)(5)(6)...................... $ 288(2) $ (559)(3) $ (387)(4) $ 229 $ 98
Ratio of earnings to fixed charges(7)........... 5.14 N/A N/A 3.91 2.59
AT DECEMBER 31:
Total assets.................................... $5,900 $ 6,071 $ 7,017 $ 7,852 $ 7,647
Long-term debt.................................. $ 726 $ 792 $ 852 $ 832 $ 887
Stockholders' equity............................ $1,984 $ 1,896 $ 2,696 $ 3,274 $ 3,254
</TABLE>
- --------
(1) Includes impact of provisions for write-down of assets and other matters of
$23 million ($12 million after tax) in 1993, $745 million ($456 million
after tax) in 1992, $156 million ($103 million after tax) in 1991 and $162
million ($103 million after tax) in 1989. (See Note 2 to the Consolidated
Financial Statements in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993, as amended, incorporated by reference
herein.)
(2) Includes impact of gain on divestments of $174 million ($121 million after
tax).
(3) Includes impact of gain on Iranian litigation settlement of $178 million
($117 million after tax).
(4) Includes impact of provision for environmental remediation work at various
domestic refining and marketing sites of $118 million ($78 million after
tax).
(5) Includes income (loss) from operations held for sale of $3, $19, $(257), $9
and $(12) million in 1993, 1992, 1991, 1990 and 1989, respectively. (See
Note 2 to the Consolidated Financial Statements in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1993, as
amended, incorporated by reference herein.)
(6) Includes impact of the cumulative effect of a change: in the method of
accounting for income taxes in 1993 ($5 million tax benefit); in the method
of accounting for postretirement health care and life insurance benefits in
1992 ($261 million after-tax charge); and in the method of accounting for
refinery turnaround costs in 1990 ($30 million after-tax benefit). (See
Note 7 to the Consolidated Financial Statements in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1993, as
amended, incorporated by reference herein.)
(7) The ratio of earnings to fixed charges has been computed using principally
pretax earnings from continuing operations before the cumulative effect of
a change in accounting principle and before deducting fixed charges. Fixed
charges are comprised of interest cost and debt expense of continuing
operations (including amounts capitalized) and one-third of rental expense
applicable to operating leases (which is that portion deemed to be
interest). For 1992 and 1991, earnings were inadequate to cover fixed
charges by $454 million and $76 million, respectively, as a result of the
$745 million and $156 million provisions for write-down of assets and other
matters.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities will be either Senior Debt Securities or Subordinated
Debt Securities and may be issued as convertible Debt Securities. The Senior
Debt Securities will be issued under an Indenture dated as of May 15, 1994 (the
"Senior Indenture") between the Company and Citibank, N.A., Trustee (the
"Senior Trustee"). The Subordinated Debt Securities will be issued under an
Indenture dated as of May 15, 1994 (the "Subordinated Indenture") between the
Company and Bankers Trust Company, Trustee
4
<PAGE>
(the "Subordinated Trustee"). The Senior Indenture and the Subordinated
Indenture are sometimes hereinafter collectively referred to as the
"Indentures." The Senior Trustee and the Subordinated Trustee are sometimes
hereinafter collectively referred to as the "Trustees." References set forth in
the following description of Debt Securities are to sections of both Indentures
unless otherwise indicated. The following description summarizes certain
general terms and provisions of the Debt Securities, is not complete and is
qualified in its entirety by reference to all of the provisions of the
Indentures, including the definitions therein of certain terms. Copies of the
Indentures have been filed as exhibits to the Registration Statement.
Capitalized terms used below but not defined have the meanings assigned in the
Indentures. Further terms of the Debt Securities will be set forth in the
Prospectus Supplement.
GENERAL
The Debt Securities will be direct, unsecured obligations of the Company. The
particular terms of the Debt Securities being offered (the "Offered Debt
Securities"), any modifications of or additions to the general terms of the
Debt Securities as described herein that may be applicable in the case of the
Offered Debt Securities and any applicable Federal income tax considerations
will be described in the Prospectus Supplement relating to the Offered Debt
Securities, which may include the following:
(1) the title of the Offered Debt Securities;
(2) the aggregate principal amount of the Offered Debt Securities;
(3) the date or dates on which or periods during which the Offered Debt
Securities of a series may be issued, or the method by which such date or
dates will be determined, on which the principal of (and premium, if any,
on) such Offered Debt Securities will be payable;
(4) the rate or rates at which the Offered Debt Securities will bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest, if any, shall
accrue or the method by which such date or dates shall be determined, the
interest payment dates on which such interest shall be payable and, in the
case of Registered Securities, the regular record dates, if any, for the
interest payable on such interest payment dates, and, in the case of
floating rate securities, the notice, if any, to Holders regarding the
determination of interest and the manner of giving such notice;
(5) the place or places, if any, in addition to or instead of the
corporate trust office of the applicable Trustee (in the case of Registered
Securities) or the principal London office of the applicable Trustee (in
the case of Bearer Securities), where the principal of (and premium, if
any) and interest, if any, on the Offered Debt Securities shall be payable,
the extent to which, or the manner in which, any interest payable on any
Global Security on an interest payment date will be paid, and the manner in
which any principal of, or premium, if any, on any Global Security on an
interest payment date will be paid;
(6) any mandatory or optional sinking fund or purchase fund or analogous
provisions;
(7) the period or periods within which, the price or prices at which, and
the terms and conditions upon which the Offered Debt Securities of the
series may be redeemed pursuant to any optional or mandatory redemption
provisions;
(8) any terms pursuant to which the Offered Debt Securities may be
convertible into Debt Securities or Equity Securities;
(9) if the Offered Debt Securities of the series are denominated or
payable in a foreign currency, any other terms concerning the payment of
principal of (and premium, if any) or any interest on the Offered Debt
Securities (including the currency or currencies of payment thereof);
(10) whether the Offered Debt Securities are to be issued in whole or in
part in the form of one or more Global Securities and, if so, the
depositary or any common depositary for such Global Securities, and if the
Offered Debt Securities of the series are issuable only as Registered
Securities;
(11) the terms and conditions, if any, upon which any Global Securities
may be exchanged in whole or in part for other definitive Offered Debt
Securities;
5
<PAGE>
(12) if Bearer Securities are to be issued, (x) whether interest in
respect of any portion of a temporary Offered Debt Security in global form
(representing all of the Outstanding Bearer Securities of the series)
payable in respect of any interest payment date prior to the exchange of
such temporary Offered Debt Security for definitive Offered Debt Securities
of the series shall be paid to any clearing organization with respect to
the portion of such temporary Offered Debt Security held for its account
and, in such event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a clearing
organization will be credited to the Persons entitled to interest payable
on such interest payment date, and (y) the terms upon which interests in
such temporary Offered Debt Security in global form may be exchanged for
interests in a permanent Global Security or for definitive Offered Debt
Securities of the series and the terms upon which interests in a permanent
Global Security, if any, may be exchanged for definitive Offered Debt
Securities of the series;
(13) any index used to determine the amount of payment of principal or
any premium or interest, if any, on the Offered Debt Securities;
(14) the application, if any, of the defeasance provisions to the Offered
Debt Securities;
(15) whether the Offered Debt Securities of the series are to be issued
as original issue discount securities ("Discount Securities") and the
amount of discount at which such Offered Debt Securities may be issued and,
if other than the principal amount thereof, the portion of the principal
amount of the Offered Debt Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof upon an Event of
Default;
(16) whether Offered Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and if Bearer
Securities are issued, whether any interest coupons appertaining thereto
("Coupons") will be attached thereto, whether Bearer Securities of the
series may be exchanged for Registered Securities of the series and the
circumstances under which and the place or places at which any such
exchanges, if permitted, may be made; and
(17) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued, the
applicable procedures and certificates relating to the exchange of
temporary Global Securities for definitive Bearer Securities;
(18) if other than U.S. dollars, the currency, currencies or currency
units (the term "currency" as used herein will include currency units) in
which the Offered Debt Securities of the series shall be denominated or in
which payment of the principal of (and premium, if any) and interest on the
Offered Debt Securities of the series may be made, and the particular
provisions applicable thereto;
(19) if the principal of (and premium, if any) or interest on Offered
Debt Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency other than that in which the
Offered Debt Securities are denominated or payable without such election,
in addition to or in lieu of the applicable provisions of the Indentures,
the period or periods within which and the terms and conditions upon which,
such election may be made and the time and the manner of determining the
exchange rate or rates between the currency or currencies in which the
Offered Debt Securities are denominated or payable without such election
and the currency or currencies in which the Offered Debt Securities are to
be paid if such election is made;
(20) the date as of which any Offered Debt Securities of the series shall
be dated; and
(21) any other terms of the Offered Debt Securities.
The Indentures do not limit the aggregate principal amount of Debt Securities
which may be issued thereunder. The Debt Securities may be issued from time to
time in one or more series as authorized from time to time by the Board of
Directors of the Company or by any duly authorized officer. (Section 3.01)
In the event that Discount Securities are issued, the Federal income tax
consequences and other special considerations applicable to such Discount
Securities will be described in the Prospectus Supplement relating thereto.
6
<PAGE>
All of the Debt Securities of a series need not be issued at the same time,
and may vary as to interest rate, maturity and other provisions and unless
otherwise provided, a series may be reopened for issuance of additional Debt
Securities of such series. (Section 3.01)
The Offered Debt Securities of any series may be issued in definitive form
or, if so indicated in the Prospectus Supplement, may be represented in whole
or in part by a global security or securities ("Global Securities"), registered
in the name of a depositary designated by the Company. Each Debt Security
represented by a Global Security is referred to herein as a "Book-Entry
Security." Except with respect to Book-Entry Securities, Debt Securities may be
presented for exchange or registration of transfer, in the manner, at the
places and subject to the restrictions set forth in the Debt Securities and the
Prospectus Supplement.
SENIOR DEBT SECURITIES
Senior Debt Securities will rank equally with all other unsecured debt of the
Company other than Subordinated Debt Securities or other indebtedness which is
by its terms subordinated to the Senior Debt Securities.
SUBORDINATED DEBT SECURITIES
Subordinated Debt Securities will be subordinate and junior in the right of
payment, to the extent and in the manner set forth in the Subordinated
Indenture, to all present or future Senior Indebtedness. "Senior Indebtedness"
is defined as (a) indebtedness of the Company for money borrowed and (b)
renewals, extensions, and modifications of such indebtedness, unless in any
case it is provided that the particular indebtedness, renewal, extension or
modification is not Senior Indebtedness. (Subordinated Indenture Section 1.01)
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Debt Securities, the accompanying Prospectus Supplement
or the information incorporated therein by reference will set forth the
approximate amount of Senior Indebtedness outstanding as of a recent date.
Upon any distribution of assets of the Company upon the dissolution, winding
up, liquidation or reorganization of the Company, the payment of the principal
of and premium, if any, and interest on the Subordinated Debt Securities will
be subordinated to the extent provided in the Subordinated Indenture in right
of payment to the prior payment in full of all Senior Indebtedness, including
Senior Debt Securities (Sections 16.01 and 16.02 of the Subordinated
Indenture), but the obligation of the Company to make payment of principal and
premium, if any, or interest on the Subordinated Debt Securities will not
otherwise be affected. (Section 16.02 of the Subordinated Indenture) In the
event that any payment on account of principal, premium, if any, sinking fund
or interest made by the Company on the Subordinated Debt Securities at any time
when there is a default in the payment of principal, premium, if any, sinking
fund or interest on Senior Indebtedness is received by the Trustee under the
Subordinated Indenture or the Holders of any of the Subordinated Debt
Securities before all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over to the holders of such Senior Indebtedness or
on their behalf for application to the payment of all such Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness. Subject to payment in full of Senior
Indebtedness, the Holders of the Subordinated Debt Securities will be
subrogated to the rights of the holders of the Senior Indebtedness to the
extent of payments made to the holders of such Senior Indebtedness out of the
distributive share of the Subordinated Debt Securities. (Section 16.02 of the
Subordinated Indenture)
By reason of such subordination, in the event of a distribution of assets
upon insolvency, certain general creditors of the Company may recover more,
ratably, than Holders of the Subordinated Debt Securities. The Subordinated
Indenture provides that the subordination provisions thereof shall not apply to
money and securities held in trusts pursuant to the satisfaction and discharge
and the legal defeasance provisions of the Subordinated Indenture. (Sections
4.02 and 15.02 of the Subordinated Indenture)
7
<PAGE>
CONVERTIBLE DEBT SECURITIES
Debt Securities issued under either the Senior Indenture or the Subordinated
Indenture may provide for a right of conversion into Equity Securities. The
terms and conditions, if any, on which the Debt Securities being offered are
convertible into Equity Securities will be set forth in the Prospectus
Supplement relating thereto. Such terms will include the Equity Securities into
which such Debt Securities are convertible, the conversion price, the
conversion period, provisions as to whether conversion will be at the option of
the Holder or the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of
such Debt Securities.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in the Prospectus Supplement, the Offered Debt
Securities of any series shall be issuable only as Registered Securities in
denominations of $1,000 and any integral multiple thereof and shall be payable
only in U.S. dollars. (Section 3.02) The Indentures also provide that Debt
Securities of a series may be issuable in global form. See "Global Securities."
Unless otherwise indicated in the Prospectus Supplement, Bearer Securities will
have Coupons attached. (Section 2.01)
Registered Securities of any series will be exchangeable for other Registered
Securities of the same series of like principal amount and of like Stated
Maturity and with like terms and conditions. If so provided in the Prospectus
Supplement, at the option of the Holder thereof, to the extent permitted by
law, any Bearer Security of any series which by its terms is registrable as to
principal and interest may be exchanged for a Registered Security of such
series of like aggregate principal amount and of a like Stated Maturity and
with like terms and conditions, upon surrender of such Bearer Security at the
corporate trust office of the applicable Trustee or at any other office or
agency of the Company designated for the purpose of making any such exchanges.
Subject to certain exceptions, any Bearer Security issued with Coupons
surrendered for exchange must be surrendered with all unmatured Coupons and any
matured Coupons in default attached thereto. (Section 3.05)
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange. (Section 3.05)
Except as specified in the Prospectus Supplement, in no event may Registered
Securities, including Registered Securities received in exchange for Bearer
Securities, be exchanged for Bearer Securities. (Section 3.05)
Upon surrender for registration of transfer of any Registered Security of any
series at the office or agency of the Company maintained for such purpose, the
Company shall deliver, in the name of the designated transferee, one or more
new Registered Securities of the same series of like aggregate principal amount
of such denominations as are authorized for Registered Securities of such
series and of a like Stated Maturity and with the same terms and conditions. No
service charge will be made for any transfer or exchange of Debt Securities,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith. (Section 3.05)
The Company shall not be required (i) to register, transfer or exchange Debt
Securities of any series during a period beginning at the opening of 15
business days before the day of the transmission of a notice of redemption of
Debt Securities of such series selected for redemption and ending at the close
of business on the day of such transmission, or (ii) to register, transfer or
exchange any Debt Security so selected for redemption in whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
(Section 3.05)
8
<PAGE>
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in global
form that will be deposited with, or on behalf of, a depositary identified in
the Prospectus Supplement. Global Securities may be issued in either registered
or bearer form and in either temporary or permanent form (each a "Global
Security"). Payments of principal of (premium, if any) and interest on Debt
Securities represented by a Global Security will be made by the Company to the
applicable Trustee and then by such Trustee to the depositary.
The Company anticipates that any Global Securities will be deposited with, or
on behalf of, The Depository Trust Company, New York, New York ("DTC"), that
such Global Securities will be registered in the name of DTC's nominee, and
that the following provisions will apply to the depositary arrangements with
respect to any such Global Securities. Additional or differing terms of the
depositary arrangements will be described in the Prospectus Supplement relating
to a particular series of Debt Securities issued in the form of Global
Securities.
So long as DTC or its nominee is the registered owner of a Global Security,
DTC or its nominee, as the case may be, will be considered the sole Holder of
the Debt Securities represented by such Global Security for all purposes under
the applicable Indenture. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities in certificated
form and will not be considered the owners or Holders thereof under the
applicable Indenture. The laws of some states require that certain purchasers
of securities take physical delivery of such securities in certificated form;
accordingly, such laws may limit the transferability of beneficial interests in
a Global Security.
If DTC is at any time unwilling or unable to continue as depositary and a
successor depositary is not appointed by the Company within 90 days, the
Company will issue individual Debt Securities in certificated form in exchange
for the Global Securities. In addition, the Company may at any time, and in its
sole discretion, determine not to have any Debt Securities represented by one
or more Global Securities and, in such event, will issue individual Debt
Securities in certificated form in exchange for the relevant Global Securities.
If Registered Securities of any series shall have been issued in the form of
one or more Global Securities and, if an Event of Default with respect to the
Debt Securities of such series shall have occurred and be continuing, the
Company will issue individual Debt Securities in certificated form in exchange
for the relevant Global Securities.
The following is based on information furnished by DTC:
DTC may act as securities depositary for certain of the Debt Securities. The
Debt Securities for which DTC acts as depositary will be issued as Registered
Securities registered in the name of Cede & Co. (DTC's partnership nominee).
One fully registered Debt Security certificate is issued with respect to each
$150 million of principal amount of the Debt Securities of a series, and an
additional certificate will be issued with respect to any remaining principal
amount of such series.
DTC is a limited-purpose trust company organized under the Banking Law of the
State of New York, a "banking organization" within the meaning of the Banking
Law of the State of New York, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations ("Direct Participants"). DTC is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through
9
<PAGE>
or maintain a custodial relationship with a Direct Participant, either directly
or indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchase of Debt Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Debt Securities on
DTC's records. The ownership interest of each actual purchaser of each Debt
Security ("Beneficial Owner") is in turn recorded on the Direct and Indirect
Participants' records. A Beneficial Owner does not receive written confirmation
from DTC of its purchase, but such Beneficial Owner is expected to receive
written confirmation providing details of the transaction, as well as periodic
statements of its holdings, from the Direct or Indirect Participant through
which such Beneficial Owner entered into the transaction. Transfers of
ownership interests in Debt Securities are accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
do not receive certificates representing their ownership interests in Debt
Securities, except in the event that use of the book-entry system for the Debt
Securities is discontinued.
To facilitate subsequent transfers, the Debt Securities are registered in the
name of DTC's partnership nominee, Cede & Co. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co., effects
no change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Debt Securities; DTC records reflect only the identity
of the Direct Participants to whose accounts Debt Securities are credited,
which may or may not be the Beneficial Owners. The Participants remain
responsible for keeping account of their holdings on behalf of their customers.
Delivery of notices and other communications by DTC to Direct Participants,
by Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners is governed by arrangements among
them, subject to any statutory or regulatory requirements as may be in effect
from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus Proxy")
to the issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants
to whose accounts the Debt Securities are credited on the record date
(identified on a list attached to the Omnibus Proxy).
Principal and interest payments on the Debt Securities for which DTC acts as
depositary will be made to DTC. DTC's practice is to credit Direct
Participants' accounts on the payable date in accordance with their respective
holdings as shown on DTC's records unless DTC has reason to believe that it
will not receive payment on the payable date. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, the Paying Agent or the Company, subject to
any statutory or regulatory requirements as may be in effect from time to time.
Payment of principal and interest to DTC is the responsibility of the Company
or the Paying Agent, disbursement of such payments to Direct Participants is
the responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depositary with
respect to the Debt Securities at any time by giving reasonable notice to the
Company or the Paying Agent. Under such circumstances, in the event that a
successor securities depositary is not appointed by the Company within 90 days,
the Company will issue individual Debt Securities in certificated form in
exchange for the Global Securities.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary). In that event,
the Company will issue individual Debt Securities in certificated form in
exchange for the Global Securities.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
10
<PAGE>
Unless stated otherwise in the Prospectus Supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global Securities
will be Direct Participants in DTC.
None of the Company, any underwriter or agent, the applicable Trustee or any
applicable Paying Agent will have the responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
interests in a Global Security, or for maintaining, supervising or reviewing
any records relating to such beneficial interests.
CERTAIN RESTRICTIVE COVENANTS IN THE SENIOR INDENTURE
Limitations on Liens
Nothing in either Indenture or the Debt Securities in any way restricts or
prevents the Company or any Subsidiary from incurring any indebtedness.
However, the Senior Indenture provides that neither the Company nor any
Restricted Domestic Subsidiary will issue, assume or guarantee any notes,
bonds, debentures or other similar evidences of indebtedness for money borrowed
("Debt") secured by mortgage, lien, pledge or other encumbrance upon any
Restricted Property without effectively providing that the Senior Debt
Securities of all series (excluding any series of Debt Securities with respect
to which the property securing such Debt is not Restricted Property, but
including, if the Company so determines, any other indebtedness or obligation
then existing or thereafter created, ranking equally with the Senior Debt
Securities of all series) shall be secured equally and ratably with (or prior
to) such Debt so long as such Debt shall be so secured. This restriction does
not, however, apply to (a) mortgages, liens, pledges or other encumbrances
("Mortgages") on property to secure all or part of the cost of exploration,
drilling or development thereof or all or part of the cost of altering or
repairing equipment used in connection therewith or the cost of improvement of
property which, in the opinion of the Board of Directors, is substantially
unimproved for the use intended by the Company or to secure Debt incurred to
provide funds for any such purpose; (b) Mortgages which secure only
indebtedness owing by a Subsidiary to the Company, or to one or more
Subsidiaries, or to the Company and one or more Subsidiaries; (c) Mortgages on
the property of any corporation existing at the time such corporation becomes a
Subsidiary; (d) Mortgages on any property to secure Debt or other indebtedness
incurred in connection with the construction, installation or financing of
pollution control or abatement facilities or other forms of industrial revenue
bond financing or Debt issued or guaranteed by the United States, any State or
any department, agency or instrumentality of either; and (e) any extension,
renewal or replacement of any Mortgage referred to in the foregoing clauses (a)
through (d) or, with respect to the Debt Securities of any series, of any
Mortgage existing on the date Debt Securities of such series are first issued.
Notwithstanding the foregoing, the Company and any one or more Restricted
Domestic Subsidiaries may, without securing the Senior Debt Securities of all
series, issue, assume or guarantee Debt secured by Mortgages which would
otherwise be subject to the foregoing restrictions in an aggregate principal
amount which, together with all other such Debt of the Company and its
Restricted Domestic Subsidiaries, and the aggregate value of sale and lease-
back transactions which would otherwise be subject to the restrictions
described under "Limitation on Sale and Lease-Back Transactions," does not at
the time such Debt is incurred exceed five percent (5%) of the Stockholders'
Equity in the Company and its consolidated subsidiary companies as shown in the
audited consolidated balance sheet contained in the latest Annual Report to
Shareholders. The following types of transactions, among others, are not deemed
to create Debt secured by Mortgages: (1) the sale or other transfer of crude
oil, natural gas or other petroleum hydrocarbons in place for a period of time
until, or in an amount such that, the transferee will realize therefrom a
specified amount (however determined) of money or such crude oil, natural gas
or other petroleum hydrocarbons, or the sale or other transfer of any other
interest in property of the character commonly referred to as a production
payment or overriding royalty, and (2) Mortgages required by any contract or
statute in order to permit the Company or a Subsidiary to perform any contract
or subcontract made by it with or at the request of the United States, any
State or any department, agency or instrumentality of either, or to secure
partial, progress, advance or other payments to the Company or any Subsidiary
by such governmental unit pursuant to the provisions of any contract or
statute. (Senior Indenture Section 12.07)
11
<PAGE>
The Senior Indenture contains no limitations on Mortgages on property
presently owned which is not Restricted Property or, with respect to any series
of Debt Securities, property acquired or constructed after the date Debt
Securities of such series are first issued (the "Series Issuance Date"). The
term Restricted Property is defined in the Senior Indenture separately with
respect to each series of Debt Securities to mean any property interest owned
by the Company or a Subsidiary on the Series Issuance Date in land located in
the continental United States and then classified by such owner as productive
of crude oil, natural gas or other petroleum hydrocarbons in paying quantities,
any refining plant or manufacturing plant owned by the Company or a Subsidiary
on the Series Issuance Date and located in the continental United States
(except related facilities which in the opinion of the Board of Directors are
transportation or marketing facilities, and a refining plant or manufacturing
plant which in the opinion of the Board of Directors is not a principal plant
of the Company and its Subsidiaries) and any shares of capital stock,
partnership interests or indebtedness of a Restricted Domestic Subsidiary. The
term Restricted Property with respect to any series of Debt Securities does not
include future additions or improvements to or replacements of all or any part
of any refining or manufacturing plant owned on the Series Issuance Date. The
term Restricted Domestic Subsidiary is defined in the Indenture to mean any
Subsidiary of the Company (other than Sun Ship, Inc.) which owns Restricted
Property except a Subsidiary substantially all the real property, plants and
equipment of which are located outside the continental United States, a
Subsidiary the assets of which constitute less than five percent (5%) of the
assets of the Company and its consolidated subsidiaries, and a Subsidiary the
major part of the business of which consists of finance, banking, credit,
leasing, real estate, financial services or other similar operations, coal
operations, or any combination thereof. The term Subsidiary is defined in the
Senior Indenture to include any corporation more than 50% of the outstanding
voting stock of which is owned directly or indirectly by the Company or by one
or more Subsidiaries thereof, or by the Company and one or more Subsidiaries.
For purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency. (Senior Indenture Section 1.01)
Limitation on Sale and Lease-Back Transactions
The Senior Indenture provides that neither the Company nor any Restricted
Domestic Subsidiary will enter into any arrangement with any person providing
for the leasing of any Restricted Property which has been or is to be sold or
transferred by the Company or such Restricted Domestic Subsidiary to such
person or to any other person to which funds have been or are to be advanced by
such person on the security of the leased property to the Company or a
Restricted Domestic Subsidiary for a period of more than three years unless
either (a) the Company or such Restricted Domestic Subsidiary would be
entitled, pursuant to the above provisions, to incur Debt in a principal amount
equal to or exceeding the value of such sale and lease-back transactions
secured by a Mortgage on the property to be leased without equally and ratably
securing all series of the Senior Debt Securities with respect to which such
property is Restricted Property, or (b) the Company during or immediately after
the expiration of four months after the effective date of such transaction
applies to the voluntary retirement of its funded debt an amount (less certain
credits set forth in the Indenture) equal to the greater of the net proceeds of
the sale or transfer of the property leased in such transaction or the fair
value in the opinion of the Board of Directors of the property at the time of
entering into such transaction. (Senior Indenture Section 12.08)
The Senior Indenture contains no limitations on the sale and lease-back of
any property presently owned which is not Restricted Property or, with respect
to any series of Debt Securities, property acquired or constructed after the
Series Issuance Date.
WAIVER OF COMPLIANCE WITH COVENANTS
The Company may omit in any particular instance to comply with certain
covenants in the Indentures (including, if so specified in the Prospectus
Supplement, any covenant not set forth in the Indentures but specified in the
Prospectus Supplement to be applicable to the Debt Securities of any series,
except as otherwise provided in the Prospectus Supplement, and in the case of
the Senior Indenture, the covenants relating to the limitation on liens and the
limitation on sale and lease-back transactions) with respect to the
12
<PAGE>
Debt Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Debt
Securities of such series either waive such compliance in such instance or
generally waive compliance with such provisions, but no such waiver may extend
to or affect any term, provision or condition except to the extent expressly so
waived, and, until such waiver becomes effective, the obligations of the
Company and the duties of the applicable Trustee in respect of any such
provision will remain in full force and effect. (Senior Indenture Section 12.09
and Subordinated Indenture Section 12.07)
EVENTS OF DEFAULT
The following are Events of Default under each Indenture with respect to Debt
Securities of any series issued thereunder: (a) failure to pay principal of or
any premium on any Debt Security of that series when due; (b) failure to pay
any interest on any Debt Security of that series when due, continued for 30
days; (c) failure to perform any other covenant of the Company in the Indenture
(other than a covenant included in the Indenture solely for the benefit of
series of Debt Securities other than that series), continued for 90 days after
there has been given to the Company by the applicable Trustee or to the Company
and the applicable Trustee by the Holders of at least 25% in principal amount
of the Outstanding Debt Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied; (d) acceleration of
Debt Securities of another series or any other indebtedness for borrowed money
of the Company, in an aggregate principal amount exceeding $10,000,000 under
the terms of the instrument or instruments under which such indebtedness is
issued or secured, if such acceleration is not annulled within 30 days after
written notice as provided in the Indenture; (e) certain events in bankruptcy,
insolvency or reorganization involving the Company; and (f) any other Event of
Default provided with respect to Debt Securities of the series. (Section 5.01)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt Securities of
that series are Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all the Debt Securities of
that series to be due and payable immediately. At any time after a declaration
of acceleration with respect to Debt Securities of any series has been made,
but before a judgment or decree based on acceleration has been obtained, the
Holders of a majority in aggregate principal amount of Outstanding Debt
Securities of that series may, under certain circumstances, rescind and annul
such acceleration. (Section 5.02)
Each Indenture provides that, subject to the duty of the applicable Trustee
during a default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Indenture
at the request or direction of any of the Holders unless such holders shall
have offered to the Trustee reasonable indemnity. (Section 6.03) Subject to
such provisions for the indemnification of the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Debt Securities of that series. (Section 5.12)
Each Indenture requires the Company to furnish to the applicable Trustee
annually a statement as to the performance by the Company of certain of its
obligations under such Indenture and as to any default in such performance.
(Section 12.02)
MODIFICATION AND WAIVER
Modifications and amendments of either Indenture may be made by the Company
and the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of each series affected by
such modifications or amendments; provided, however, that no such modification
or amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby, (a) change the stated maturity date of the principal
of, or any installment of principal of, or premium or interest, if any, on any
Debt Security; (b) reduce the principal amount of or premium or interest, if
any, on any Debt
13
<PAGE>
Security; (c) reduce the amount of principal of a Discount Security payable
upon acceleration of the maturity thereof; (d) change the currency of payment
of principal of or premium or interest, if any, on any Debt Security; (e)
impair the right to institute suit for the enforcement of any payment on or
with respect to any Debt Security; (f) reduce the percentage in principal
amount of Outstanding Debt Securities of any series, the consent of whose
Holders is required for modification or amendment of such Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults; or (g) limit any obligation of the Company to maintain a
paying agency outside the United States pursuant to Section 12.03. (Section
11.02)
The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of each series may, on behalf of all Holders of Debt Securities
of that series, waive, insofar as that series is concerned, compliance by the
Company with certain restrictive provisions of the applicable Indenture.
(Senior Indenture Section 12.09 and Subordinated Indenture Section 12.07) The
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of each series may, on behalf of all Holders of Debt Securities of
that series, waive any past default under the Indenture with respect to Debt
Securities of that series, except (i) a default in the payment of principal or
of premium or interest, if any, or (ii) in respect of a covenant or provision
of the applicable Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected. (Section 5.13)
DISCHARGE, LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The applicable Indenture with respect to the Debt Securities of any series
may be discharged, subject to certain terms and conditions, when (1) either (A)
all Debt Securities and the Coupons, if any, of such series have been delivered
to the applicable Trustee for cancellation, or (B) all Debt Securities and the
Coupons, if any, of such series not theretofore delivered to the applicable
Trustee for cancellation (i) have become due and payable, (ii) will become due
and payable at their Stated Maturity within one year or (iii) are to be called
for redemption within one year under arrangements satisfactory to the
applicable Trustee for the giving of notice by the applicable Trustee, and the
Company, in the case of (i), (ii) or (iii) of subclause (B) has, subject to
certain limited exceptions set forth in the Indentures, irrevocably deposited
or caused to be deposited with the applicable Trustee as trust funds in trust
for such purpose an amount in the currency in which such Debt Securities are
denominated sufficient to pay and discharge the entire indebtedness on such
Debt Securities for principal (and premium, if any) and interest to the date of
such deposit (in the case of Debt Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be; provided,
however, in the event a petition for relief under the applicable Federal or
state bankruptcy, insolvency or other similar law is filed with respect to the
Company within 91 days after the deposit and the applicable Trustee is required
to return the deposited money to the Company, the obligations of the Company
under the applicable Indenture with respect to such Debt Securities will not be
deemed terminated or discharged; (2) the Company has paid or caused to be paid
all other sums payable under the applicable Indenture by the Company and (3)
the Company has delivered to the applicable Trustee an officers' certificate
and an opinion of counsel each stating that all conditions precedent therein
provided relating to the satisfaction and discharge of the applicable Indenture
with respect to such series have been complied with. (Section 4.01)
If provision is made for the defeasance of Debt Securities of a series, and
if the Debt Securities of such series are Registered Securities and denominated
and payable only in U.S. Dollars, then the following defeasance provisions of
each Indenture shall apply to such series of Debt Securities except as
otherwise specified in the Prospectus Supplement for such series. (Section
15.01)
At the Company's option, either (a) the Company shall be deemed to have been
discharged from its obligations with respect to Debt Securities of any series
("legal defeasance option") or (b) the Company shall cease to be under any
obligation to comply with certain provisions of the Indentures relating to
mergers and consolidations of the Company, and, in the case of the Senior
Indenture, the provisions relating to limitations on liens and sale and lease-
back transactions, with respect to Debt Securities of any series (and, if so
specified, any other obligation of the Company or restrictive covenant added
for the benefit of such series) ("covenant defeasance option") at any time
after the applicable conditions set forth below have been satisfied: (1) the
14
<PAGE>
Company shall have deposited or caused to be deposited irrevocably with the
applicable Trustee as trust funds held in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Debt
Securities of such series (i) money in an amount, (ii) U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount or (iii) a combination
of (i) and (ii) sufficient, in the opinion (with respect to (i) and (ii)) of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the applicable Trustee, to pay and
discharge each installment of principal (including any mandatory sinking fund
payments) of and premium, if any, and interest on, the Outstanding Debt
Securities of such series on the dates such installments of interest or
principal and premium are due; (2) such deposit shall not cause the applicable
Trustee with respect to Debt Securities of that series to have a conflicting
interest with respect to the Debt Securities of any series; (3) such deposit
will not result in a breach or violation of, or constitute a default under, the
applicable Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound; (4) if the Debt Securities of such series
are then listed on any national securities exchange, the Company shall have
delivered to the applicable Trustee an opinion of counsel or a letter or other
document from such exchange to the effect that Company's exercise of its
defeasance option would not cause such Debt Securities to be delisted; (5) no
Event of Default or event (including such deposit) which, with the giving of
notice or lapse of time, or both, would become an Event of Default with respect
to the Debt Securities of such series shall have occurred and be continuing on
the date of such deposit and, with respect to the legal defeasance option only,
no Event of Default under the provisions of the Indentures relating to certain
events of bankruptcy or insolvency or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under such bankruptcy
or insolvency provisions shall have occurred and be continuing on the 91st day
after such date; and (6) the Company shall have delivered to the applicable
Trustee an opinion of counsel or a ruling of the Internal Revenue Service to
the effect that the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance or Discharge. Notwithstanding the foregoing, if the
Company exercises its covenant defeasance option and an Event of Default under
the provisions of the Indentures relating to certain events of bankruptcy or
insolvency or event which with the giving of notice or lapse of time, or both,
would become an Event of Default under such bankruptcy or insolvency provisions
shall have occurred and be continuing on the 91st day after the date of such
deposit, the defeased covenant obligations will be reinstated. (Section 15.02)
Defeasance provisions, if any, for Debt Securities denominated in a foreign
currency or currencies or for Bearer Securities may be specified in the
Prospectus Supplement. (Section 15.01)
PAYMENT AND PAYING AGENTS
If Debt Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Debt Securities of that series may be presented or surrendered for
payment, where Debt Securities of that series may be surrendered for
registration of transfer or exchange, where Debt Securities of that series
which are convertible may be surrendered for conversion and where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and the applicable Indenture may be served. If Debt Securities of a series are
issuable as Bearer Securities, the Company will maintain (a) in the Borough of
Manhattan, The City and State of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange, where Debt Securities of that series which are
convertible may be surrendered for conversion, where notices and demands to or
upon the Company in respect of the Debt Securities of that series and the
applicable Indenture may be served and where Bearer Securities of that series
and related Coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (b),
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Debt Securities of that series and related Coupons may be presented and
surrendered for
15
<PAGE>
payment (including payment of any additional amounts payable on Debt Securities
of that series, if so provided in such series); provided, however, that if the
Debt Securities of that series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Debt Securities of
that series in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Debt Securities of that
series are listed on such exchange, and (c) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that
series may be surrendered for registration of transfer, where Debt Securities
of that series may be surrendered for exchange, where Debt Securities of that
series which are convertible may be surrendered for conversion and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and the applicable Indenture may be served. The Company will give
prompt written notice to the applicable Trustee of the location and any change
in location of such office or agency.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that,
if the Debt Securities of a series are denominated and payable in U.S. dollars,
payment of principal of and any premium and interest on Debt Securities of such
series, if so provided in the Prospectus Supplement shall be made at the office
of the Company's Paying Agent in the Borough of Manhattan, the City and State
of New York, if (but only if) payment in U.S. dollars of the full amount of
such principal, premium, interest or additional amounts, as the case may be, at
all offices or agencies outside the United States maintained for the purpose by
the Company in accordance with the applicable Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
(Section 12.03)
CONSOLIDATION, MERGER AND SALE
Nothing contained in either Indenture or any of the Debt Securities prevents
any consolidation or merger of the Company with or into any other corporation
or corporations or any sale or conveyance of all or substantially all the
property of the Company to any other corporation, provided that upon any such
consolidation, merger, sale or conveyance of or by the Company, other than a
consolidation or merger in which the Company is the continuing corporation, the
due and punctual payment of the principal of and premium, if any, and interest,
if any, on all of the Debt Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions
of the Indenture to be performed by the Company, is expressly assumed by the
corporation formed by such consolidation, or into which the Company shall have
been merged, or by the corporation which shall have acquired such property.
(Section 10.01)
The Senior Indenture provides that if, upon any consolidation or merger of
the Company with or into any other corporation or upon any sale or conveyance
of all or substantially all its property to any other corporation, any of the
property of the Company or of any Subsidiary would thereupon become subject to
any mortgage, lien or pledge which would not otherwise be permitted by the
Senior Indenture without securing the Outstanding Debt Securities of any
series, the Company will first secure such series of Outstanding Debt
Securities, equally and ratably with any other obligations of the Company or
any Subsidiary then entitled thereto. (Section 10.02)
PENNSYLVANIA TAXES
Individuals who are residents of Pennsylvania and who hold Debt Securities
for their own account (either directly or indirectly) will not be subject to
existing county personal property taxes in Pennsylvania with respect to the
Debt Securities, but the Company is required to deduct from interest paid to
individual owners of Debt Securities who are residents of Pennsylvania and to
remit to Pennsylvania the Corporate Loans Tax which is presently at the annual
rate of four mills ($.004) per $1 principal amount of Debt Securities owned by
each individual, subject to adjustment if interest paid in any year represents
more or less than interest for a full year.
16
<PAGE>
REGARDING THE TRUSTEES
Citibank, N.A., Trustee under the Senior Indenture, also is trustee under an
indenture covering certain other securities of Sun. Sun maintains deposit
accounts and conducts other banking transactions with Citibank, N.A., including
borrowings in the ordinary course of business. Citibank, N.A. is a co-manager
and participating lender in a revolving credit agreement with the Company.
Bankers Trust Company, Trustee under the Subordinated Indenture, also is
trustee under an indenture covering certain other securities of Sun. Sun
maintains deposit accounts and conducts other banking transactions with Bankers
Trust Company, including borrowings in the ordinary course of business. Bankers
Trust Company is the agent and a participating lender in a revolving credit
agreement with the Company.
DESCRIPTION OF THE EQUITY SECURITIES
The authorized capital stock of the Company consists of 200,000,000 shares of
Common Stock, $1 par value, of which 106,851,665 shares were outstanding on
March 31, 1994 and 15,000,000 shares of Cumulative Preference Stock without par
value, none of which are outstanding.
PREFERENCE STOCK
The Board of Directors of the Company is authorized without further
stockholder action to provide for the issuance of up to 15,000,000 shares of
Preference Stock in one or more series and to determine the designations,
preferences, dividend rates, liquidation rights, voting rights, conversion
rights, redemption rights, sinking funds, stated value and such other
provisions as may be determined by the Board of Directors pursuant to
Pennsylvania law. However, each share of Preference Stock may not be converted
into more than one share of Common Stock (as adjusted pursuant to certain
events) or entitle the holder thereof to more than one vote.
The Prospectus Supplement will describe the designations, preferences,
dividend rates, liquidation rights, voting rights, conversion rights,
redemption rights and such other provisions determined by the Board of
Directors of the Company to apply to the Preference Stock.
The following description summarizes certain general terms and provisions of
the Preference Stock, is not complete and is qualified in its entirety by
reference to all of the provisions of the Company's Articles of Incorporation,
as a copy of which is filed as an exhibit to the Registration Statement.
Rank
All shares of the same series of Preference Stock shall be identical in all
respects, except that shares of a series issued at different times may differ
as to the dates from which dividends on such shares shall be cumulative. All
series of Preference Stock shall rank equally with and be identical in all
respects to each other series, unless otherwise determined by the Board of
Directors.
Preference Stock shall rank, as to dividends and upon liquidation,
dissolution or winding up, prior to Common Stock and to any other capital stock
of the Company, other than capital stock which shall by its terms rank prior to
or on a parity with Preference Stock and which shall be authorized by a vote of
the holders of at least two-thirds of the then-outstanding Preference Stock.
Dividend Rights
Before any dividends shall be declared and set apart for payment or paid on
any class or classes of stock of the Company ranking junior to Preference
Stock, the holders of shares of each series of Preference Stock shall be
entitled to receive cash dividends, when and as declared by the Board of
Directors at the annual rate, and no more, fixed in the resolution adopted by
the Board of Directors providing for the issue of such series. Such dividends
shall be payable quarterly in cash. With respect to each series of Preference
Stock, such dividends shall be cumulative from the date or dates of issue of
such series. No dividends shall be declared or
17
<PAGE>
paid or set apart for payment on any series of Preference Stock unless there
shall likewise be or have been declared and paid or set apart for payment on
all shares of outstanding Preference Stock of each other series like dividends
in proportion to their respective annual dividend rates. Accruals of dividends
shall not bear interest.
Redemption
The Company may redeem the whole or any part of any series of Preference
Stock at the times and redemption prices set forth in the resolutions adopted
by the Board of Directors providing for the issue of such series. In the event
of a partial redemption, the shares to be redeemed may be selected by lot or by
such other equitable method as the Board of Directors in its discretion may
determine.
Unless the Company defaults in making payment of the redemption price plus
accrued and unpaid dividends, upon redemption the redeemed shares shall cease
to be outstanding and the holders thereof shall cease to be stockholders with
respect to such shares and shall have no interest in or claim against the
Company except the right to receive the redemption price plus accrued and
unpaid dividends. Conversion rights, if any, of shares called for redemption
shall terminate at the close of business on the business day prior to the
redemption date.
If at any time the Company shall have failed to pay dividends in full on
Preference Stock, thereafter and until dividends in full including all accrued
and unpaid dividends on shares of all series of outstanding Preference Stock,
shall have been declared and set apart for payment or paid, (i) the Company,
without the affirmative vote of the holders of at least a majority of the
shares of outstanding Preference Stock, voting as a class without regard to
series, shall not redeem less than all of the shares of outstanding Preference
Stock, regardless of series and (ii) neither the Company nor any subsidiary
shall purchase any shares of Preference Stock except in accordance with a
purchase offer made in writing or by publication which will result in fair and
equitable treatment among the respective series as determined by the Board of
Directors in their sole discretion; provided, however, that (iii) unless
prohibited by the provisions applicable to any series, the Company, to meet the
requirements of any sinking fund provision with respect to any series, may use
shares of such series acquired by it prior to such failure and then held by it
as treasury stock and (iv) nothing shall prevent the Company from completing
the purchase or redemption of shares of Preference Stock for which a purchase
contract was entered into for any sinking fund purposes or the notice of
redemption of which was mailed to the holders thereof, prior to the default.
The Company shall not declare or set apart for payment or pay any dividends
or make any distribution on or redeem, purchase or otherwise acquire or permit
any subsidiary to purchase or acquire, any other class or classes of stock of
the Company ranking junior to Preference Stock as to dividends or upon
liquidation, if at such time the Company shall be in default with respect to
any dividend payable on, or any obligation to purchase, shares of any series of
Preference Stock, but the Company may under such circumstances redeem,
purchase, or otherwise acquire shares of stock of any such junior class in
exchange for, or out of the proceeds from the sale of, other shares of stock of
any junior class.
Voting Rights
Except as described below, or as may be required by law, the holders of
Preference Stock shall have no voting rights. If the Company shall have failed
to pay, or declare and set apart for payment, dividends on Preference Stock in
an aggregate amount equivalent to six full quarterly dividends on all shares of
Preference Stock then outstanding, the number of Directors of the Company shall
be increased by two at the first annual meeting of the shareholders of the
Company held thereafter, and at such meeting and at each subsequent annual
meeting until dividends payable for all past quarterly dividend periods on all
outstanding shares of Preference Stock shall have been paid, or declared and
set apart for payment, in full, the holders of the shares of Preference Stock
shall have the exclusive and special voting right, voting as a class without
regard to series, each share of Preference Stock entitling the holder thereof
to one vote per share, to elect two additional members of the Board of
Directors to hold office for a term of one year; provided, that the right to
vote as a class upon the election of such two additional Directors shall not
limit the right of holders of any series of
18
<PAGE>
Preference Stock to vote upon the election of all other Directors and upon
other matters if and to the extent that such holders are entitled pursuant to
resolution providing for the issue of such series. Upon such payment, or
declaration and setting apart for payment, in full, the terms of the two
additional Directors so elected shall terminate and such voting right of the
holders of shares of Preference Stock shall cease.
The Company shall not, without the affirmative vote of the holders of at
least two-thirds of the outstanding Preference Stock, voting as a class without
regard to series: (i) create any class of stock ranking prior to or on a parity
with Preference Stock as to dividends or upon liquidation or increase the
authorized number of shares of any such previously authorized class of stock;
(ii) alter or change any of the terms and provisions of the Preference Stock so
as adversely to affect the preferences, special rights or powers given to the
Preference Stock or (iii) increase the number of shares of Preference Stock
which the Company is authorized to issue.
Liquidation
Upon the voluntary or involuntary liquidation, dissolution or winding up of
the Company, Preference Stock shall be preferred as to assets over Common Stock
and any other class or classes of stock ranking junior to Preference Stock so
that the holders of shares of Preference Stock of each series shall be entitled
to be paid or to have set apart for payment, before any distribution is made to
the holders of Common Stock and any other class or classes of stock ranking
junior to Preference Stock, the amount set forth in the resolutions providing
for the issue of such series plus an amount equal to all dividends accrued and
unpaid up to and including the date fixed for such payment, and the holders of
Preference Stock shall not be entitled to any other payment.
If upon such liquidation, dissolution or winding up of the Company, its net
assets shall be insufficient to permit the payment in full of the amounts to
which the holders of all outstanding shares of Preference Stock are entitled,
the entire remaining net assets of the Company shall be distributed among the
holders of Preference Stock in amounts proportionate to the full preferential
amounts to which they are respectively entitled.
COMMON STOCK
All shares of Common Stock presently outstanding are, and the shares of
Common Stock to be issued and sold in connection with any distribution pursuant
to this Prospectus will be, duly authorized, fully paid and nonassessable.
Holders of the Common Stock are entitled to one vote per share on any matter
submitted to the stockholders and do not have cumulative voting rights. The
Common Stock is not redeemable or convertible and the holders of Common Stock
do not have any pre-emptive right to purchase securities of the Company. Upon
dissolution of the Company, the holders are entitled to receive ratably all of
the assets, if any, which remain legally available for distribution to the
Company's stockholders after the liquidation preferences of the Company's
Preference Stock, if any, have been satisfied in full. Subject to the prior
dividend rights of the holders of any Preference Stock, the holders of the
Common Stock outstanding from time to time are entitled to receive dividends as
and when declared by the Board of Directors of the Company out of funds legally
available therefor.
Under the Company's Articles of Incorporation, a business combination or
other specified transaction entered into with a holder (with certain
exceptions) of more than 10% of the voting stock of the Company (a "Related
Person") must either (i) be approved by a vote of the holders of not less than
75% of the outstanding shares of the Company's voting stock held by
stockholders other than the Related Person; (ii) be approved by two-thirds of
the members of the Board of Directors not affiliated with the Related Person;
or (iii) satisfy certain minimum price criteria and procedural requirements
with respect to the remaining stockholders.
19
<PAGE>
DESCRIPTION OF THE WARRANTS
The following statements with respect to the Warrants are summaries of, and
subject to, the detailed provisions of one or more separate Warrant Agreements
(each, a "Warrant Agreement") between the Company and one or more banking
institutions organized under the laws of the United States of America or any
State thereof, as Warrant Agent (each, a "Warrant Agent"), forms of which are
filed as exhibits to the Registration Statement.
The Warrants, evidenced by Warrant Certificates (the "Warrant Certificates"),
may be issued under the Warrant Agreements independently or together with any
Debt Securities or Equity Securities offered by any Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, the Warrants will be
immediately exercisable upon issuance and may be traded separately from any
series of Debt Securities or Equity Securities with which they are issued.
Reference is made to the Prospectus Supplement for the specific terms of any
Warrants offered thereby, including, where applicable, (i) designation,
aggregate principal amount, currencies, denominations and other terms of the
series of any Debt Securities purchasable upon exercise of the Warrants and the
price at which such Debt Securities may be purchased upon such exercise; (ii)
the designation, number of shares, stated value and terms (including, without
limitation, liquidation, dividend, conversion, and voting rights) of the series
of any Preference Stock purchasable upon exercise of Warrants and the price at
which such number of shares of Preference Stock may be purchased upon such
exercise; (iii) the number of shares of any Common Stock purchasable upon
exercise of the Warrants and the price at which such number of shares of Common
Stock may be purchased upon such exercise; (iv) the date on which the right to
exercise such Warrants shall commence and the date (the "Expiration Date") upon
which such right shall expire; (v) United States Federal income tax
consequences applicable to such Warrants; and (vi) any other terms of such
Warrants.
Each Warrant will entitle the holder thereof to purchase such principal
amount of Debt Securities or number of shares of Equity Securities at such
exercise price as shall in each case be set forth in, or calculable from, the
Prospectus Supplement, which exercise price may be subject to adjustment upon
the occurrence of certain events as set forth in such Prospectus Supplement.
After the close of business on the Expiration Date (or such later date to which
the Expiration Date may be extended by the Company), unexercised Warrants will
become void. The place or places where, and the manner in which, Warrants may
be exercised shall be specified in the Prospectus Supplement.
Prior to the exercise of any Warrants, holders of the Warrants will not have
any of the rights of holders of the Debt Securities or the Equity Securities
purchasable upon exercise, including the right to receive payments of
principal, premium, or interest on any Debt Securities purchasable upon such
exercise or to enforce covenants in the applicable Indenture or to receive
payment of dividends on any Equity Securities purchasable upon such exercise or
to exercise any applicable right to vote.
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) to or through underwriters or
dealers, (ii) directly to one or more institutional purchasers, or (iii)
through agents. The Prospectus Supplement with respect to the Securities
offered thereby will set forth the terms of the offering of such Securities,
including the name or names of any underwriters or agents, the purchase price
of such Securities and the proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers and any securities exchanges on which such
Securities may be listed. Only underwriters named in the Prospectus Supplement
are deemed to be underwriters in connection with the Securities offered
thereby.
If underwriters are used in the sale, the Securities will be acquired by the
underwriters for their own account and may be resold from time to time in one
or more transactions, including negotiated transactions,
20
<PAGE>
at a fixed public offering price or at varying prices determined at the time of
sale. The Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The obligations of the underwriters to
purchase such Securities will be subject to certain conditions precedent, and
the underwriters will be obligated to purchase all of the Securities of the
series offered by the Prospectus Supplement if any of such Securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offering
and sale of the Securities, and any commissions payable by the Company to any
such agent, will be set forth in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent is acting on a best
efforts basis for the period of its appointment.
As one means of direct issuance of the Securities, the Company may utilize
the services of another entity to conduct an electronic "Dutch Auction" of the
Securities among potential purchasers who are eligible to participate in the
auction of such Securities, as described in the Prospectus Supplement.
As indicated in the Prospectus Supplement, the Company may authorize agents,
underwriters or dealers to solicit offers by certain institutional investors to
purchase Securities providing for payment and delivery on a future date
specified in the Prospectus Supplement. There may be limitations on the minimum
amount which may be purchased by any such institutional investor or on the
portion of the aggregate principal amount of the Securities which may be sold
pursuant to such arrangements. Institutional investors to which such offers may
be made, when authorized, include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and such other institutions as may be approved by the Company. The
obligations of any such purchasers pursuant to such delayed delivery and
payment arrangements will not be subject to any conditions except (i) the
purchase by an institution of the particular Securities shall not at the time
of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject and (ii) if the particular
Securities are being sold to underwriters, the Company shall have sold to such
underwriters the total principal amount of such Securities less the principal
amount thereof covered by such arrangements. Underwriters will not have any
responsibility with respect to the validity of such arrangements or the
performance of the Company or such institutional investors thereunder.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments which the agents and underwriters may be required to make in respect
thereof. Agents and underwriters may engage in transactions with, or perform
services for, the Company in the ordinary course of business.
The place and time of delivery of the Offered Securities will be set forth in
the Prospectus Supplement.
LEGAL OPINIONS
The validity of the Securities will be passed upon for the Company by Jack L.
Foltz, Esq., Vice President and General Counsel of the Company or Jonathan C.
Waller, Esq., Assistant General Counsel of the Company, and for any
underwriters, dealers or agents by Simpson Thacher & Bartlett (a partnership
which includes professional corporations), New York, New York. Simpson Thacher
& Bartlett will rely upon the opinion of Mr. Foltz or Mr. Waller, as the case
may be, as to all matters of Pennsylvania law. Mr. Foltz and Mr. Waller, in
their respective capacities as Vice President and General Counsel and Assistant
General Counsel of the Company, participate in various employee benefit plans
offered by the Company and in connection with certain of such benefit plans
receive Common Stock of the Company and options to purchase Common Stock of the
Company.
21
<PAGE>
EXPERTS
The consolidated balance sheets of Sun at December 31, 1993 and 1992, the
consolidated statements of income, changes in stockholders' equity and cash
flows for each of the three years in the period ended December 31, 1993, and
the financial statement schedules included in the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1993, as amended, incorporated
by reference in this Prospectus, have been incorporated herein in reliance upon
the reports (which include an explanatory paragraph regarding the Company's
change in method of accounting for income taxes in 1993, the Company's change
in method of accounting for the cost of postretirement health care and life
insurance benefits in 1992 and the Company's change in method of accounting for
the cost of crude oil and refined product inventories of Suncor Inc., the
Company's Canadian subsidiary in 1991) of Coopers & Lybrand, independent
accountants, given on the authority of that firm as experts in auditing and
accounting.
22
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRE-
SENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND THE PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFERING MADE HEREBY AND, IF GIVEN OR MADE,
ANY SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF
THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO
WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION, NEITHER THE DELIVERY
OF THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT NOR ANY SALE MADE THEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
The Company................................................................ 3
Use of Proceeds............................................................ 3
Summary of Financial Information........................................... 3
Description of the Debt Securities......................................... 4
Description of the Equity Securities....................................... 17
Description of the Warrants................................................ 20
Plan of Distribution....................................................... 20
Legal Opinions............................................................. 21
Experts.................................................................... 22
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
$700,000,000
[LOGO OF SUN COMPANY, INC. APPEARS HERE]
SUN COMPANY, INC.
DEBT SECURITIES
PREFERENCE STOCK
COMMON STOCK
WARRANTS
-----------------
PROSPECTUS
, 1994
-----------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be borne by registrant in connection with the issuance and
distribution of the securities being registered, other than underwriting
discounts and commissions, are:
<TABLE>
<S> <C>
Registration Fee--Securities and Exchange Commission................ $241,381
Reimbursement of Designated Underwriters' Counsel's Fee............. 75,000
Accounting Fees and Expenses........................................ 60,000
Printing Expenses................................................... 82,000
Trustees' and Warrant Agents' Fees.................................. 30,000
Rating Agency Fees.................................................. 60,000
Blue Sky Fees and Expenses (including Counsel Fees)................. 15,000
Miscellaneous....................................................... 20,000
--------
Total........................................................... $583,381
========
</TABLE>
All amounts are estimated except for registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Pennsylvania Business Corporation Law variously empowers or requires Sun
Company, Inc. ("Corporation") under specified circumstances, to indemnify
officers, directors and other persons against expenses incurred in connection
with any action, suit or proceeding, civil or criminal, to which such person is
a party or is threatened to be made a party.
Article VII of the Corporation's Bylaws provides as follows:
ARTICLE VII: INDEMNIFICATION
GENERAL
Section 1. The Corporation shall pay on behalf of any individual who is
or was a Director, officer, employee or agent of the Corporation or who is
or was serving at the request of the Corporation as Director, officer,
trustee, fiduciary, employee or agent of any other domestic or foreign
corporation or partnership, joint venture, sole proprietorship, trust or
other enterprise, or who is or was serving as a fiduciary with respect to
any employee benefit plan as a result of his employment by, or service as a
Director of, the Corporation ("Indemnified Person") all expenses, including
attorneys' fees and disbursements, incurred by such person in the defense
or settlement of any civil, criminal, administrative or arbitrative
proceeding pending, threatened or completed against such person by reason
of his being or having been such Indemnified Person, and shall indemnify
such person against amounts paid or incurred by him in satisfaction of
settlements, judgments, fines, and penalties in connection with any such
proceeding, including any proceeding by or in the right of the Corporation,
except where such indemnification is expressly prohibited by applicable law
or where the acts or failures to act of the Indemnified Person constitute
willful misconduct, self-dealing or recklessness. The foregoing right to
payment and to indemnification shall not be exclusive of other rights to
which such person may be entitled as a matter of law or otherwise.
AGREEMENTS FOR INDEMNIFICATION AND FUNDING
Section 2. The Corporation is authorized, but not required, to enter into
agreements for indemnification with any Indemnified Person, however,
failure to enter into such agreements shall not
<PAGE>
in any way limit the rights of such Indemnified Persons hereunder. The
Corporation may, in addition to the foregoing, create a fund of any nature,
which may, but need not be, under the control of a trustee, or otherwise
secure or insure in any manner its indemnification obligations.
EXPENSES
Section 3. Expenses incurred by a Director, officer, employee or agent in
defending a civil or criminal action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation.
DISPUTES
Section 4. Any dispute related to the right to indemnification of or
advancement of expenses to Indemnified Persons as provided under this
Article, except with respect to indemnification for liabilities arising
under the Securities Act of 1933 which the Corporation has undertaken to
submit to a court for adjudication, shall be decided only by arbitration in
accordance with the commercial arbitration rules then in effect of the
American Arbitration Association.
The Corporation has obtained Executive Liability Coverage and Executive
Indemnification Coverage covering all claims during the policy period in an
aggregate amount up to $100,000,000. The Executive Liability portion of this
policy protects all directors and officers of the Corporation and its
subsidiaries. This section of the policy provides protection for losses arising
from any error, misstatement, misleading statement, act, omission, neglect, or
breach of duty committed, attempted or allegedly committed or attempted by such
persons in the discharge of their duties as directors and officers for which
the director or officer is not indemnified by the Corporation. The Executive
Indemnification portion of the policy protects the Corporation (subject to
several limitations and exceptions) against losses for which it grants
indemnification as permitted or required by law.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1 Form of Underwriting Agreement.
4.1 Form of Indenture dated as of May 15, 1994 between the Company and
Citibank, N.A., as Trustee, with respect to the Senior Debt Securities.
4.2 Form of Indenture dated as of May 15, 1994 between the Company and
Bankers Trust Company, as Trustee, with respect to the Subordinated Debt
Securities.
4.3 Form of Warrant Agreement to be entered into between the Company and one
or more banking institutions organized under the laws of the United
States or any State thereof, as Warrant Agent with respect to Debt
Securities (including Form of Warrant Certificate).
4.4 Form of Warrant Agreement to be entered into between the Company and one
or more banking institutions organized under the laws of the United
States or any State thereof, as Warrant Agent with respect to Equity
Securities (including Form of Warrant Certificate).
4.5 Articles of Incorporation of Sun Company, Inc., as restated and amended.
4.6 Sun Company, Inc. Bylaws, as restated and amended.
4.7 Form of Common Stock Certificate of Sun Company, Inc.
5 Opinion of Jack L. Foltz, Esq., Vice President and General Counsel of Sun
Company, Inc.
12 Statements Re: Computation of Ratio of Earnings to Fixed Charges for the
years ended December 31, 1993, 1992, 1991, 1990 and 1989. Incorporated by
reference to Exhibit 12 of the Company's Annual Reports on Form 10-K, as
amended, for the fiscal years ended December 31, 1993 and 1992,
respectively.
23.1 Consent of Jack L. Foltz, Esq. (included in Exhibit 5).
23.2 Consent of Independent Accountants.
23.3 Consent of Jonathan C. Waller, Esq.
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
24 Power of Attorney.
25.1 Form T-1, Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Citibank, N.A., Trustee under the Indenture
governing the Senior Debt Securities.
25.2 Form T-1, Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Bankers Trust Company, Trustee under the
Indenture governing the Subordinated Debt Securities.
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit, or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
Securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF PHILADELPHIA AND COMMONWEALTH OF PENNSYLVANIA ON
THIS 19TH DAY OF MAY, 1994.
Sun Company, Inc.
s/ Robert M. Aiken, Jr.
By___________________________________
ROBERT M. AIKEN, JR.
SENIOR VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY OR ON BEHALF OF THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THIS 19TH DAY OF MAY, 1994.
SIGNATURES TITLES
---------- ------
Robert M. Aiken, Jr. Senior Vice President and Chief
- ------------------------------------- Financial Officer
ROBERT M. AIKEN, JR. (Principal Financial Officer)
Robert H. Campbell* Chairman, Chief Executive Officer,
- ------------------------------------- President and Director (Principal
ROBERT H. CAMPBELL Executive Officer)
Raymond E. Cartledge* Director
- -------------------------------------
RAYMOND E. CARTLEDGE
Richard L. Cartlidge* Comptroller (Principal Accounting
- ------------------------------------- Officer)
RICHARD L. CARTLIDGE
Robert E. Cawthorn* Director
- -------------------------------------
ROBERT E. CAWTHORN
Mary J. Evans* Director
- -------------------------------------
MARY J. EVANS
II-5
<PAGE>
SIGNATURES TITLES
---------- ------
Thomas P. Gerrity* Director
- -------------------------------------
THOMAS P. GERRITY
James G. Kaiser* Director
- -------------------------------------
JAMES G. KAISER
Thomas W. Langfitt* Director
- -------------------------------------
THOMAS W. LANGFITT
R. Anderson Pew* Director
- -------------------------------------
R. ANDERSON PEW
Albert E. Piscopo* Director
- -------------------------------------
ALBERT E. PISCOPO
William F. Pounds* Director
- -------------------------------------
WILLIAM F. POUNDS
B. Ray Thompson, Jr.* Director
- -------------------------------------
B. RAY THOMPSON, JR.
Alexander B. Trowbridge* Director
- -------------------------------------
ALEXANDER B. TROWBRIDGE
s/ Robert M. Aiken, Jr. Individually and as Attorney-in-Fact
*By _________________________________
ROBERT M. AIKEN, JR.
II-6
<PAGE>
DRAFT - May 11, 1994
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------- -------
<C> <S>
1 Form of Underwriting Agreement.
4.1 Form of Indenture dated as of May 15, 1994 between the Company and
Citibank, N.A., as Trustee, with respect to the Senior Debt
Securities.
4.2 Form of Indenture dated as of May 15, 1994 between the Company and
Bankers Trust Company, as Trustee, with respect to the Subordinated
Debt Securities.
4.3 Form of Warrant Agreement to be entered into between the Company and
one or more banking institutions organized under the laws of the
United States or any State thereof, as Warrant Agent with respect to
Debt Securities (including Form of Warrant Certificate).
4.4 Form of Warrant Agreement to be entered into between the Company and
one or more banking institutions organized under the laws of the
United States or any State thereof, as Warrant Agent with respect to
Equity Securities (including Form of Warrant Certificate).
4.5 Articles of Incorporation of Sun Company, Inc. as restated and
amended.
4.6 Sun Company, Inc. Bylaws, as restated and amended.
4.7 Form of Common Stock Certificate of Sun Company, Inc.
5 Opinion of Jack L. Foltz, Esq., Vice President and General Counsel
of Sun Company, Inc.
12 Statements re: Computation of Ratio of Earnings to Fixed Charges for
the years ended December 31, 1993, 1992, 1991, 1990 and 1989
(incorporated by reference to Exhibit 12 of the Company's Annual
Reports on Form 10-K, as amended, for the fiscal years ended
December 31, 1993 and 1992, respectively).
23.1 Consent of Jack L. Foltz, Esq. (included in Exhibit 5).
23.2 Consent of Independent Accountants.
23.3 Consent of Jonathan C. Waller, Esq.
24 Power of Attorney.
25.1 Form T-1, Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Citibank, N.A., Trustee under the
Indenture governing the Senior Debt Securities.
25.2 Form T-1, Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Bankers Trust Company, Trustee under the
Indenture governing the Subordinated Debt Securities.
</TABLE>
II-8
<PAGE>
Exhibit 1
SUN COMPANY, INC.
Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
---------------------------------------
May 20, 1994
1. Introductory. Sun Company, Inc., a Pennsylvania corporation (the
------------
"Company"), proposes to issue and sell from time to time senior unsecured debt
securities, subordinated unsecured debt securities and senior or subordinated
convertible debt securities (collectively, "Debt Securities"), preference stock
and common stock (collectively "Equity Securities") and warrants ("Warrants")
to purchase Debt Securities ("Warrant Debt Securities") or Equity Securities
("Warrant Equity Securities" and collectively with the Warrant Debt
Securities, the "Warrant Securities") registered under the registration
statement referred to in Section 2(a) (collectively, "Registered Securities").
If specified in a Terms Agreement referred to in Section 3, the Company
proposes to grant to the underwriters an option to purchase up to that amount
of Registered Securities specified in such Terms Agreement (the "Option") (the
"Option Securities"). The Debt Securities and Warrant Debt Securities will be
issued under indentures (as they may be amended or supplemented from time to
time, the "Indentures"), more particularly described in a Terms Agreement,
between the Company and the trustees named therein (the "Trustee(s)"), in one
or more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms, with all such terms for
any particular series of the Debt Securities and Warrant Debt Securities being
determined at the time of sale. The Equity Securities and Warrant Equity
Securities may be issued in one or more series but, in the case of preference
stock, any such series may vary as to voting rights, dividends, optional and
mandatory redemption provisions, liquidation preference and conversion
provisions and other terms, with all such terms for any particular series or
issue of preference stock being determined at the time of issue. The Warrants
are to be issued pursuant to the provisions of a Warrant Agreement (the
"Warrant Agreement") specified in the applicable Terms Agreement between the
Company and the Warrant Agent named in the Terms Agreement (the "Warrant
Agent"). The Registered Securities will be sold pursuant to a Terms Agreement
for resale in accordance with terms of offering determined at the time of
sale.
The Registered Securities (together with the Option Securities) involved in
any such offering are hereinafter referred to as the "Securities." The firm or
firms which agree to purchase the Securities are hereinafter referred to as the
1
<PAGE>
"Underwriters" of such Securities, and the representative or representatives
of the Underwriters, if any, specified in a Terms Agreement are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives," as used in this Agreement (other than in Sections 2(b) and
7 and the second sentence of Section 3) shall mean the Underwriters.
2. Representations, Warranties and Agreements of the Company. The Company
----------------------------------------------------------
represents, warrants and agrees that:
(a) A registration statement on Form S-3 with respect to the
Registered Securities and more particularly described in the Terms
Agreement relating to the Securities has (i) been prepared by the
Company in conformity with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and (ii) been filed with the
Commission under the Securities Act. Such registration statement has
become effective under the Securities Act. If any post-effective
amendment to such registration statement has been filed with the
Commission prior to the date of the applicable Terms Agreement, the
most recent such amendment has been declared effective by the
Commission. Copies of such registration statement and any amendments
thereto have been delivered by the Company to the Representatives. As
used in this Agreement, "Effective Time" means the date and the time
as of which such registration statement, or the most recent post-
effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus included in such
registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Company pursuant to Rule 424(a) of the Rules and
Regulations; "Registration Statement" means such registration
statement, as amended at the Effective Time, including all information
incorporated by reference therein and, if the date of the Terms
Agreement is on or before the fifth business day after the Effective
Date, including all information contained in the final prospectus
filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 4(a) hereof and deemed to be a
part of the registration statement as of the Effective Time pursuant
to paragraph (b) of Rule 430A of the Rules and Regulations; and
"Prospectus" means such final prospectus, as first filed with the
Commission pursuant to Rule 424(b) (1) or (4) of the Rules and
2
<PAGE>
Regulations or, if the date of the Terms Agreement is after the
fifth business day after the Effective Date, pursuant to Rule
424(b)(2) or (5), as supplemented as contemplated by Section 3 to
reflect the terms of the Securities and the terms of offering
thereof, including all documents incorporated by reference therein.
The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus;
(b) On the Effective Date, such Registration Statement conformed
in all respects to the requirements of the Securities Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), if
applicable, and the applicable rules and regulations under said Acts,
and did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the date of the
applicable Terms Agreement, and at the time of filing of the
Prospectus pursuant to Rule 424(b)(1) and (4), the Registration
Statement and the Prospectus will conform in all respects to the
requirements of the Securities Act, the Trust Indenture Act, if
applicable, and the applicable rules and regulations under said Acts,
and neither of such documents will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that no representation or warranty is made as to information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein; and the
Indenture, if any, described in the Terms Agreement will conform with
the requirements of the Trust Indenture Act and the applicable rules
and regulations thereunder;
(c) The Company and each of its Significant Subsidiaries (as
defined in Section 13) have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which the failure to so qualify or be in good standing
would have a material adverse effect on the business, properties,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries on a consolidated basis, and the
Company and each of its Significant Subsidiaries have all corporate
power and authority necessary to own or hold their respective
3
<PAGE>
properties and to conduct the businesses in which such corporations
are engaged;
(d) All of the issued shares of capital stock of each
Significant Subsidiary of the Company (other than Suncor Inc. and
other than as described in the Prospectus) have been duly and
validly authorized and issued and are fully paid, non-assessable and
are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims.
(e) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by the Company
and the consummation of the transactions contemplated hereby and
thereby and compliance by the Company with the provisions of the
Indenture, if any, described in the Terms Agreement, the Warrant
Agreement, if any, described in the Terms Agreement, and the
Securities will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any
of its Significant Subsidiaries is bound or to which any property or
assets of the Company or any of its Significant Subsidiaries is
subject, except for any conflict, breach, or violation which would
not, individually or in the aggregate, have a material adverse
effect on the business, properties, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, nor will such actions result in any
violation of the provisions of the charter or bylaws of the Company
or any of its Significant Subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their properties or assets; and except for
the registration of the Securities under the Securities Act, such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Trust Indenture Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Securities by the Underwriters, and
the filing of a statement with the Department of State of the
Commonwealth of Pennsylvania with respect to any shares of
Preference Stock to be issued by the Company, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of the Terms Agreement (including the
provisions of this Agreement), the Indenture ,
4
<PAGE>
if any, described in the Terms Agreement and the Warrant Agreement,
if any, described in the Terms Agreement, by the Company and the
consummation of the transactions contemplated hereby and thereby;
(f) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to include any securities owned or to be owned
by such person in the securities registered pursuant to the
Registration Statement, or, except as described in the Prospectus,
to require the Company to file any other registration statement
under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in any securities being
registered pursuant to any other registration statement filed by the
Company under the Securities Act;
(g) The Indenture, if any, described in the Terms Agreement has
been duly authorized and, when executed by the proper officers of the
Company (assuming the due execution and delivery thereof by the
Trustee under the Indenture) and delivered by the Company, will have
been duly executed and delivered by the Company and the Trustee and
will constitute the valid and legally binding obligation of the
Company, enforceable in accordance with its terms (subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing); the Debt Securities
and Warrant Debt Securities, if any, described in the Terms Agreement
have been duly authorized, and, upon payment therefor as provided
herein, will be validly issued and outstanding, and will constitute
the valid and legally binding obligations of the Company, enforceable
in accordance with their terms (subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing) and entitled to the benefits of the Indenture; if
any Securities to be issued are convertible, the shares of Equity
Securities issuable upon conversion thereof are duly and validly
authorized, have been duly reserved for issuance upon conversion of
the Securities and, when issued upon the conversion of the Securities,
will be duly and validly issued, fully paid and non-assessable; the
Equity Securities and Warrant Equity Securities, if any, described in
the Terms Agreement have been duly and validly authorized, and in the
5
<PAGE>
case of Warrant Equity Securities duly reserved for issuance, and,
when issued, will be validly issued, fully paid and non-assessable;
the Warrants and the Warrant Agreement, if any, described in the
Terms Agreement have been duly and validly authorized, and the
Warrant Agreement, when duly completed, executed, and delivered, and
the Warrants, when duly executed, countersigned and delivered, will
constitute the valid and legally binding obligations of the Company,
enforceable in accordance with their terms (subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing); no further approval or
authority of the stockholders or the Board of Directors of the
Company will be required for the issuance and sale of the Securities
as contemplated by the Terms Agreement or the issuance of the shares
of Equity Securities or Warrant Equity Securities upon conversion of
the Securities or exercise of the Warrants; and the Securities, the
Indenture and Warrant Agreement, if any, described in the Terms
Agreement and the capital stock of the Company will conform to the
descriptions thereof contained in the Registration Statement and the
Prospectus;
(h) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a party or of
which any property of the Company or any Significant Subsidiary is the
subject, the outcome of which is likely to have a material adverse
effect on the business, properties, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole, and to the knowledge of the Company, no such
proceedings are threatened by governmental authorities or others
(i) The audited financial statements (including the related notes
and supporting schedules) included or incorporated by reference in the
Registration Statement or included or incorporated by reference in the
Prospectus present fairly the consolidated financial condition of the
Company and its subsidiaries and the consolidated results of their
operations, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles,
applied on a consistent basis throughout the periods involved,
except as otherwise stated therein. The unaudited consolidated
financial statements of the Company and its subsidiaries, if any,
and the related notes, included or incorporated by reference in the
Registration Statement or included or incorporated by reference in
the Prospectus present fairly their consolidated financial position
and the consolidated results of their operations, at the dates and
for the periods indicated in conformity with generally accepted
accounting principles,
6
<PAGE>
applied on a consistent basis throughout the periods involved, except
as otherwise stated therein (except for the absence of notes), subject
to normally recurring changes resulting from year-end audit
adjustments, and prepared in accordance with the instructions to Form
10-Q. Since the date of such statements, there has been no material
adverse change in the operations, business, property, assets or
liabilities of the Company or any of its Significant Subsidiaries, or
in the consolidated financial condition the Company;
(j) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus and which is not
so described;
(k) Except as described in the Prospectus, since the date as of
which information is given in the Prospectus, the Company has not
issued or granted any rights to acquire any securities of a type or
class covered by a Terms Agreement relating to an offering not yet
consummated (other than pursuant to a dividend reinvestment plan,
employee benefit plans, stock option plans or other employee or
director compensation plans existing on the date of such Terms
Agreement);
(l) Neither the Company nor any of its Significant Subsidiaries:
(i) is in violation of its charter or bylaws; (ii) or in default, and
no event has occurred which, with the notice or lapse of time or both,
would constitute a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any Significant Subsidiary is a party or by which
any of them are bound or to which any of their properties or assets is
subject or (iii) is in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets
may be subject or has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business except in the case of clauses (i), (ii) and (iii), for any
violation, default or event which, either individually or in the
aggregate, will not have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
7
<PAGE>
operations of the Company and its subsidiaries taken as a whole;
(m) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been
filed as exhibits to the Registration Statement; and
(n) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under
the United States Investment Company Act of 1940.
3. Purchase and Offering of the Securities by the Underwriters. The
------------------------------------------------------------
obligation of the Underwriters to purchase the Securities will be evidenced
by an exchange of a telegram, telex or other written communications ("Terms
Agreement") at each time the Company determines to sell the Securities.
Each Terms Agreement will be in the form of Annex II (A), (B), or (C)
attached hereto and will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the firm
or firms which will be Underwriters, the names of any Representatives, the
amount to be purchased by each Underwriter, the purchase price to be paid
by the Underwriters and certain terms of the Securities and whether any of
the Securities may be sold to institutional investors pursuant to Delayed
Delivery Contracts (as defined below). The Terms Agreement will also
specify the time and date of delivery and payment (such time and date, or
such other time not later than seven full business days thereafter as the
Representatives and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "Closing Date"),
the place of delivery and payment and any details of the terms of public
offering that should be reflected in the prospectus supplement relating to
the offering of the Securities. The obligations of the Underwriters to
purchase the Securities will be several and not joint. It is understood
that the Underwriters propose to offer the Securities for sale as set forth
in the Prospectus. The Debt Securities, if any, delivered to the
Underwriters on the Closing Date will be in such definitive form, and
denominations and registered in such names as the Underwriters may request.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and subject to
the terms and conditions herein set forth, the Company grants an option to
the several Underwriters to purchase, severally and not jointly, up to that
amount of the Option Securities as shall be specified in the Terms
Agreement from the Company at the same price as the Underwriters shall pay
8
<PAGE>
for the Securities. Said option may be exercised only to cover over-
allotments in the sale of the Securities by the Underwriters and may be
exercised in whole or in part at any time on or before the thirtieth day
after the date of the Terms Agreement upon written or telegraphic notice by
the Representatives to the Company setting forth the amount of the Option
Securities as to which the several Underwriters are exercising the Option.
The amount of Option Securities to be purchased by each Underwriter shall
be the same percentage of the total amount of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of
the Securities, as adjusted by you in such manner as you deem advisable to
avoid fractional shares/units.
If the Terms Agreement provides for the sales of Securities pursuant
to delayed delivery contracts, the Company authorizes the Underwriters to
solicit offers to purchase Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contract") with such changes therein as the Company may authorize
or approve. Delayed Delivery Contracts are only to be with institutional
investors, including commercial and savings banks, insurance companies,
pension funds, investment companies and educational and charitable
institutions. On the Closing Date, the Company will pay, as compensation,
to the Representatives for the accounts of the Underwriters, the fee set
forth in such Terms Agreement in respect of the amount of Securities to be
sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or
the performance of Delayed Delivery Contracts. If the Company executes and
delivers Delayed Delivery Contracts, the Contract Securities will be
deducted from the Securities to be purchased by the several Underwriters
and the aggregate amount of Securities to be purchased by each Underwriter
will be reduced pro rata in proportion to the amount of Securities set
forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that the Representatives determine that such reduction shall be
otherwise than pro rata and so advise the Company. The Company will advise
the Representatives not later than the business day prior to the Closing
Date of the amount of Contract Securities.
4. Further Agreements of the Company. The Company agrees:
----------------------------------
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus (i) pursuant to Rule
424(b)(1) (or, if applicable and if consented to by the
Representatives, pursuant to Rule 424(b)(4)) not later than the
Commission's close of business on the earlier of (A) the second
business day following the date of the Terms Agreement or (B) the
9
<PAGE>
fifth business day after the Effective Date, or (ii) if the date of
the Terms Agreement is after the fifth business day after the
Effective Date, pursuant to Rule 424(b)(2) (or, if applicable and if
consented to by the Representatives, pursuant to Rule 424(B)(5)) not
later than the second business day following the date of a Terms
Agreement; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted
herein; to advise the Representatives, promptly after it receives
notice thereof, of the time when the Registration Statement, or any
amendment thereto, has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof; to
advise the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith;
(c) To furnish promptly to each of the Representatives copies of
the Registration Statement, including all exhibits, any Preliminary
Prospectus, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
are reasonably requested;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any (i) amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
10
<PAGE>
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the
filing, which consent will not be unreasonably withheld;
(f) As soon as practicable after the date of each Terms
Agreement, but in no event later than twelve months after the later of
(i) the effective date of the registration statement relating to the
Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Terms Agreement, to make
generally available to its security holders an earnings statement
which will satisfy the provisions of Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158);
(g) During the period, if any, specified in the Terms Agreement
after the date of such Terms Agreement or for such shorter period as
the Securities remain outstanding, to furnish to the Representatives
and, upon request, to each of the other Underwriters, if any, copies
of all materials furnished by the Company to its stockholders and all
public reports and all reports and financial statements furnished by
the Company to the principal national securities exchange upon which
the common stock of the Company may be listed pursuant to requirements
of or agreements with such exchange or to the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time, to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities; provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject; and
11
<PAGE>
(i) For the period, if any, specified in the Terms Agreement, to
not, (A) in the event of an offering of Equity Securities or
Warrants to purchase Warrant Equity Securities, (i) offer for sale,
sell or otherwise dispose of, directly or indirectly, any Equity
Securities of the Company or permit the registration under the
Securities Act of any Equity Securities of the Company (other than
the Securities and shares issued pursuant to a dividend reinvestment
plan, employee benefit plans, stock option plans or other employee
or director compensation plans now or hereafter existing), (ii) sell
or grant options, rights or warrants with respect to any shares of
Equity Securities of the Company (other than the Securities and the
grant of options pursuant to option plans now or hereafter existing)
or (iii) offer for sale, sell or otherwise dispose of, directly or
indirectly, any securities convertible, exchangeable or exercisable
into Equity Securities of the Company (other than the Securities),
without, in any case, the prior written consent of a majority of the
Representatives; provided, however, the Company may, without such
consent, offer and sell Equity Securities of the Company in
transactions exempt from the registration requirements of the
Securities Act, provided that the purchasers in such transactions
are prohibited from offering for sale, selling or otherwise
disposing of, directly or indirectly, any of the Equity Securities
of the Company so acquired by them for the remainder of such period,
(B) in the event of an offering of Debt Securities or Warrants to
purchase Warrant Debt Securities, offer for sale, sell or cause to
be offered for sale or sold, without the prior written consent of a
majority of the Representatives, any debt securities which are
substantially similar to the Securities.
5. Expenses. The Company agrees to pay (a) the costs incident to the
---------
authorization, issuance, sale and delivery of the Securities and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereto (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus and
any documents incorporated by reference in any of the foregoing, all as provided
in this Agreement; (d) the costs of reproducing and distributing this Agreement;
(e) the costs of distributing the underwriting documentation in connection with
the organization of the underwriting syndicate and selling group to the members
thereof by mail, telex or other means of communication; (f) the filing fees
incident to securing any required review by the New York Stock Exchange of the
terms of sale of the Securities, if necessary; (g) any applicable stock exchange
listing or other fees; (h) the fees and expenses of filings, if any, with
12
<PAGE>
foreign securities administrators and of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 4(h) and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters); (i) the fees paid to rating
agencies in connection with the rating of the Securities; (j) the costs of
printing and issuance of certificates, if any; (k) transfer agent's fees, if
any; (l) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc., if any, of the terms of the
sale of the Securities and (m) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement; provided
that except as provided in this Section 5 and in Section 10, the Underwriters
shall pay their own costs and expenses, including the costs and expenses of
their counsel, any transfer taxes on the Securities which they may sell and the
expenses of advertising any offering of the Securities made by the Underwriters,
and the Company shall pay the fees and expenses of its counsel and any transfer
taxes payable in connection with its sale of Securities to the Underwriters.
6. Conditions of Underwriters' Obligations. The respective
----------------------------------------
obligations of the Underwriters hereunder are subject to the accuracy, when made
and at the time of delivery of any Securities pursuant to a Terms Agreement, of
the representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 4(a); no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened
by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with;
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Underwriters,
is material or omits to state a fact which, in the opinion of such counsel,
is material and is required to be stated therein or is necessary to make
the statements therein not misleading;
13
<PAGE>
(c) The Vice President and General Counsel or the Assistant General
Counsel of the Company shall have furnished to the Representatives his
written opinion, as counsel to the Company, addressed to the Underwriters
and dated the Closing Date, in form and substance satisfactory to the
Representatives to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the Commonwealth of
Pennsylvania and has all corporate power and authority necessary to
own or hold its properties and conduct its businesses in the manner
contemplated in the Prospectus;
(ii) The Indenture, if any, described in the Terms Agreement has been
duly authorized, executed and delivered by the Company and duly
qualified under the Trust Indenture Act; the Warrant Agreement, if
any, described in the Terms Agreement has been duly authorized,
executed and delivered by the Company; and, assuming due
authorization, execution and delivery thereof by the Trustee or the
Warrant Agent, as the case may be, each will constitute a valid and
legally binding instrument of the Company enforceable against the
Company in accordance with its terms;
(iii) The Debt Securities, if any, described in the Terms Agreement
have been duly authorized and, other than Contract Securities, duly
executed and delivered by the Company, and assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance
with this Agreement, the Debt Securities, other than any Contract
Securities, and any Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of
the Indenture;
(iv) If any Securities to be issued are convertible or if any
Warrants to purchase Warrant Equity Securities are to be issued, the
shares of Equity Securities into which the Securities initially will
be convertible or any Warrant Equity Securities to be issued upon
exercise of the Warrants are duly and validly authorized; have been
duly reserved for issuance upon conversion of the Securities; and
when issued upon the conversion of the Securities will be duly and
validly issued, fully paid and non-assessable;
(v) The shares of Equity Securities, if any, described in the Terms
Agreement have been duly and validly authorized and issued and are
14
<PAGE>
fully paid and non-assessable;
(vi) The Warrants, if any, described in the Terms Agreement, when duly
executed by the proper officers of the Company, duly countersigned by
the Warrant Agent and delivered as contemplated hereby, and the
Warrant Agreement will be validly issued and outstanding obligations
of the Company enforceable in accordance with their terms and
entitled to the benefits of the Warrant Agreement;
(vii) The Warrant Debt Securities, if any, described in the Terms
Agreement, issuable upon exercise of the Warrants, when issued upon
exercise in accordance with the Warrant Agreement and when duly
executed, authenticated and delivered as contemplated hereby, by the
Indenture and by the Warrant Agreement will be validly issued and
outstanding obligations of the Company enforceable in accordance with
their terms and entitled to the benefits of the Indenture, and the
Warrants, if any, described in the Terms Agreement, may be exercised
to purchase the securities for which they are exercisable in
accordance with their terms and the terms of the Warrant Agreement;
(viii) The Registration Statement has become effective under the
Securities Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending or threatened by
the Commission;
(ix) The Registration Statement and the Prospectus (including all
documents incorporated by reference therein) and any further
amendments or supplements thereto made by the Company prior to the
Closing Date (other than the financial statements and related
schedules and other financial and statistical data included therein,
as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Securities Act, the
Trust Indenture Act, the Exchange Act and the applicable rules and
regulations under said Acts;
(x) The Securities, other than any Contract Securities, the Indenture,
if any, described in the Terms Agreement, the Warrant Agreement, if
any, described in the Terms Agreement, and the capital stock of the
Company conform, and any Contract Securities, when issued, delivered
and sold, will conform, in all material respects to the statements
concerning them in or incorporated by reference in the Registration
Statement and the Prospectus; and the provisions of the contracts,
agreements and instruments (as the same may be in effect on the
15
<PAGE>
Closing Date) summarized in the Prospectus, any supplement thereto or
any document incorporated by reference therein, conform in all
material respects to the descriptions thereof in the Prospectus, any
supplement thereto or any document incorporated by reference therein;
(xi) To such counsel's knowledge, there are no contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been filed as exhibits to the Registration
Statement;
(xii) The Terms Agreement (including the terms of this Agreement) and
any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company;
(xiii) The sale of the Securities by the Company and the compliance by
the Company with all of the provisions of this Agreement, the Terms
Agreement, the Indenture, if any, described in the Terms Agreement,
the Warrant Agreement, if any, described in the Terms Agreement, any
Delayed Delivery Contracts and the Securities and the consummation of
the transactions contemplated hereby and thereby will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument of the
Company, except for any conflict, breach, violation, or default which,
individually or in the aggregate, would not have a materially adverse
effect on the business, properties, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole, nor will such actions result in any violation of the
provisions of the charter or bylaws of the Company or any violation of
any statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over the
Company or any of its properties or assets; and, except for the
registration of the Securities under the Securities Act, such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Trust Indenture Act, the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Securities by the Underwriters, and
the filing of a statement with the Department of State of the
Commonwealth of Pennsylvania with respect to any shares of Preference
Stock to be issued by the Company, no consent, approval, authorization
or order of, or filing, or registration with, any such court or
governmental agency or body is required for the execution, delivery
16
<PAGE>
and performance of this Agreement, the Indenture, the Warrant
Agreement, if any, described in the Terms Agreement, and any Delayed
Delivery Contract, by the Company and the consummation of the
transactions contemplated hereby; and
(xiv) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under
the United States Investment Company Act of 1940.
In addition, such counsel shall state that such counsel has participated in
conferences with officers of the Company at which the Registration
Statement, the Prospectus, and related matters were discussed and although
he is not passing upon and does not assume any responsibility for, and
shall not be deemed to have independently verified, the accuracy,
completeness or fairness of the statements contained or incorporated by
reference in the Registration Statement and Prospectus (except as and to
the extent set forth in subparagraph (x) above), on the basis of the
foregoing, no facts have come to the attention of such counsel which lead
him to believe that the Registration Statement, as of the Effective Time,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of the date
of such opinion, contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading (except that, in each case, such counsel need express
no comment with respect to the financial statements and related schedules,
other financial and statistical data included in the Registration Statement
or the Prospectus).
In rendering such opinion, such counsel may (i) rely as to matters of
fact upon certificates of officers of the Company and its subsidiaries and
public officials; (ii) state that his opinions in paragraphs (ii), (iii),
(vi), and (vii) above are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing; and (3) include such
limitations and assumptions as are customarily contained in opinions given
by counsel for issuers in securities transactions;
(d) The Company shall have furnished to the Representatives
concurrently with the execution of the Terms Agreement a letter (the
"initial letter") of Coopers & Lybrand, or such other nationally recognized
independent accountants selected by the Company as its independent
17
<PAGE>
accountants, addressed to the Underwriters, of the type described in the
American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72 (or any successor Statement on Auditing Standards) in
form and substance reasonably satisfactory to the Underwriters confirming
that they are independent accountants within the meaning of the
Securities Act and the applicable published Rules and Regulations
thereunder and stating in effect that:
(i) In their opinion, the financial statements and schedules
audited by them and included in the Prospectus contained in the
Registration Statement comply in form in all material respects with
the applicable accounting requirements of the Securities Act and the
related published Rules and Regulations;
(ii) They have made a review of any unaudited financial
statements included in the Prospectus in accordance with standards
established by the American Institute of Certified Public Accountants,
as indicated in their report or reports attached to the initial
letter;
(iii) On the basis of the review referred to in (ii) above and a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
A. the unaudited financial statements, if any, included in
the Prospectus do not comply in form in all material respects
with the applicable accounting requirements of the Securities Act
and the related published Rules and Regulations or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included in the Prospectus;
B. the unaudited capsule information, if any, included in
the Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements from which it was
derived or was not determined on a basis substantially consistent
with that of the audited financial statements included in the
Prospectus;
C. at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five days prior to the Closing Date, there was any change in
the capital stock, any increase in short-term indebtedness or
18
<PAGE>
long-term debt of the Company and consolidated subsidiaries or,
at the date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net current
assets or net assets as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
D. for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the latest quarterly income statement included in the Prospectus,
in consolidated sales and other operating revenue or in the total
or per share amounts of income before extraordinary items or net
income;
except in all cases set forth in clauses (A), (B), (C) and (D) above
for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in
the Prospectus for purposes of this subsection.
(e) The Company shall have furnished to the Representatives a letter
(as used in this paragraph, the "bring-down letter") of Coopers & Lybrand
or such other nationally recognized independent accountants selected by
the Company as its independent accountants, addressed to the Underwriters
and dated the Closing Date, (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification
19
<PAGE>
of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus,
as of a date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial letter
delivered to the Representatives concurrently with the execution of the
Terms Agreement and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter;
(f) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, and on any later date, if any, on
which Option Securities are purchased, of its Chairman of the Board,
President, Senior Vice President, or Vice President and its chief financial
or accounting officer stating that to the best of their knowledge, after
reasonable investigation:
1. The representations, warranties and agreements of the Company
in this Agreement are true and correct as of such date; the Company has
complied with all its agreements contained herein; and the conditions set
forth herein have been fulfilled;
2. No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are threatened or
contemplated by the Commission; and
3. Subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change in
the financial position or results of operations of the Company and its
subsidiaries, taken as a whole, except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(g) (i) Neither the Company nor any of its Significant Subsidiaries
shall have sustained, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus, any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the Company
or any of its Significant Subsidiaries (otherwise than as set forth or
contemplated in the Prospectus or in a supplement thereto) or any change in
or affecting, or any adverse development which affects, the business,
20
<PAGE>
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries as a whole, otherwise than
as set forth or contemplated in the Prospectus or in a supplement thereto,
the effect of which, in any such case described in clause (i) or (ii), is,
in the judgment of the Representatives, to materially impair the investment
quality of the Securities being delivered on the Closing Date on the terms
and in the manner contemplated herein or in the Prospectus or in a
supplement thereto.
(h) Subsequent to the execution and delivery of the Terms Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, Inc. (the "NYSE"),
shall have been suspended or minimum prices shall have been established on
such exchange by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal, Pennsylvania, or
New York State authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in the general economic, political
or financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it, in the
judgment of a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the delivery of the
Securities.
(i) Subsequent to the execution and delivery of the Terms Agreement,
(i) no downgrading shall have occurred in the rating accorded the Company's
debt securities by Moody's Investor Service or Standard & Poor's
Corporation and (ii) neither such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(j) The Underwriters shall have received from counsel to the
Underwriters such opinion or opinions, dated the Closing Date, with respect
to the incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as the
Underwriters reasonably require, and the Company shall have furnished to
such counsel such documents as such counsel may reasonably request for the
purpose of enabling them to pass upon such matters. In rendering such
opinion, counsel to the Underwriters may rely as to all matters governed by
Pennsylvania law on the opinion of counsel to the Company required by
Section 6(c) of this Agreement.
21
<PAGE>
7. Indemnification and Contribution.
---------------------------------
(a) The Company shall indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning
of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability or action relating
to purchases and sales of Securities), to which that Underwriter or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall
reimburse each Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by that Underwriter or controlling
person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be
-------- -------
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
in any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter (or directly by any
Underwriter if there are no Representatives) specifically for inclusion
therein; and provided further, that as to any Preliminary Prospectus or
-------- -------
supplement thereto this indemnity agreement shall not inure to the
benefit of any Underwriter or any person controlling that Underwriter on
account of any loss, claim, damage, liability or action arising from the
sale of Securities to any person by that Underwriter if that Underwriter
failed to send or give a copy of the Prospectus, as the same may be
amended or supplemented, to that person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in
such Preliminary Prospectus or supplement thereto was corrected in the
Prospectus, unless such failure resulted from non-compliance by the
Company with Section 4(c). For purposes of the second proviso to the
immediately preceding sentence, the term Prospectus shall not be deemed
to include the documents incorporated by reference therein, and no
Underwriter shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in a Preliminary
Prospectus or supplement thereto or the Prospectus to any person other
than a person to whom such Underwriter has delivered such incorporated
22
<PAGE>
documents in response to a written request therefor. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or to any controlling person of that
Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of its directors (including any person who,
with his or her consent, is named in the Registration Statement as about to
become a director of the Company), each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of that Underwriter (or directly by that
Underwriter if there are no Representatives) specifically for inclusion
therein, and shall reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by
the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company or any
such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
-------- -------
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any such claim
or action shall be brought against an indemnified party, and it shall
23
<PAGE>
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representatives shall have the
right to employ counsel to represent jointly the Representatives and those
other Underwriters and their respective controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity
may be sought by the Underwriters against the Company under this Section 7,
if, in the reasonable judgment of the Representatives, it is advisable for
the Representatives and those Underwriters and controlling persons to be
jointly represented by separate counsel (it being understood that the
Company shall not, in connection with any one such claim or action or
separate but substantially similar or related claims or actions in the same
jurisdiction arising out of the same allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm
of attorneys (other than local counsel which shall be engaged only for
purposes of appearing with such counsel in such jurisdictions in which such
firm of attorneys is not licensed to practice)), and in that event the fees
and expenses of such separate counsel shall be paid by the Company, except
that the Company, will continue to be liable for the payment of expenses to
the extent set forth in Section 5.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice
required under Section 7(c), in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters
24
<PAGE>
on the other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
with respect to such offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Securities purchased
under this Agreement (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters with respect to the Securities purchased under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 7(d)
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 7(d) shall be deemed to include,
for purposes of this Section 7(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 7(d) are several in proportion to
their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm that the statements with
respect to the public offering of the Securities set forth on the cover
page of, and under the caption "Underwriting" in, the Prospectus are
correct and constitute the only information furnished in writing to the
25
<PAGE>
Company by or on behalf of the Underwriters specifically for inclusion in
the Registration Statement and the Prospectus.
(f) The agreements contained in this Section 7 and the
representations, warranties and agreements of the Company in Sections 2
and 4 shall survive the delivery of the Securities and shall remain in
full force and effect, regardless of any termination or cancellation of
the Terms Agreement incorporating the terms of this Agreement or any
investigation made by or on behalf of any indemnified party.
8. Defaulting Underwriters. If any Underwriter defaults in the
------------------------
performance of its obligations under a Terms Agreement, the remaining non-
defaulting Underwriters shall be obligated to purchase the Securities which the
defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Securities set opposite the name of
each remaining non-defaulting Underwriter in Schedule A to the Terms Agreement
bears to the total principal amount of the Securities set opposite the names of
all the remaining non-defaulting Underwriters in Schedule A to the Terms
Agreement; provided, however, that the remaining non-defaulting Underwriters
-------- -------
shall not be obligated to purchase any Securities on the Closing Date if the
aggregate principal amount of the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 10% of the
total principal amount of the Securities set forth on Schedule A to the Terms
Agreement. If the foregoing maximum is exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Securities. If the
remaining Underwriters or other underwriters satisfactory to the Representatives
do not elect to purchase the principal amount which the defaulting Underwriter
or Underwriters agreed but failed to purchase, the Terms Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment of
expenses to the extent set forth in Section 5.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If
other Underwriters are obligated or agree to purchase the Securities of a
defaulting or withdrawing Underwriter, either the Representatives or the Company
may postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, the Prospectus
or any supplement thereto or in any other document or arrangement.
26
<PAGE>
9. Effective Date and Termination. The obligations of the
-------------------------------
Underwriters under the Terms Agreement may be terminated by the Representatives
by notice given to and received by the Company prior to delivery of any payment
for the Securities if, prior to that time, any of the events described in
Sections 6(g), 6(h), or 6(i) shall have occurred.
10. Reimbursement of Underwriters' Expenses. If (a) the Company
----------------------------------------
shall fail to tender the Securities for delivery to the Underwriters for any
reason permitted under this Agreement or the Terms Agreement or (b) the
Underwriters shall decline to purchase the Securities for any reason permitted
under this Agreement or the Terms Agreement (including the termination of the
Terms Agreement pursuant to Section 9 but excluding the termination of the Terms
Agreement pursuant to Section 8), the Company shall reimburse the Underwriters
for the reasonable fees and expenses of their counsel and for such other out-of-
pocket expenses as shall have been reasonably incurred by them in connection
with the Terms Agreement and the proposed purchase of the Securities, and upon
demand the Company shall pay the full amount thereof to the Representatives. If
the Terms Agreement is terminated pursuant to Section 8 by reason of the default
of one or more Underwriters, the Company shall not be obligated to reimburse any
Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and agreements
-------------
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to their addresses furnished to the Company in
writing for the purpose of communications hereunder;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Vice President and General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
- -------- -------
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. The Terms Agreement
-----------------------------------------
(including the provisions of this Agreement) shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. The Terms Agreement (including the provisions of this Agreement)
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
27
<PAGE>
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15
of the Securities Act and (b) the indemnity agreement of the Underwriters
contained in Section 7(b) of this Agreement shall be deemed to be for the
benefit of directors of the Company, officers of the Company who have signed
the Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 12, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
13. Definition of the Terms "Business Day" and "Significant
--------------------------------------------------------
Subsidiary." For purposes of this Agreement, "business day" means any day on
- ------------
which the NYSE is open for trading. "Significant Subsidiary" shall have the
meaning set forth in Rule 405 of the Rules and Regulations, but shall exclude
any subsidiary of the Company (as that term is defined in Rule 405 of the Rules
and Regulations), the major part of the business of which consists of finance,
banking, credit, leasing, real estate, financial services or other similar
services or coal operations or any combination thereof.
14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
--------------
IN ACCORDANCE WITH THE LAWS OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES
OF CHOICE OF LAW).
15. Counterparts. The Terms Agreement may be executed in one or more
-------------
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
16. Headings. The headings herein are inserted for convenience of
---------
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
28
<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on _______________ __, 19__*.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of
initial public
offering]
SUN COMPANY, INC.
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from SUN COMPANY, INC., a
Pennsylvania corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert---as of the date hereof, for
------------------------------
delivery on __________________, 19__ ("Delivery Date"),]
[$] _______________________________
principal amount of the Company's [insert title of Debt Securities] (the "Debt
-------------------------------
Securities") ______ shares of the Company's [insert title of Equity Securities]
(the "Equity Securities") and [insert number and title of Warrants] to
purchase [$]__________ principal amount of debt securities or [number] of
[title of Equity Securities] (the "Warrants" and together with the Debt
Securities and the Equity Securities, the "Securities") offered by the Company's
Prospectus dated __________________, 19__ and a Prospectus Supplement dated
__________________, 19__, relating thereto, receipt of copies of which is hereby
acknowledged, at __% of the principal amount of the Debt Securities plus
accrued interest from __________________, 19__, if any, at $_____ per share of
Equity Security, and at $_____ per Warrant, and on the further terms and
conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
-----------------------------------------------------
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the amounts set forth
below:
- -----------------------
*/ Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
AI-1
<PAGE>
Principal Amount of Number of Shares
Delivery Date Debt Securities of Equity Securities Number of Warrants
- ------------- ------------------- -------------------- ------------------
_____________ [$]_____________ ____________________ __________________
_____________ [$]_____________ ____________________ __________________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on---the--each--Delivery Date shall be made to the Company or its
order by certified or official bank check or by wire transfer in [New York
Clearing House (next day)] [Federal (same day)] funds at the office of
_____________________ at _________ __.M. on-- the--such--Delivery Date upon
delivery to the undersigned of the Securities to be purchased by the
undersigned---for delivery on such Delivery Date--in definitive fully
registered form and in such denominations and amounts and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to--the---
such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities, number of shares of Equity Securities and number of Warrants
less the principal amount and number thereof covered by this and other similar
Contracts. The undersigned represents that its investment in the Securities is
not, as of the date hereof, prohibited under the laws of any jurisdiction to
which the undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below, notice
to such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
AI-2
<PAGE>
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
- ---------------------------------------------
(Name of Purchaser)
By
-------------------------------------------
(Title of Signatory)
-------------------------------------------
-------------------------------------------
(Address of Purchaser)
Accepted, as of the above date,
SUN COMPANY, INC.
By
-----------------------------------
Name:
Title:
AI-3
<PAGE>
ANNEX II (A)
SUN COMPANY, INC.
("Company")
Debt Securities
TERMS AGREEMENT
---------------
,19__
Sun Company,Inc.
1801 Market Street
Philadelphia, PA 19103-1699
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we] [We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 33-___) ("Underwriting
Agreement"), the following securities ("Securities") to be issued under an
indenture, dated ________, 19__, between the Company and _______________, as
Trustee, on the following terms:
Title: [ %] [Floating Rate] [Senior] [Subordinated] [Notes] [Debentures]
-----
Due ___
Principal Amount: [$]
----------------
Interest: [ % per annum, from , 19 , payable semiannually on
--------
and commencing , 19 , to holders of record on the preceding
or , as the case may be.]
Maturity: , 19 .
--------
Optional Redemption:
-------------------
Sinking Fund:
------------
Period Designated Pursuant to Section 4(g) of the Underwriting Agreement:
------------------------------------------------------------------------
___ years.
Period Designated Pursuant to Section 4(i) of the Underwriting Agreement:
------------------------------------------------------------------------
__ days.
[Conversion Provisions]:
---------------------
[Other Terms]
AII-1
<PAGE>
Delayed Delivery contracts: [None.] [Delivery Date[s] shall be
--------------------------
, 19 . Underwriters' fee is % of the principal amount of the Contract
Securities.]
Purchase Price: % of principal amount, plus accrued interest [, if any,]
--------------
from ___________, 19__.
Expected Reoffering Price: % of principal amount, subject to change by
-------------------------
the undersigned.
Closing Date: A.M. on , 19 , at _____________________ in
------------
[New York Clearing House (next day)] [Federal (same-day)] funds.
[Name[s] and Address[es] of Representative[s]:]
--------------------------------------------
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your
----------------------
consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein
by reference [If appropriate, insert--, except that the obligations and
----------------------
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the above Securities].
The Securities will be made available for checking and packaging at
the office of _______________ at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
AII-2
<PAGE>
[Please signify your acceptance of the foregoing by return wire not
later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of-- themselves--itself---and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By______________________________
Name:
Title:
AII-3
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
---------------
Total............................ [$]
=======
SCHA-1
<PAGE>
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
, 19 , relating to [$]__________ principal amount of our [Insert title of
---------------
Securities]. We also confirm that, to the best of our knowledge after
----------
reasonable investigation, the representations and warranties of the
undersigned in the Underwriting Agreement filed as an exhibit to the
undersigned's registration statement on Form S-3 (No. 33-_____) ("Underwriting
Agreement") are true and correct, no stop order suspending the effectiveness
of the Registration Statement (as defined in the Underwriting Agreement) or of
any part thereof has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the undersigned, are contemplated by the
Securities and Exchange Commission and, subsequent to the respective dates of
the most recent financial statements in the Prospectus (as defined in the
Underwriting Agreement), there has been (or in the case of a form of
prospectus filed pursuant to Rule 424(b)(1) or (4) there will be, as of the
date of such prospectus) no material adverse change in the financial position
or results of operations of the undersigned and its subsidiaries except as set
forth in or contemplated by the Prospectus.
Very truly yours,
SUN COMPANY, INC.
By________________________________
Name:
Title:
UNDWAGR.517
May 17, 1994
AII-1A
<PAGE>
ANNEX II (B)
SUN COMPANY, INC.
("Company")
Equity Securities
TERMS AGREEMENT
---------------
,19__
Sun Company, Inc.
1801 Market Street
Philadelphia, PA 19103
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto
and for their respective accounts, we] [We] offer to purchase, on and subject
to the terms and conditions of the Underwriting Agreement filed as an exhibit
to the Company's registration statement on Form S-3 (No. 33-___)
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
Title: [Common Stock] [Preference Stock, Series ______]
-----
Number of Shares to be Issued: [______ shares]
-----------------------------
[For Preference Stock:
Voting Rights:
-------------
Preferred Stock Dividends: [cash dividends of $ to $ per share
-------------------------
payable quarterly in arrears on _____ __, ______ __, _______ __ and _______
__.]
Optional Redemption:
-------------------
Mandatory Redemption/Sinking Fund:
---------------------------------
Liquidation Preference: [$ per share plus ].
----------------------
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National
--------------------------
Market System] [American Stock Exchange]
Period Designated Pursuant to Section 4(g) of the Underwriting Agreement:
------------------------------------------------------------------------
___ years.
AII-1B
<PAGE>
Period Designated Pursuant to Section 4(i) of the Underwriting Agreement:
------------------------------------------------------------------------
___ days.
[Conversion Provisions]:
---------------------
[Other Terms]
Price to Public: $________ per share
---------------
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: A.M. on , 19 , at ________________
------------
in New York [Clearing House (next day)] [Federal (same-day)] funds.
Name of Transfer Agent and Registrar:
------------------------------------
[Name[s] and Address[es] of Representative[s]:]]
--------------------------------------------
[For Common Stock:
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National
--------------------------
Market System] [American Stock Exchange]
Period Designated Pursuant to Section 4(g) of the Underwriting Agreement:
------------------------------------------------------------------------
___ years. Period Designated Pursuant to Section 4(i) of the Underwriting
--------------------------------------------------------------
Agreement: ___ days.
---------
[Other Terms]
Price to Public: $______________ per share
---------------
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: A.M. on , 19 , at _________________
------------
in New York [Clearing House (next day)] [Federal (same-day)] funds.
Name of Transfer Agent and Registrar:
------------------------------------
[Name[s] and Address[es] of Representative[s]:]]
--------------------------------------------
The respective shares of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
AII-2B
<PAGE>
[If appropriate, insert--It is understood that we may, with your consent,
----------------------
amend this offer to add additional Underwriters and reduce the number of
shares to be purchased by the Underwriters listed in Schedule A hereto by the
number of shares to be purchased by such additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein
by reference [If appropriate, insert--, except that the obligations and
----------------------
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters
to purchase the above Securities].
The Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
[Please signify your acceptance of the foregoing by return wire not
later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of-- themselves--itself---and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By______________________________
Name:
Title:
AII-3B
<PAGE>
SCHEDULE A
Number of
Underwriter Shares
----------- ---------
---------------
Total.............................. [$]
=======
SCHA-1B
<PAGE>
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
, 19 , relating to ____________ of our [Insert title of Securities] (the
--------------------------
"Terms Agreement"). We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the
undersigned in the Underwriting Agreement Basic Provisions filed as an exhibit
to the undersigned's registration statement on Form S-3 (No. 33-_____)
(together with the Terms Agreement, the "Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof
has been issued and no proceedings for that purpose have been instituted or,
to the knowledge of the undersigned, are contemplated by the Securities and
Exchange Commission and, subsequent to the respective dates of the most recent
financial statements in the Prospectus (as defined in the Underwriting
Agreement), there has been (or in the case of a form of prospectus filed
pursuant to Rule 424(b)(1) or (4) there will be, as of the date of such
prospectus) no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
SUN COMPANY, INC.
By________________________________
Name:
Title:
AII-1BB
<PAGE>
ANNEX II (C)
SUN COMPANY, INC.
("Company")
Warrants
TERMS AGREEMENT
---------------
,19__
Sun Company, Inc.
1801 Market Street
Philadelphia, PA 19103
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto
and for their respective accounts, we] [We] offer to purchase, on and subject
to the terms and conditions of the Underwriting Agreement filed as an exhibit
to the Company's registration statement on Form S-3 (No. 33-___)
("Underwriting Agreement"), the number of Warrants ("Warrants") to purchase
[$__________ aggregate [principal amount of the Company's Debt Securities]
[__________ shares of the Company's Preference Stock] [__________ shares of
the Company's Common Stock] ("Warrant Securities") set forth opposite their
names in Schedule A hereto at a purchase price of $__________ per Warrant.
The Warrants shall have the following terms:
Title: Warrants
-----
Number of Warrants to be issued: [______ Warrants]
-------------------------------
Title of Warrant Agreement:
--------------------------
Warrant Agent:
-------------
Title of Warrant Securities:
---------------------------
Exercise Price:
--------------
Expiration Date:
---------------
Currency:
--------
Currency of Warrant Securities:
------------------------------
Maturity of Warrant Securities:
------------------------------
Principal Amount [Number] of Warrant Securities:
-----------------------------------------------
AII-1C
<PAGE>
Interest Rate of Warrant Securities:
-----------------------------------
Interest Payment Dates of Warrant Securities:
--------------------------------------------
Redemption Provisions of Warrant Securities:
-------------------------------------------
Listing Requirement:
-------------------
Additional Terms of Warrants and Warrant Securities:
---------------------------------------------------
Period Designated Pursuant to Section 4(g) of the Underwriting Agreement:
------------------------------------------------------------------------
___ years.
Period Designated Pursuant to Section 4(i) of the Underwriting Agreement:
------------------------------------------------------------------------
___ days.
Price to Public: $________ per Warrant
---------------
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: A.M. on , 19 , at
------------
_____________________ in New York [Clearing House (next day)] [Federal (same-
day)] funds.
[Name[s] and Address[es] of Representative[s]:]]
--------------------------------------------
[If appropriate, insert--It is understood that we may, with your consent,
----------------------
amend this offer to add additional Underwriters and reduce the number of
Warrants to be purchased by the Underwriters listed in Schedule A hereto by
the number of shares to be purchased by such additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein
by reference [If appropriate, insert--, except that the obligations and
----------------------
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters
to purchase the Warrants].
The Warrants will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
AII-2C
<PAGE>
[Please signify your acceptance of the foregoing by return wire not
later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of-- themselves--itself---and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By______________________________
Name:
Title:
UNDWAGR.517
May 17, 1994
AII-3C
<PAGE>
SCHEDULE A
Number of
Underwriter Shares
----------- ---------
-------------------------
Total [$]
--------------------------
=======
UNWAGR.517
May 17, 1994
SCHA-1C
<PAGE>
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
, 19 , relating to ____________ of our [Insert title of Securities] (the
--------------------------
"Terms Agreement"). We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the
undersigned in the Underwriting Agreement Basic Provisions filed as an exhibit
to the undersigned's registration statement on Form S-3 (No. 33-_____)
(together with the Terms Agreement, the "Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof
has been issued and no proceedings for that purpose have been instituted or,
to the knowledge of the undersigned, are contemplated by the Securities and
Exchange Commission and, subsequent to the respective dates of the most recent
financial statements in the Prospectus (as defined in the Underwriting
Agreement), there has been (or in the case of a form of prospectus filed
pursuant to Rule 424(b)(1) or (4) there will be, as of the date of such
prospectus) no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
SUN COMPANY, INC.
By
-----------------------------------
Name:
Title:
AII-1CC
<PAGE>
Exhibit 4.1
================================================================================
SUN COMPANY, INC.
To
CITIBANK, N.A.
Trustee
--------------------
Indenture
Dated as of May 15, 1994
____________________
================================================================================
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of May 15, 1994
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<C> <S>
(S) 310 (a)(1) ........................................ 6.09
(a)(2) ........................................ 6.09
(a)(3) ........................................ Not Applicable
(a)(4) ........................................ Not Applicable
(a)(5) ........................................ 6.09
(b) ........................................... 6.08, 6.10
(c) ........................................... Not Applicable
(S) 311 (a) ........................................... 6.13(a)
(b) ........................................... 6.13(b)
(c) ........................................... Not Applicable
(S) 312 (a) ........................................... 7.01, 7.02(a)
(b) ........................................... 7.02(b)
(c) ........................................... 7.02(c)
(S) 313 (a) ........................................... 7.03(a)
(b) ........................................... 7.03(b)
(c) ........................................... 7.03(a), 7.03(c)
(d) ........................................... 7.03(d)
(S) 314 (a) ........................................... 7.04, 12.02
(b) ........................................... Not Applicable
(c)(1) ........................................ 1.02
(c)(2) ........................................ 1.02
(c)(3) ........................................ Not Applicable
(d) ........................................... Not Applicable
(e) ........................................... 1.02
(S) 315 (a) ........................................... 6.01(a), 6.01(c)
(b) ........................................... 6.02, 7.03(a)(7)
(c) ........................................... 6.01(b)
(d)(1) ........................................ 6.01(a)
(d)(2) ........................................ 6.01(c)(2)
(d)(3) ........................................ 6.01(c)(3)
(e) ........................................... 5.14
(S) 316 (a)(1)(A) ..................................... 5.02, 5.12
(a)(1)(B) ..................................... 5.13
(a)(2) ........................................ Not Applicable
(b) ........................................... 5.08
(c) ........................................... Not Applicable
(S) 317 (a)(1) ........................................ 5.03
(a)(2) ........................................ 5.04
(b) ........................................... 12.04
(S) 318 ............................................. 1.06
</TABLE>
- ------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE ONE
-----------
DEFINITIONS AND OTHER PROVISIONS
--------------------------------
OF GENERAL APPLICATION................................... 1
----------------------
Section 1.01. Definitions................................................ 1
- --------------------------
Section 1.02. Compliance Certificates and Opinions....................... 15
------------------------------------
Section 1.03. Form of Documents Delivered to Trustee..................... 16
--------------------------------------
Section 1.04. Notices, etc., to Trustee and Company...................... 17
-------------------------------------
Section 1.05. Notice to Holders; Waiver.................................. 17
-------------------------
Section 1.06. Conflict with Trust Indenture Act.......................... 18
---------------------------------
Section 1.07. Effect of Headings and Table of Contents................... 18
----------------------------------------
Section 1.08. Successors and Assigns..................................... 19
----------------------
Section 1.09. Separability Clause........................................ 19
-------------------
Section 1.10. Benefits of Indenture...................................... 19
---------------------
Section 1.11. Governing Law.............................................. 19
-------------
Section 1.12. Legal Holidays............................................. 19
--------------
Section 1.13. No Security Interest Created............................... 20
----------------------------
Section 1.14. Liability Solely Corporate................................. 20
--------------------------
ARTICLE TWO
DEBT SECURITY FORMS........................... 20
Section 2.01. Forms Generally............................................ 20
---------------
Section 2.02. Form of Trustee's Certificate of Authentication............ 21
-----------------------------------------------
Section 2.03. Securities in Global Form.................................. 22
-------------------------
ARTICLE THREE
<PAGE>
Page
THE DEBT SECURITIES...................... 22
Section 3.01. Amount Unlimited; Issuable in Series....................... 22
------------------------------------
Section 3.02. Denominations.............................................. 27
-------------
Section 3.03. Execution, Authentication, Delivery and Dating............. 27
----------------------------------------------
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global
-------------------------------------------------------
Notes for Definitive Bearer Securities; Global Notes Representing
-----------------------------------------------------------------
Registered Securities................................................ 29
---------------------
Section 3.05. Registration, Transfer and Exchange........................ 36
-----------------------------------
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities...... 39
-----------------------------------------------------
Section 3.07. Payment of Interest; Interest Rights Preserved............. 40
----------------------------------------------
Section 3.08. Cancellation............................................... 44
------------
Section 3.09. Computation of Interest.................................... 44
-----------------------
Section 3.10. Currency of Payments in Respect of Debt Securities......... 44
--------------------------------------------------
Section 3.11. Judgments.................................................. 48
---------
Section 3.12. Exchange Upon Default...................................... 49
---------------------
ARTICLE FOUR
SATISFACTION AND DISCHARGE......................... 49
Section 4.01. Satisfaction and Discharge of Indenture.................... 49
---------------------------------------
Section 4.02. Application of Trust Money................................. 51
--------------------------
ARTICLE FIVE
REMEDIES.............................. 52
Section 5.01. Events of Default.......................................... 52
-----------------
Section 5.02. Acceleration of Maturity; Rescission and Annulment......... 53
--------------------------------------------------
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.............................................................. 55
-------
<PAGE>
Page
Section 5.04. Trustee May File Proofs of Claim........................... 56
--------------------------------
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
-----------------------------------------------------
Securities or Coupons................................................ 57
---------------------
Section 5.06. Application of Money Collected............................. 57
------------------------------
Section 5.07. Limitation on Suits........................................ 58
-------------------
Section 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest................................................. 59
--------------------
Section 5.09. Restoration of Rights and Remedies......................... 59
----------------------------------
Section 5.10. Rights and Remedies Cumulative............................. 59
------------------------------
Section 5.11. Delay or Omission Not Waiver............................... 59
----------------------------
Section 5.12. Control by Holders......................................... 60
------------------
Section 5.13. Waiver of Past Defaults.................................... 60
-----------------------
Section 5.14. Undertaking for Costs...................................... 60
---------------------
ARTICLE SIX
THE TRUSTEE............................. 61
Section 6.01. Certain Duties and Responsibilities........................ 61
-----------------------------------
Section 6.02. Notice of Defaults......................................... 62
------------------
Section 6.03. Certain Rights of Trustee.................................. 63
-------------------------
Section 6.04. Not Responsible for Recitals or Issuance of Debt
------------------------------------------------
Securities........................................................... 64
----------
Section 6.05. May Hold Debt Securities................................... 65
------------------------
Section 6.06. Money Held in Trust........................................ 65
-------------------
Section 6.07. Compensation and Reimbursement............................. 65
------------------------------
Section 6.08. Disqualification; Conflicting Interests.................... 66
---------------------------------------
Section 6.09. Corporate Trustee Required; Eligibility.................... 66
---------------------------------------
Section 6.10. Resignation and Removal; Appointment of Successor.......... 66
-------------------------------------------------
Section 6.11. Acceptance of Appointment by Successor..................... 68
--------------------------------------
<PAGE>
Page
Section 6.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business............................................................. 70
--------
Section 6.13. Preferential Collection of Claims Against Company.......... 70
-------------------------------------------------
Section 6.14. Appointment of Authenticating Agent........................ 70
-----------------------------------
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............. 72
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.. 72
---------------------------------------------------------
Section 7.02. Preservation of Information; Communication to Holders...... 73
-----------------------------------------------------
Section 7.03. Reports by Trustee......................................... 75
------------------
Section 7.04. Reports by Company......................................... 77
------------------
ARTICLE EIGHT
CONCERNING THE HOLDERS....................... 77
Section 8.01. Acts of Holders............................................ 77
---------------
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by
--------------------------------------------------------
Holder............................................................... 78
------
Section 8.03. Persons Deemed Owners...................................... 79
---------------------
Section 8.04. Revocation of Consents; Future Holders Bound............... 79
--------------------------------------------
ARTICLE NINE
HOLDERS' MEETINGS......................... 80
Section 9.01. Purposes of Meetings....................................... 80
--------------------
Section 9.02. Call of Meetings by Trustee................................ 80
---------------------------
Section 9.03. Call of Meetings by Company or Holders..................... 81
--------------------------------------
Section 9.04. Qualifications for Voting.................................. 81
-------------------------
Section 9.05. Regulations................................................ 81
-----------
Section 9.06. Voting..................................................... 82
------
Section 9.07. No Delay of Rights by Meeting.............................. 83
-----------------------------
<PAGE>
Page
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE........... 83
Section 10.01. Company May Consolidate, etc., Only on Certain Terms....... 83
----------------------------------------------------
Section 10.02 Successor Corporation to be Substituted; Securities
---------------------------------------------------
to be Secured in Certain Events............................ 83
-------------------------------
Section 10.03 Opinion of Counsel to be Given Trustee..................... 84
--------------------------------------
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES...................... 85
Section 11.01. Supplemental Indentures Without Consent of Holders......... 85
--------------------------------------------------
Section 11.02. Supplemental Indentures With Consent of Holders............ 86
-----------------------------------------------
Section 11.03. Execution of Supplemental Indentures....................... 88
------------------------------------
Section 11.04. Effect of Supplemental Indentures.......................... 88
---------------------------------
Section 11.05. Conformity with Trust Indenture Act........................ 88
-----------------------------------
Section 11.06. Reference in Debt Securities to Supplemental Indentures.... 88
-------------------------------------------------------
Section 11.07. Notice of Supplemental Indenture........................... 89
--------------------------------
ARTICLE TWELVE
COVENANTS............................. 89
Section 12.01. Payment of Principal, Premium and Interest................. 89
------------------------------------------
Section 12.02. Officer's Certificate as to Default........................ 89
-----------------------------------
Section 12.03. Maintenance of Office or Agency............................ 90
-------------------------------
Section 12.04. Money for Debt Securities; Payments To Be Held in Trust.... 91
-------------------------------------------------------
Section 12.05. [Intentionally Omitted].................................... 93
Section 12.06. Purchase of Debt Securities by Company..................... 93
--------------------------------------
Section 12.07. Limitation on Liens........................................ 93
-------------------
Section 12.08. Limitation on Sale and Lease-Back Transactions............. 95
----------------------------------------------
<PAGE>
Page
Section 12.09. Waiver of Certain Covenants................................ 96
---------------------------
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES................... 97
Section 13.01. Applicability of Article................................... 97
------------------------
Section 13.02. Election to Redeem; Notice to Trustee...................... 97
-------------------------------------
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed..... 97
------------------------------------------------------
Section 13.04. Notice of Redemption....................................... 98
--------------------
Section 13.05. Deposit of Redemption Price................................ 99
---------------------------
Section 13.06. Debt Securities Payable on Redemption Date................. 100
------------------------------------------
Section 13.07. Debt Securities Redeemed in Part........................... 101
--------------------------------
ARTICLE FOURTEEN
SINKING FUNDS........................... 101
Section 14.01. Applicability of Article................................... 101
------------------------
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt
---------------------------------------------------------
Securities........................................................... 102
----------
Section 14.03. Redemption of Debt Securities for Sinking Fund............. 102
----------------------------------------------
ARTICLE FIFTEEN
DEFEASANCE............................ 104
Section 15.01. Applicability of Article................................... 104
------------------------
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government
----------------------------------------------------
Obligations.......................................................... 104
-----------
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be
------------------------------------------------------
Held in Trust........................................................ 107
-------------
Section 15.04. Repayment to Company....................................... 107
--------------------
ARTICLE SIXTEEN
CONVERSION............................. 107
Section 16.01. Applicability; Conversion Privilege........................ 107
-----------------------------------
<PAGE>
Page
Section 16.02. Conversion Procedure; Conversion Price; Fractional
--------------------------------------------------
Shares............................................................... 108
------
Section 16.03. Adjustment of Conversion Price for Common Stock............ 110
-----------------------------------------------
Section 16.04. Consolidation or Merger of the Company..................... 114
--------------------------------------
Section 16.05. Notice of Adjustment....................................... 115
--------------------
Section 16.06. Notice In Certain Events................................... 115
------------------------
Section 16.07. Company To Reserve Equity Securities; Registration; Listing. 116
-----------------------------------------------------------
Section 16.08. Taxes on Conversion........................................ 117
-------------------
Section 16.09. Conversion After Record Date............................... 117
----------------------------
Section 16.10. Company Determination Final................................ 118
---------------------------
Section 16.11. Trustee's Disclaimer....................................... 118
--------------------
<PAGE>
INDENTURE dated as of May 15, 1994, between SUN COMPANY, INC., a
Pennsylvania corporation (hereinafter called the "Company"), having its
principal executive office at Ten Penn Center, 1801 Market Street, Philadelphia,
PA 19103, and CITIBANK, N.A., a national banking association duly incorporated
and existing under the laws of the United States of America, Trustee
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness (herein generally called the
"Debt Securities"), to be issued in one or more series, as in this Indenture
provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
<PAGE>
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning specified
in Section 8.01.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Affiliated Corporation" means any corporation which is controlled by
the Company but which is not a Subsidiary of the Company pursuant to the
definition of the term "Subsidiary."
"Authenticating Agent" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in the place in connection with which the term is used
or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business
Day in such city.
"Bearer Security" means any Debt Security (with or without Coupons),
in the form established pursuant to Section 2.01, which is payable to
bearer (including any
<PAGE>
3
Global Note payable to bearer) and title to which passes by delivery only,
but does not include any Coupons.
"Board of Directors" means either the board of directors of the
Company, or any committee of that board duly authorized to act hereunder or
any director or directors and/or officer or officers of the Company to whom
that board or committee shall have delegated its authority.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee. As used in this
Indenture, reference to action taken pursuant to a Board Resolution shall
include, without limitation, all action taken by an officer of the Company
who has been duly authorized by the Board of Directors to take such action.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in that
Place of Payment or other location are authorized or obligated by law to
close, except as otherwise specified pursuant to Section 3.01.
"CEDEL" means Cedel S.A.
"Closing Price" of an Equity Security means the last reported sale
price of such stock (regular way) as shown on the Composite Tape of the New
York Stock Exchange (or, if such stock is not listed or admitted to trading
on the New York Stock Exchange, on the principal national securities
exchange on which such stock is listed or admitted to trading), or, in case
no such sale takes place on such day, the average of the closing bid and
asked prices on the New York Stock Exchange (or, if such stock is not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which such stock is listed or
admitted to trading), or, if it is not listed or admitted to trading on any
national securities exchange, the last reported sale price of such stock as
reported by the National Association of Securities Dealers Automated
Quotation System (NASDAQ), or in case no such sale takes place on such day,
the average of the closing bid and asked prices as reported by NASDAQ, or
if such stock is not so reported, the average of the closing bid and asked
prices as furnished by any member of the National Association of Securities
Dealers, Inc., selected from time to time by the Company for that purpose.
<PAGE>
4
"Code" means the Internal Revenue Code of 1986, as amended and as in
effect on the date hereof.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, as amended, or if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such duties on
such date.
"Common Stock" means the class of Common Stock, $1 par value, of the
Company authorized at the date of this Indenture as originally signed or
any other class of stock resulting from successive changes or
reclassifications of such Common Stock and which does not have any priority
in the payment of dividends or upon liquidation over any other class of
stock and which is not subject to redemption by the Company; provided that
--------
if Debt Securities convertible into Common Stock are Outstanding at the
time of such successive changes or reclassifications and there shall be
more than one such resulting class of stock, the shares of each resulting
class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Financial
Officer or a Vice President and by the Treasurer, an Assistant Treasurer,
the Comptroller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 3.10(i).
"Consolidated Stockholders' Equity", at any time, means the total
stockholders' equity of the Company and its consolidated subsidiaries,
determined on a consolidated basis in accordance with generally accepted
accounting principles, as of the end of the most recently completed
<PAGE>
5
fiscal quarter of the Company for which financial information is then
available.
"Conversion Agent" means any Person authorized by the Company to
receive Debt Securities to be converted into Equity Securities on behalf
of the Company. The Company initially authorizes the Trustee to act as
Conversion Agent for the Debt Securities on its behalf. The Company may
at any time and from time to time authorize one or more Persons to act as
Conversion Agent in addition to or in place of the Trustee with respect
to any series of Debt Securities issued under this Indenture.
"Conversion Date" has the meaning specified in Section 3.10(e).
"Conversion Event" means the cessation of (i) a Foreign Currency to be
used both by the government of the country which issued such Currency and
for the settlement of transactions by public institutions of or within the
international banking community, (ii) the ECU to be used both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any Currency
unit other than the ECU to be used for the purposes for which it was
established.
"Conversion Price" means, with respect to any series of Debt
Securities which are convertible into Equity Securities, the price per
share of Equity Securities at which the Debt Securities of such series are
so convertible, as specified pursuant to Section 3.01 with respect to such
series, as such price may be adjusted from time to time in accordance with
Section 16.03.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of
this instrument is located at 120 Wall Street, New York, New York 10043,
except that for purposes of presentation of Registered Debt Securities
for payment or registration of transfer or exchange or for conversion,
such term means the office or agency at which any particular time the
corporate agency business of the Trustee shall be conducted, which office
at the the date of this instrument is located at 111 Wall Street, New
York, NY 10043.
"Corporation" includes corporations, associations, companies and
business trusts.
<PAGE>
6
"Coupon" means any interest coupon appertaining to any Debt Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York Clearing House bank,
if any, from time to time selected by the Trustee for purposes of Section
3.10; provided that such agent shall accept such appointment in writing and
--------
the terms of such appointment shall be acceptable to the Company and shall,
in the opinion of the Company and the Trustee at the time of such
appointment, require such agent to make the determinations required by this
Indenture by a method consistent with the method provided in this Indenture
for the making of such decision or determination.
"Current Market Price" of an Equity Security on any date means the
average of the daily Closing Prices per share of such Equity Security for
any thirty (30) consecutive Trading Days selected by the Company prior to
the date in question, which thirty (30) consecutive Trading Day period
shall not commence more than forty-five (45) Trading Days prior to the day
in question; provided that with respect to Section 16.03(3), the "Current
Market Price" of such Equity Security shall mean the average of the daily
Closing Prices per share of such Equity Security for the five (5)
consecutive Trading Days ending on the date of the distribution referred to
in Section 16.03(3) (or if such date shall not be a Trading Day, on the
Trading Day immediately preceding such date).
"Debt Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Debt Securities
(including any Global Notes) authenticated and delivered under this
Indenture.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Discharged" has the meaning specified in Section 15.02.
"Discount Security" means any Debt Security which is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code
and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time
<PAGE>
7
of payment is legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 3.10(g).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Equity Security" means either Common Stock or Preference Stock or
both Common Stock and Preference Stock.
"Euro-clear Operator" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor as operator of the Euro-clear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Rate Officer's Certificate" means a telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar,
Foreign Currency or Currency unit amounts of principal, premium, if any,
and any interest respectively (on an aggregate basis and on the basis of a
Debt Security having the lowest denomination principal amount determined in
accordance with Section 3.02 in the relevant Currency or Currency unit),
payable on the basis of such Market Exchange Rate sent (in the case of a
telex) or signed (in the case of a certificate) by the Treasurer or any
Assistant Treasurer of the Company.
"Fixed Rate Security" means a Debt Security which provides for the
payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security which provides for the
payment of interest at a variable rate determined periodically by reference
to an interest rate index or any other index specified pursuant to Section
3.01.
<PAGE>
8
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency or currency
unit the value of which is determined by reference to the values of the
currencies of any group of countries.
"Funded Debt" means any indebtedness for money borrowed, created,
issued, incurred, assumed or guaranteed which would, in accordance with
generally accepted accounting practice, be classified as long-term debt,
but in any event including all indebtedness for money borrowed, whether
secured or unsecured, maturing more than one year or extendible at the
option of the obligor to a date more than one year, after the date of
determination thereof (excluding any amount thereof included in current
liabilities).
"Global Note" means a Registered or Bearer Security evidencing all or
part of a series of Debt Securities, including, without limitation, any
temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the Registered
Holder, and with respect to a Bearer Security or a Coupon, the bearer
thereof.
"Indebtedness" of any Person means (1) any liability of such Person
(a) for borrowed money, or (b) evidenced by a note or similar instrument
given in connection with the acquisition of any business, properties or
assets of any kind, or (c) for the payment of money under a lease that is
required to be classified as a capitalized lease obligation in accordance
with generally accepted accounting principles; (2) any liability of others
described in the preceding clause (1) that such Person has guaranteed; and
(3) any amendment, supplement, modification, deferral, renewal, extension
or refunding of any liability of the types referred to in clauses (1) and
(2) above.
"Indenture" means this instrument as originally executed, or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof and, unless the context otherwise requires, shall include the terms
of a particular series of Debt Securities as established pursuant to
Section 3.01.
The term "interest," when used with respect to a Discount Security
which by its terms bears interest only after maturity, means interest
payable after Maturity, and, when used with respect to a Bearer Security,
includes any additional amounts payable on such Bearer Security, if so
provided pursuant to Section 3.01.
<PAGE>
9
"Interest Payment Date" with respect to any Debt Security means the
Stated Maturity of an installment of interest on such Debt Security.
"Market Exchange Rate" means (i) for any conversion involving a
Currency unit on the one hand and Dollars or any Foreign Currency on the
other, the exchange rate between the relevant Currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to
Section 3.01 for the securities of the relevant series, (ii) for any
conversion of Dollars into any Foreign Currency, the noon (New York City
time) buying rate for such Foreign Currency for cable transfers quoted in
New York City as certified for customs purposes by the Federal Reserve Bank
of New York and (iii) for any conversion of one Foreign Currency into
Dollars or another Foreign Currency, the spot rate at noon local time in
the relevant market at which, in accordance with normal banking procedures,
the Dollars or Foreign Currency into which conversion is being made could
be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency. In the
event of the unavailability of any of the exchange rates provided for in
the foregoing clauses (i), (ii) and (iii) the Currency Determination Agent
shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in New York
City, London or other principal market for such Currency or Currency unit
in question, or such other quotations as the Currency Determination Agent
shall deem appropriate. Unless otherwise specified by the Currency
Determination Agent, if there is more than one market for dealing in any
Currency or Currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency or Currency
unit shall be that upon which a nonresident issuer of securities designated
in such Currency or Currency unit would purchase such Currency or Currency
unit in order to make payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means the date
on which the principal of such Debt Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption,
repayment at the option of the Holder thereof or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer or a Vice President, and by the Treasurer, an Assistant Treasurer,
the
<PAGE>
10
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Company (including an employee of the Company) and who shall
be satisfactory to the Trustee, which is delivered to the Trustee.
"Outstanding" when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Debt Securities and any Coupons thereto
appertaining; provided, however, that if such Debt Securities are to be
-------- -------
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Debt Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of Debt Securities Outstanding have performed any Act
hereunder, Debt Securities owned by the Company or any other obligor upon
the Debt Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any
such Act, only Debt Securities which the Trustee knows to be so owned shall
be so disregarded. Debt Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act with respect to such
Debt Securities and that the pledgee is not the Company or any other
obligor
<PAGE>
11
upon the Debt Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite principal
amount of Outstanding Debt Securities have performed any Act hereunder, the
principal amount of a Discount Security that shall be deemed to be
Outstanding for such purpose shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.02 and the principal amount of a Debt Security denominated in a Foreign
Currency that shall be deemed to be Outstanding for such purpose shall be
the amount calculated pursuant to Section 3.10(k).
"Overdue Rate," when used with respect to any series of the Debt
Securities, means the rate, if any, designated as such in or pursuant to
the Board Resolution or the supplemental indenture, as the case may be,
relating to such series as contemplated by Section 3.01.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on
behalf of the Company.
"Permanent Global Note" shall have the meaning given such term in
Section 3.04(b).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt Securities of
any series means the place or places where the principal of (and premium,
if any) and interest on the Debt Securities of that series are payable as
specified pursuant to Section 3.01.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section
3.06 in lieu of a mutilated, lost, destroyed or stolen Debt Security or a
Debt Security to which a mutilated, lost, destroyed or stolen Coupon
appertains shall be deemed to evidence the same debt as the mutilated,
lost, destroyed or stolen Debt Security or the Debt Security to which the
mutilated, lost, destroyed or stolen Coupon appertains, as the case may be.
<PAGE>
12
"Preference Stock" means the class of Preference Stock of the
Company authorized at the date of this Indenture as originally signed or
any other class of stock resulting from successive changes or
reclassifications of such stock which may hereafter be outstanding;
provided, that if Debt Securities convertible into Preference Stock are
--------
outstanding at the time of such successive changes or reclassifications
and there shall be more than one such resulting class of stock, the
shares of each resulting class then so issuable shall be substantially in
the proportion which the total number of shares of such class resulting
from such reclassification bears to the total number of shares of all
such classes resulting from all such reclassifications.
"Principal Facility" means the real property, fixtures, machinery and
equipment relating to any facility owned by the Company or any Subsidiary,
except for any facility that, in the opinion of the Board of Directors, is
not of material importance to the business conducted by the Company and its
Subsidiaries, taken as a whole.
"Redemption Date" means the date fixed for redemption of any Debt
Security pursuant to this Indenture which, in the case of a Floating Rate
Security, unless otherwise specified pursuant to Section 3.01, shall be an
Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security, the
amount of the principal thereof that would be due and payable as of the
Redemption Date upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.02, and in the case of any other Debt Security, the
principal amount thereof, plus, in each case, premium, if any, and accrued
and unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form established
pursuant to Section 2.01 which is registered as to principal and interest
in the Security Register.
"Regular Record Date" for the interest payable on the Registered
Securities of any series on any Interest Payment Date means the date
specified for that purpose pursuant to Section 3.01 for such Interest
Payment Date.
"Responsible Officer" when used with respect to the Trustee means the
president, any vice president, the secretary, any assistant secretary or
any assistant vice
<PAGE>
13
president or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Domestic Subsidiary" means any Subsidiary which owns
Restricted Property, except a Subsidiary substantially all the real
property, plants and equipment of which are located outside the
continental United States, a Subsidiary the assets of which constitute
less than five percent (5%) of the assets of the Company and its
consolidated subsidiaries, and a Subsidiary the major part of the
business as determined by the Board of Directors of which consists of
finance, banking, credit, leasing, real estate, financial services or
other similar operations or coal operations or any combination thereof.
"Restricted Property" with respect to each series of Debt Securities
means (a) any property interest owned by the Company or a Subsidiary on
the date Debt Securities of such series are first issued in land located
in the continental United States (which for the purposes hereof shall
include any property located off the coast of the continental United
States on which the Company or any Subsidiary conducts operations
pursuant to leases, rights or other authorizations from the United States
or any state thereof located within the continental United States) and
classified by such owner on the date Debt Securities of such series are
first issued as productive of crude oil, natural gas or other petroleum
hydrocarbons in paying quantities, (b) any refining plant or
manufacturing plant owned by the Company or a Subsidiary on the date Debt
Securities of such series are first issued and located in the continental
United States, except (1) related facilities which in the opinion of the
Board of Directors are transportation or marketing facilities, and (2) a
refining plant or manufacturing plant which in the opinion of the Board
of Directors is not a principal plant of the Company and its
Subsidiaries, and (c) any shares of capital stock or indebtedness of a
Restricted Domestic Subsidiary.
The term "Restricted Property" with respect to any series of Debt
Securities shall not include future additions or improvements to or
replacements of all or a portion of any refining plant or manufacturing
plant owned by the Company or a Subsidiary on the date Debt Securities of
such series are first issued.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05(a).
<PAGE>
14
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section 3.10(i).
"Stated Maturity" when used with respect to any Debt Security or any
installment of principal thereof or premium thereon or interest thereon
means the date specified in such Debt Security or the Coupon, if any,
representing such installment of interest, as the date on which the
principal of such Debt Security or such installment of principal, premium
or interest is due and payable.
"Subsidiary" means any corporation more than 50% of the outstanding
voting stock of which is owned directly or indirectly by the Company or by
one or more Subsidiaries thereof, or by the Company and one or more
Subsidiaries. For purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors whether at
all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Temporary Global Note" shall have the meaning given such term in
Section 3.04(b).
"Trading Day" means, with respect to an Equity Security, so long
as the Equity Security is listed or admitted to trading on the New York
Stock Exchange, a day on which the New York Stock Exchange is open for
the transaction of business, or, if the Equity Security is not listed or
admitted to trading on the New York Stock Exchange, a day on which the
principal national securities exchange on which the Equity Security is
listed is open for the transaction of business, or, if the Equity
Security is not so listed or admitted for trading on any national
securities exchange, a day on which NASDAQ is open for the transaction of
business.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Debt Securities of any series shall
mean the Trustee with respect to Debt Securities of that series.
<PAGE>
15
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 11.05.
"United States" means the United States of America (including the
States and the District of Columbia), and its possessions, which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Company pursuant to Section
3.01 until a successor U.S. Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "U.S.
Depositary" shall mean or include each Person who is then a U.S. Depositary
hereunder, and if at any time there is more than one such Person, "U.S.
Depositary" as used with respect to the Debt Securities of any series shall
mean the U.S. Depositary with respect to the Debt Securities of that
series.
"U.S. Government Obligations" has the meaning specified in Section
15.02.
"U.S. Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under
the laws of the United States, or an estate or trust the income of which is
subject to United States Federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the Trustee,
any Vice President of the Company or the Trustee, as the case may be,
whether or not designated by a number or word or words added before or
after the title "Vice President".
Section 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or
<PAGE>
16
request as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 12.02) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company,
<PAGE>
17
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Notices, etc., to Trustee and Company.
-------------------------------------
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing to or with the Trustee at 120
Wall Street, New York 10043, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid or airmail postage
prepaid if sent from outside the United States, to the Company addressed to
it at the address of its principal office specified in the first paragraph
of this instrument, to the attention of its Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Section 1.05. Notice to Holders; Waiver.
-------------------------
When this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to such Registered Holders, affected by such event, as their names and
addresses appear in the Security Register, within the time prescribed, and (2)
such notice shall be sufficiently given to Holders of Bearer Securities or
Coupons (unless otherwise herein expressly provided) if published at least twice
in an Authorized Newspaper or Newspapers in The City of New York and, if Debt
Securities of such series are then listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, in a daily newspaper in London or Luxembourg or in such
<PAGE>
18
other city or cities specified pursuant to Section 3.01 or in any Debt Security
on a Business Day, at least twice, the first such publication to be not earlier
than the earliest date and not later than two Business Days prior to the latest
date prescribed for the giving of such notice; provided, however, that, in any
-------- -------
case, any notice to Holders of Floating Rate Securities regarding the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 3.01, shall be sufficiently given if given in the manner
specified pursuant to Section 3.01.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively deemed to have been duly given, whether or not
actually received by such Holder. In any case where notice to Holders is given
by publication, any defect in any notice so published as to any particular
Holder shall not affect the sufficiency of such notice with respect to other
Holders, and any notice which is published in the manner herein provided shall
be conclusively presumed to have been duly given.
Section 1.06. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
<PAGE>
19
Section 1.07. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the parties hereto
shall bind their respective successors and assigns and inure to the benefit of
their permitted successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
-------------------
In case any provision in this Indenture or in the Debt Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.10. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law.
-------------
This Indenture, the Debt Securities and the Coupons shall be governed
by and construed in accordance with the laws of the State of New York without
regard to the conflicts of law rules of said State.
Section 1.12. Legal Holidays.
--------------
Unless otherwise specified pursuant to Section 3.01 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture or of the Debt Securities or Coupons)
payment of principal (and premium, if any) or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.
<PAGE>
20
Section 1.13. No Security Interest Created.
----------------------------
Nothing in this Indenture or in the Debt Securities or Coupons,
express or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect in any jurisdiction where property of the Company or its
Subsidiaries is or may be located.
Section 1.14. Liability Solely Corporate.
--------------------------
No recourse for the payment of the principal of (or premium, if any)
or the interest on any Debt Securities or Coupons, or for any claim based
thereon or otherwise in respect thereof, or upon any obligation, covenant or
agreement of this Indenture, or in any supplemental indenture or in any Debt
Security or Coupon, or because of the creation of any indebtedness represented
thereby shall be had against any incorporator, or against any stockholder,
officer or director, as such, past, present or future, of the Company (or any
incorporator, stockholder, officer or director of any predecessor or successor
corporation), either directly or through the Company (or any such predecessor or
successor corporation), whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and all the Debt
Securities and Coupons are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company (or
any incorporator, stockholder, officer or director of any such predecessor or
successor corporation), either directly or indirectly through the Company or any
such predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants, promises
or agreements contained in this Indenture or in any of the Debt Securities or
Coupons or to be implied herefrom or therefrom; and that all such personal
liability is hereby expressly waived and released as a condition of, and as part
of the consideration for, the execution of this Indenture and the issue of Debt
Securities.
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. Forms Generally.
---------------
The Debt Securities and the Coupons, if any, of each series shall be
substantially in one of the forms (including global form) established in or
pursuant to a Board Resolution or
<PAGE>
one or more indentures supplemental hereto, and shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which any series of the Debt Securities may be
listed, or to conform to usage, all as determined by the officers executing such
Debt Securities and Coupons as conclusively evidenced by their execution of such
Debt Securities and Coupons. If the form of a series of Debt Securities or
Coupons (or any Global Note) is established in or pursuant to a Board
Resolution, a copy of such Board Resolution shall be delivered to the Trustee,
together with an Officers' Certificate setting forth the form of such series, at
or prior to the delivery of the Company Order contemplated by Section 3.03 for
the authentication and delivery of such Debt Securities (or any such Global
Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.01, Debt
Securities in bearer form (other than in global form) shall have Coupons
attached.
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Debt Securities and Coupons, as
conclusively evidenced by their execution of such Debt Securities and Coupons.
Section 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities referred to in the within
mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By ____________________________
Authorized Signatory
<PAGE>
22
Section 2.03. Securities in Global Form.
-------------------------
If any Debt Security of a series is issuable in global form (a "Global
Note"), such Global Note may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note.
Any instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.02.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution and (subject to Section
3.03) set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Debt Securities of any
series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of
Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of, transfer of, or in exchange for, or in lieu
of, other Debt Securities of such series pursuant to Sections 3.04, 3.05,
3.06, 11.06 or 13.07);
(3) the date or dates on which or periods during which the Debt
Securities of the series may be issued, and the
<PAGE>
23
date or dates (or the method of determination thereof) on which the
principal of (and premium, if any, on) the Debt Securities of such series
are or may be payable (which, if so provided in or pursuant to such Board
Resolution or supplemental indenture, may be determined by the Company from
time to time and set forth in the Debt Securities of the series issued from
time to time);
(4) the rate or rates (or the method of determination thereof) at
which the Debt Securities of the series shall bear interest, if any, and
the dates from which such interest shall accrue (which, in either case or
both, if so provided in or pursuant to such Board Resolution or
supplemental indenture, may be determined by the Company from time to time
and set forth in the Debt Securities of the series issued from time to
time); and the Interest Payment Dates on which such interest shall be
payable (or the method of determination thereof), and, in the case of
Registered Securities, the Regular Record Dates for the interest payable on
such Interest Payment Dates and, in the case of Floating Rate Securities,
the notice, if any, to Holders regarding the determination of interest and
the manner of giving such notice;
(5) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Registered
Securities) or the principal London office of the Trustee (in the case of
Bearer Securities), where the principal of (and premium, if any) and
interest on Debt Securities of the series shall be payable; the extent to
which, or the manner in which, any interest payable on any Global Note on
an Interest Payment Date will be paid, if other than in the manner provided
in Section 3.07; the extent, if any, to which the provisions of the last
sentence of Section 12.01 shall apply to the Debt Securities of the
series; and the manner in which any principal of, or premium, if any, on,
any Global Note will be paid, if other than as set forth elsewhere herein;
(6) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder and the period or
periods within which or the dates on which, the prices at which and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(7) the period or periods within which, or the date or dates on
which, the price or prices at which, and the terms and conditions upon
which Debt Securities of the series may
<PAGE>
24
be redeemed, if any, in whole or in part, at the option of the Company or
otherwise;
(8) if the coin or Currency in which the Debt Securities shall be
issuable is in Dollars, the denominations of such Debt Securities if other
than denominations of $1,000 and any integral multiple thereof (except as
provided in Section 3.04);
(9) whether the Debt Securities of the series are to be issued as
Discount Securities and the amount of discount with which such Debt
Securities may be issued and, if other than the principal amount thereof,
the portion of the principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(10) provisions, if any, for the defeasance of Debt Securities of the
series;
(11) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto, whether
Bearer Securities of the series may be exchanged for Registered Securities
of the series, as provided in Section 3.05(b) or otherwise and the
circumstances under which and the place or places at which any such
exchanges, if permitted, may be made;
(12) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued,
whether a procedure other than that set forth in Section 3.04(b) shall
apply and, if so, such other procedure, and if the procedure set forth in
Section 3.04(b) shall apply, the forms of certifications to be delivered
under such procedure;
(13) if other than Dollars, the Foreign Currency or Currencies in
which Debt Securities of the series shall be denominated or in which
payment of the principal of (and/or premium, if any) and/or interest on the
Debt Securities of the series may be made, and the particular provisions
applicable thereto and, if applicable, the amount of Debt Securities of the
series which entitles the Holder of a Debt Security of the series or its
proxy to one vote for purposes of Section 9.05;
(14) if the principal of (and premium, if any) or interest on Debt
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Debt
Securities are
<PAGE>
25
denominated or so payable without such election, in addition to or in lieu
of the provisions of Section 3.10, the period or periods within which and
the terms and conditions upon which, such election may be made and the time
and the manner of determining the exchange rate or rates between the
Currency or Currencies in which the Debt Securities are denominated or
payable without such election and the Currency or Currencies in which the
Debt Securities are to be paid if such election is made;
(15) the date as of which any Debt Securities of the series shall be
dated, if other than as set forth in Section 3.03;
(16) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index, including, but not limited to, an index based on a
Currency or Currencies other than that in which the Debt Securities are
denominated or payable, or any other type of index, the manner in which
such amounts shall be determined;
(17) if the Debt Securities of the series are denominated or payable
in a Foreign Currency, any other terms concerning the payment of principal
of (and premium, if any) or any interest on such Debt Securities (including
the Currency or Currencies of payment thereof);
(18) the designation of the original Currency Determination Agent, if
any;
(19) the applicable Overdue Rate, if any;
(20) if the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.01;
(21) any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to Debt Securities of the
series;
(22) if Bearer Securities of the series are to be issued, (x) whether
interest in respect of any portion of a temporary Debt Security in global
form (representing all of the Outstanding Bearer Securities of the series)
payable in respect of any Interest Payment Date prior to the exchange of
such temporary Debt Security for definitive Debt Securities of the series
shall be paid to any clearing organization with respect to the portion of
such temporary Debt Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which
any such interest payment received by a clearing organization will be
credited to the Persons
<PAGE>
26
entitled to interest payable on such Interest Payment Date, and (y) the
terms upon which interests in such temporary Debt Security in global form
may be exchanged for interests in a permanent Global Note or for definitive
Debt Securities of the series and the terms upon which interests in a
permanent Global Note, if any, may be exchanged for definitive Debt
Securities of the series;
(23) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Notes and, in such case,
the U.S. Depositary or any Common Depositary for such Global Note or Notes;
and if the Debt Securities of the series are issuable only as Registered
Securities, the manner in which and the circumstances under which Global
Notes representing Debt Securities of the series may be exchanged for
Registered Securities in definitive form, if other than, or in addition to,
the manner and circumstances specified in Section 3.04(c); and
(24) whether the Debt Securities of the series will be convertible
into shares of Equity Securities, and if so, the terms and conditions,
which may be in addition to or in lieu of the provisions of Article
Sixteen, upon which such Debt Securities will be so convertible, including
the Conversion Price and the conversion period; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination, rate of interest, Stated Maturity and the date from
which interest, if any, shall accrue, which, as set forth above, may be
determined by the Company from time to time as to Debt Securities of a series if
so provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto, and except as may
otherwise be provided in or pursuant to such Board Resolution and (subject to
Section 3.03) set forth in such Officers' Certificate, or in any such indenture
supplemental hereto. All Debt Securities of any one series need not be issued
at the same time, and unless otherwise provided, a series may be reopened for
issuance of additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in
or pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
<PAGE>
27
Section 3.02. Denominations.
-------------
In the absence of any specification pursuant to Section 3.01 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
Section 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Debt Securities of any series shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive Officer, its
President, one of its Vice Presidents or its Treasurer, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be manual or facsimile.
Coupons shall bear the facsimile signature of the Treasurer or any Assistant
Treasurer of the Company.
Debt Securities and Coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Debt Securities and Coupons or did not hold such offices at the date of such
Debt Securities and Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities, with appropriate
Coupons, if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities and Coupons and the Trustee in accordance with
the Company Order shall authenticate and deliver such Debt Securities and
Coupons; provided, however, that, in connection with its sale during the
-------- -------
"restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
-------- -------
Bearer Security (other than a temporary Global Note in bearer form) may be
delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
to the Euro-clear Operator or to CEDEL a certificate substantially in the form
set forth in Exhibit A to this Indenture. If all the Debt Securities of any one
series are not to be issued at one time and if a Board Resolution or
supplemental indenture relating to such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities such as interest rate, Stated Maturity, date of issuance
and date from which interest, if any, shall accrue. If
<PAGE>
28
any Debt Security shall be represented by a permanent Global Note, then, for
purposes of this Section and Section 3.04, the notation of a beneficial owner's
interest therein upon original issuance of such Debt Security or upon exchange
of a portion of a temporary Global Note shall be deemed to be delivery in
connection with the original issuance of such beneficial owner's interest in
such permanent Global Note. Except as permitted by Section 3.06 or 3.07, the
Trustee shall not authenticate and deliver any Bearer Security unless all
Coupons for interest then matured have been detached and cancelled.
The Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities and Coupons of such series, (i) the supplemental
indenture or the Board Resolution by or pursuant to which the form and terms of
such Debt Securities and Coupons have been approved and (ii) an Opinion of
Counsel substantially to the effect that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt Securities and
Coupons conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Trustee to authenticate and deliver
such Debt Securities and Coupons;
(2) the forms and terms of such Debt Securities and Coupons have been
established in conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt Securities and
Coupons have been established in a supplemental indenture, the execution
and delivery of such supplemental indenture has been duly authorized by all
necessary corporate action of the Company, such supplemental indenture has
been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a valid and
binding obligation enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law); and
(4) the execution and delivery of such Debt Securities and Coupons
have been duly authorized by all necessary corporate action of the Company
and such Debt Securities and Coupons have been duly executed by the Company
and, assuming due authentication by the Trustee and delivery by the
Company, are valid and binding obligations enforceable against the Company
in accordance with their terms, entitled
<PAGE>
29
to the benefit of the Indenture, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and
subject to such other exceptions as counsel shall request and as to which
the Trustee shall not reasonably object.
The Trustee shall not be required to authenticate such Debt Securities
and Coupons if the issuance of such Debt Securities and Coupons pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Debt Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary or permanent or
other definitive Bearer Security in global form) shall be dated as of the date
of original issuance of the first Debt Security of such series to be issued,
except as otherwise provided pursuant to Section 3.01 with respect to the Bearer
Securities of any series.
No Debt Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Debt Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.08 together with a written statement (which need not
comply with Section 1.02) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global
-------------------------------------------------------
Notes for Definitive Bearer Securities; Global Notes Representing Registered
- ----------------------------------------------------------------------------
Securities.
- ----------
(a) Pending the preparation of definitive Registered Securities of
any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed,
<PAGE>
30
typewritten, mimeographed or otherwise produced, in any authorized denomination
for Registered Securities of such series, substantially of the tenor of the
definitive Registered Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Registered Securities may determine, as conclusively
evidenced by their execution of such Registered Securities. Every such
temporary Registered Security shall be executed by the Company and shall be
authenticated and delivered by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Registered Securities in lieu of which they are issued. In the case of any
series issuable as Bearer Securities, such temporary Debt Securities may be in
global form, and with one or more Coupons or without Coupons, representing such
of the Outstanding Debt Securities of such series as shall be specified therein.
Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.05 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of the
same series of authorized denominations and of a like Stated Maturity and like
terms and provisions; provided, however, that no definitive Bearer Security
-------- -------
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security (including a permanent
- -------- -------
Bearer Security in global form) shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section
3.03. Until so exchanged, the temporary Registered Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 3.01, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon
<PAGE>
31
Company Order the Trustee shall authenticate, any temporary Global Note and any
permanent Bearer Security in global form (as described below, a "permanent
Global Note") upon the same conditions and in substantially the same manner, and
with the same effect, as definitive Bearer Securities, and the temporary or
permanent Global Note, as the case may be, shall, unless otherwise specified
therein, be delivered by the Trustee to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of the Euro-clear
Operator or CEDEL, as the case may be, for credit to the account of the Company
(in the case of sales of Bearer Securities by the Company directly to investors)
or the managing underwriter (in the case of sales of Bearer Securities by the
Company to underwriters) or such other accounts as the Company or the managing
underwriter, respectively, may direct.
On or after the date specified in or determined pursuant to the terms
of any temporary Global Note which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Note (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes in definitive form without
interest coupons. On or after the Exchange Date such temporary Global Note
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, at its principal office in London (or at such other
place specified outside the United States pursuant to Section 3.01) and
following such surrender, the Trustee shall (1) endorse the temporary Global
Note to reflect the reduction of its principal amount by an equal aggregate
principal amount of such Debt Security, (2) endorse the applicable permanent
Global Note, if any, to reflect the initial amount, or an increase in the amount
of Debt Securities represented thereby, (3) manually authenticate such
definitive Debt Securities (including any permanent Global Note), (4) deliver
such definitive Debt Securities to the Holder thereof or, if such definitive
Debt Security is a permanent Global Note, deliver such permanent Global Note to
the Common Depositary to be held outside the United States for the accounts of
the Euro-clear Operator or CEDEL, as the case may be, for credit to the
respective accounts at the Euro-clear Operator or CEDEL, as the case may be,
designated by or on behalf of the beneficial owners of such Debt Securities (or
to such other accounts as they may direct) and (5) redeliver such temporary
Global Note to the Common Depositary, unless such temporary Global Note shall
have been cancelled in accordance with Section 3.08 hereof; provided, however,
-------- -------
that, unless otherwise specified in such temporary Global Note, upon such
presentation by the Common Depositary, such temporary Global Note shall be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by the Euro-clear Operator,
<PAGE>
32
as to the portion of such temporary Global Note held for its account then to be
exchanged for definitive Debt Securities (including any permanent Global Note),
and a certificate dated the Exchange Date or a subsequent date and signed by
CEDEL, as to the portion of such temporary Global Note held for its account then
to be exchanged for definitive Debt Securities (including any permanent Global
Note), each substantially in the form set forth in Exhibit B to this Indenture.
Each certificate substantially in the form of Exhibit B hereto of the Euro-clear
Operator or CEDEL, as the case may be, shall be based on certificates of the
account holders listed in the records of the Euro-clear Operator or CEDEL, as
the case may be, as being entitled to all or any portion of the applicable
temporary Global Note. An account holder of the Euro-clear Operator or CEDEL,
as the case may be, desiring to effect the exchange of an interest in a
temporary Global Note for an interest in definitive Debt Securities (including
any permanent Global Note) shall instruct the Euro-clear Operator or CEDEL, as
the case may be, to request such exchange on its behalf and shall deliver to the
Euro-clear Operator or CEDEL, as the case may be, a certificate substantially in
the form of Exhibit A hereto and dated no earlier than 10 days prior to the
Exchange Date. Until so exchanged, temporary Global Notes shall in all respects
be entitled to the same benefits under this Indenture as definitive Debt
Securities (including any permanent Global Note) of the same series
authenticated and delivered hereunder, except as to payment of interest, if any.
The delivery to the Trustee by the Euro-clear Operator or CEDEL of any
certificate substantially in the form of Exhibit B hereto may be relied upon by
the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee definitive Debt Securities in an aggregate principal amount equal to the
principal amount of such temporary Global Note, executed by the Company. At any
time, on or after the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the request of or on
behalf of the beneficial owner, a Debt Security represented by a temporary
Global Note or a permanent Global Note, as the case may be, may be exchanged, in
whole or from time to time in part, for definitive Debt Securities without
charge and the Trustee shall authenticate and deliver, in exchange for each
portion of such temporary Global Note or such permanent Global Note, an equal
aggregate principal amount of definitive Debt Securities of the same series of
authorized denominations and of a like Stated Maturity and with like terms and
conditions, as the portion of such temporary Global Note or such permanent
<PAGE>
33
Global Note to be exchanged, which, unless the Debt Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, as
contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that definitive Bearer Securities
-------- -------
shall be delivered in exchange for a portion of the temporary Global Note or the
permanent Global Note only in compliance with the requirements of the second
preceding paragraph. On or prior to the forty-fifth day following receipt by the
Trustee of such notice with respect to a Debt Security, or, if such day is not a
Business Day, the next succeeding Business Day, the temporary Global Note or the
permanent Global Note, as the case may be, shall be surrendered by the Common
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Debt Securities
without charge following such surrender, upon the request of the Euro-clear
Operator or CEDEL, as the case may be, and the Trustee shall (1) endorse the
applicable temporary Global Note or the permanent Global Note to reflect the
reduction of its principal amount by the aggregate principal amount of such Debt
Security, (2) cause the terms of such Debt Security and Coupons, if any, to be
entered on a definitive Debt Security, (3) manually authenticate such definitive
Debt Security, and (4) if a Bearer Security is to be delivered, deliver such
definitive Debt Security outside the United States to the Euro-clear Operator or
CEDEL, as the case may be, for or on behalf of the beneficial owner thereof, in
exchange for a portion of such temporary Global Note or the permanent Global
Note.
Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Note or the permanent Global Note,
except that a Person receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Debt Securities in person at the
offices of the Euro-clear Operator or CEDEL. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary Global Note or
the permanent Global Note shall be delivered only outside the United States.
Notwithstanding the foregoing, in the event of redemption or acceleration of all
or any part of a temporary Global Note prior to the Exchange Date, a permanent
Global Note or definitive Bearer Securities, as the case may be, will not be
issuable in respect of such temporary Global Note or such portion thereof, and
payment thereon will instead be made as provided in such temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary Global
Note or the permanent Global Note shall in all
<PAGE>
34
respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of the same series and tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
3.01, interest payable on such temporary Global Note on an Interest Payment Date
for Debt Securities of such series occurring prior to the applicable Exchange
Date shall be payable to the Euro-clear Operator or CEDEL on such Interest
Payment Date upon delivery by the Euro-clear Operator or CEDEL to the Trustee of
a certificate or certificates substantially in the form set forth in Exhibit B
to this Indenture, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary Global Note on such Interest Payment Date and who have
each delivered to the Euro-clear Operator or CEDEL, as the case may be, a
certificate substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a temporary Global Note or the permanent
Global Note shall not bear a coupon for any interest which shall theretofore
have been duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by
the Company to the Trustee in accordance with the provisions of this Section
3.04.
With respect to Exhibits A and B to this Indenture, the Company may,
in its discretion and if required or desirable under applicable law, substitute
one or more other forms of such exhibits for such exhibits, eliminate the
requirement that any or all certificates be provided, or change the time that
any certificate may be required, provided that such substitute form or forms or
notice of elimination or change of such certification requirement have
theretofore been delivered to the Trustee with a Company Request and such form
or forms, elimination or change is reasonably acceptable to the Trustee.
(c) If the Company shall establish pursuant to Section 3.01 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 3.03 and the Company Order with respect to
such series, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially to
the following effect: "This Debt Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to
<PAGE>
35
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary, unless and until this Debt Security is exchanged in whole or in part
for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.05,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. Depositary for such series to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor U.S.
Depositary for such series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Debt Securities of such series.
If a successor U.S. Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such
<PAGE>
36
series shall have occurred and be continuing, the Company will promptly execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Debt Securities of such series, will authenticate and
deliver, Registered Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Note or
Notes representing such series in exchange for such Global Note or Notes.
If specified by the Company pursuant to Section 3.01 with respect to
Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, of any authorized denomination
as requested by such Person in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Note and the aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be cancelled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall make available such Debt Securities to the Persons in whose names such
Debt Securities are so registered.
Section 3.05. Registration, Transfer and Exchange.
-----------------------------------
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar"
<PAGE>
37
for the purpose of registering Registered Securities and registering transfers
and exchanges of Registered Securities as herein provided; provided, however,
-------- -------
that the Company may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.04 and this Section 3.05, at
the option of the Holder, Registered Securities of any series may be exchanged
for other Registered Securities of the same series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 3.01, the
provisions of this Section 3.05(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.01 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such
<PAGE>
38
payment; provided, however, that except as otherwise provided in Section 12.03,
-------- -------
interest represented by Coupons shall be payable only upon presentation and
surrender of those Coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and of a like Stated Maturity and with like terms
and conditions after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Security or Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.01, in no
event may Registered Securities, including Registered Securities received in
exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange of Debt
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Debt Securities
surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing .
<PAGE>
39
No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.04(b) or 3.06. The Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration, transfer or
exchange of Debt Securities, other than those exchanges expressly provided in
this Indenture to be made at the Company's own expense or without expense or
without charge to the Holders and not involving any transfer.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Debt Securities of such series selected for redemption under Section 13.03
and ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities.
-----------------------------------------------------
If (i) any mutilated Debt Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee at its Corporate Trust Office (in the
case of Registered Securities) or at its principal London office (in the case of
Bearer Securities), or (ii) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Debt Security or any
Coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any Paying Agent
harmless, and neither the Company nor the Trustee receives notice that such Debt
Security or Coupon has been acquired by a bona fide purchaser, then the Company
shall execute and upon Company Request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Debt Security or in exchange for the Coupon Security to which such
mutilated, destroyed, lost or stolen Coupon appertained, a new Debt Security of
the same series of like Stated Maturity and with like terms and conditions and
like principal amount, bearing a number not contemporaneously Outstanding, and,
in the case of a Coupon Security, with such Coupons attached thereto that
neither gain nor loss in interest shall result from such exchange or
substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or
<PAGE>
40
Coupon in accordance with its terms; provided, however, that principal of (and
-------- -------
premium, if any) and any interest on Bearer Securities shall, except as
otherwise provided in Section 12.03, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 3.01 or except as otherwise provided in this Section
3.06, any interest on Bearer Securities shall be payable only upon presentation
and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or Coupon of any series issued pursuant to
this Section shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security or
Coupon shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Debt Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 3.01 with respect to the Debt
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.01 or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if provided pursuant to
Section 3.01, by wire transfer to an account designated by the Registered
Holder.
(b) Interest on any Coupon Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Holder of the Coupon which has
<PAGE>
41
matured on such Interest Payment Date upon surrender of such Coupon on such
Interest Payment Date at the principal London office of the Trustee or at such
other Place of Payment outside the United States specified pursuant to Section
3.01.
Interest on any Bearer Security (other than a Coupon Security) which
is payable and is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Holder of the Bearer Security upon presentation of
such Bearer Security and notation thereon on such Interest Payment Date at the
principal London office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 3.01.
Unless otherwise specified pursuant to Section 3.01, at the direction
of the Holder of any Bearer Security or Coupon payable in Dollars, payment on
such Bearer Security or Coupon will be made by check drawn on a bank in The City
of New York or, if agreeable to the Trustee, by wire transfer to a Dollar
account maintained by such Holder outside the United States. If such payment at
the offices of all Paying Agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section 3.01, at
the direction of the Holder of any Bearer Security or Coupon payable in a
Foreign Currency, payment on such Bearer Security or Coupon will be made by a
check drawn on a bank outside the United States or by wire transfer to an
appropriate account maintained by such Holder outside the United States. Except
as provided in this paragraph, no payment on any Bearer Security or Coupon will
be made by mail to an address in the United States or by wire transfer to an
account in the United States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of
<PAGE>
42
Defaulted Interest proposed to be paid on each such Registered Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money in the Currency or Currency
unit in which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Sections 3.01 or 3.10) equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which date
shall be not more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holders of such Registered Securities
at their addresses as they appear in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 1.O5
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
<PAGE>
43
(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
In the case of any Registered Security of any series that is
convertible, which Registered Security is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Registered Security (or one or more predecessor
Registered Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Registered Security which is converted,
interest whose Stated Maturity is after the date of conversion of such
Registered Security shall not be payable.
Section 3.08. Cancellation.
------------
Unless otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange or credit against any sinking fund and all
Coupons surrendered for payment or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Debt Securities and
matured Coupons so delivered shall be promptly cancelled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Debt
Securities or Coupons previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Debt Securities previously authenticated hereunder which the Company has not
issued, and all Debt Securities or Coupons so delivered shall be promptly
cancelled by the Trustee. No Debt Securities or Coupons shall be authenticated
in lieu of or in exchange for any Debt Securities or Coupons cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Debt Securities and Coupons held by the Trustee shall be destroyed by
the Trustee unless the Company shall request otherwise. The acquisition of any
Debt Securities or Coupons by the Company shall not operate as a redemption or
satisfaction of the indebtedness represented thereby unless and until such Debt
Securities or Coupons are surrendered to the Trustee for cancellation. In the
case of any temporary Global Note which shall be destroyed if the entire
aggregate principal amount of the Debt Securities represented thereby has been
exchanged, the certificate of destruction shall state that all certificates
required pursuant to Section 3.04 hereof and substantially in the form of
Exhibit B hereto, to be given by the Euro-clear Operator or CEDEL, have been
duly presented to the Trustee by the Euro-clear Operator or CEDEL, as the case
may be. Permanent Global Notes shall not be destroyed until exchanged in full
for definitive Debt Securities or until payment thereon is made in full.
<PAGE>
44
Section 3.09. Computation of Interest.
-----------------------
Except as otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.10. Currency of Payments in Respect of Debt Securities.
--------------------------------------------------
(a) Except as otherwise specified pursuant to Section 3.01 for Bearer
Securities of any series, payment of the
<PAGE>
45
principal of (and premium, if any) and interest on Bearer Securities of such
series denominated in any Currency will be made in such Currency.
(b) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (c) below or the Holders of
which have not made the election provided for in paragraph (c) below, except as
provided in paragraph (e) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.01 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance satisfactory to the
Trustee, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (but any such change must be made
not later than the close of business on the Election Date immediately preceding
the next payment date to be effective for the payment to be made on such payment
date and no such change or election may be made with respect to payments to be
made on any Registered Security of such series with respect to which an Event of
Default has occurred or notice of redemption has been given by the Company
pursuant to Article Thirteen). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee by the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in paragraph (b) of
this Section 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.01, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice specifying, in the Currency in which each series of
the Registered Securities is payable, the respective aggregate amounts of
principal of (and premium, if any) and any interest on the Registered Securities
to be paid on such payment date, specifying the amounts so payable in respect of
the Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (c) above. If the election referred to in paragraph (c)
above has been provided for pursuant to Section 3.01 and if at least one Holder
has made such
<PAGE>
46
election, then, on the second Business Day preceding each payment date, the
Company will deliver to the Trustee an Exchange Rate Officer's Certificate in
respect of the Currency payments to be made on such payment date. The Currency
amount receivable by Holders of Registered Securities who have elected payment
in a Currency as provided in paragraph (c) above shall be determined by the
Company on the basis of the applicable Market Exchange Rate in effect on the
third Business Day (the "Valuation Date") immediately preceding each payment
date.
(e) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other Currency unit in which any of the Debt Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, the ECU or such
other Currency unit occurring after the last date on which such Foreign
Currency, the ECU or such other Currency unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by the Trustee or
any Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in the
case of a Currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Currency Determination Agent in the manner provided in
paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (c) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Currency Determination Agent, and subject to the provisions of paragraph
(i) below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
<PAGE>
47
(i) For purposes of this Section 3.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant Currency unit, including, but not limited to,
the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single Currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more Currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more Currencies with
appropriate Dollar equivalents at the Market Exchange Rate on the date of
such replacement equal to the Dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such date,
and such amounts shall thereafter be Specified Amounts and such Currencies
shall thereafter be Component Currencies. If after the Conversion Date of
the relevant Currency unit, including but not limited to, the ECU, a
Conversion Event (other than any event referred to above in this definition
of "Specified Amount") occurs with respect to any Component Currency of
such Currency unit, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect to any payment
date, and with respect to the Maturity shall mean the record date (if
within 16 or fewer days prior to the Maturity) immediately preceding the
Maturity, and with respect to any series of Debt Securities whose record
date immediately preceding the Maturity is more than 16 days prior to the
Maturity or any series of Debt Securities for which no record dates are
provided with respect to interest
<PAGE>
48
payments, shall mean the date which is 16 days prior to the Maturity.
(j) All decisions and determinations of the Currency Determination
Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit and the Market Exchange Rate shall be in its
sole discretion and shall, in the absence of manifest error, be conclusive for
all purposes and irrevocably binding upon the Company and all Holders of the
Debt Securities denominated or payable in the relevant Currency. In the event
of a Conversion Event with respect to a Foreign Currency, the Company, after
learning thereof, will immediately give written notice thereof to the Trustee
(and the Trustee will promptly thereafter give notice in the manner provided in
Section 1.05 to the Holders) specifying the Conversion Date. In the event of a
Conversion Event with respect to the ECU or any other Currency unit in which
Securities are denominated or payable, the Company, after learning thereof, will
immediately give notice thereof to the Trustee (and the Trustee will promptly
thereafter give written notice in the manner provided in Section 1.05 to the
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event of any subsequent
change in any Component Currency as set forth in the definition of Specified
Amount above, the Company, after learning thereof, will similarly give written
notice to the Trustee. The Trustee shall be fully justified and protected in
relying and acting upon information received by it from the Company and the
Currency Determination Agent and shall not otherwise have any duty or obligation
to determine such information independently.
(k) For purposes of any provision of the Indenture where the Holders
of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Debt Securities denominated in a Foreign Currency will be the amount in Dollars
based upon the Market Exchange Rate for Debt Securities of such series, as of
the date for determining whether the Holders entitled to perform such Act have
performed it, or as of the date of such decision or determination by the
Trustee, as the case may be.
Section 3.11. Judgments.
---------
If for the purpose of obtaining a judgment in any court with respect
to any obligation of the Company hereunder or under any Debt Security, it shall
become necessary to convert into any other Currency any amount in the Currency
due hereunder or under
<PAGE>
49
such Debt Security, then such conversion shall be made at the Market Exchange
Rate as in effect on the date the Company shall make payment to any Person in
satisfaction of such judgment. If pursuant to any such judgment, conversion
shall be made on a date other than the date payment is made and there shall
occur a change between such Market Exchange Rate and the Market Exchange Rate as
in effect on the date of payment, the Company agrees to pay such additional
amounts (if any) as may be necessary to ensure that the amount paid is equal to
the amount in such other Currency which, when converted at the Market Exchange
Rate as in effect on the date of payment or distribution, is the amount then due
hereunder or under such Debt Security. Any amount due from the Company under
this Section 3.11 shall be due as a separate debt and is not to be affected by
or merged into any judgment being obtained for any other sums due hereunder or
in respect of any Debt Security. In no event, however, shall the Company be
required to pay more in the Currency or Currency unit due hereunder or under
such Debt Security at the Market Exchange Rate as in effect when payment is made
than the amount of Currency stated to be due hereunder or under such Debt
Security so that in any event the Company's obligations hereunder or under such
Debt Security will be effectively maintained as obligations in such Currency,
and the Company shall be entitled to withhold (or be reimbursed for, as the case
may be) any excess of the amount actually realized upon any such conversion over
the amount due and payable on the date of payment or distribution.
Section 3.12. Exchange Upon Default.
---------------------
If default is made in the payments referred to in Section 12.01, the
Company hereby undertakes that upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof the Company will issue and the Trustee will authenticate
and deliver to the bearer or holder of such permanent Global Note duly executed
and authenticated definitive Debt Securities with the same issue date and
maturity date as set out in such permanent Global Note.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange or conversion of such Debt
Securities herein
<PAGE>
50
expressly provided for or expressly provided for in the terms of the Debt
Securities of such series pursuant to Section 3.01 and rights to receive
payments of principal (and premium, if any) and interest on such Debt
Securities) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Debt Securities and the Coupons, if any, of such series
theretofore authenticated and delivered (other than (i) Debt Securities and
Coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06, (ii) Coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not
required or has been waived under Section 3.05, (iii) Coupons appertaining
to Bearer Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
13.06, and (iv) Debt Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 12.04) have been
delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) of this subclause (B),
has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in which
such Debt Securities are denominated (except as otherwise provided pursuant
to Sections 3.01 or 3.10) sufficient to pay and discharge the entire
indebtedness on such Debt Securities for principal (and premium, if any)
and interest to the date of such deposit (in the case of Debt Securities
which have become due and payable) or to the Stated Maturity or
<PAGE>
51
Redemption Date, as the case may be, but excluding, however, the amount of
any moneys for the payment of principal (and premium, if any) or interest
(1) theretofore deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 12.04 or (2) paid to any state pursuant to its
unclaimed property or similar laws; provided, however, in the event a
-------- -------
petition for relief under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy,
insolvency or other similar law, is filed with respect to the Company
within 91 days after the deposit and the Trustee is required to return the
deposited money to the Company, the obligations of the Company under this
Indenture with respect to such Debt Securities shall not be deemed
terminated or discharged;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.01, and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
12.04, shall survive. If, after the deposit referred to in Section 4.01 has
been made, (x) the Holder of a Debt Security is entitled to, and does, elect
pursuant to Section 3.10(c), to receive payment in a Currency other than that in
which the deposit pursuant to Section 4.01 was made, or (y) if a Conversion
Event occurs with respect to the Currency in which the deposit was made or
elected to be received by the Holder pursuant to Section 3.10(c), then the
indebtedness represented by such Debt Security shall be fully discharged to the
extent that the deposit made with respect to such Debt Security shall be
converted into the Currency in which such payment is made.
Section 4.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 12.04, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
Coupons, if any, and this Indenture, to the payment, either
<PAGE>
52
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
-----------------
"Event of Default" wherever used herein with respect to Debt
Securities of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Debt Security or
any payment with respect to the Coupons, if any, of such series when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (and premium, if any,
on) any Debt Security of such series at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which expressly has been included
in this Indenture solely for the benefit of Debt Securities of a series
other than such series), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(4) default in the performance of any other term or provision of any
Indebtedness of the Company (other than Debt Securities of such series)
that results in such Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable if the amount of such Indebtedness which shall have
<PAGE>
53
become or shall have been declared due and payable as a result of such
default is in excess of $10,000,000, and such acceleration shall not have
been rescinded or annulled, or such Indebtedness shall not have been
discharged, within a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Debt Securities of such series, a written notice
specifying such default or defaults and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy, insolvency or other
similar law, or a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, or
the consent by it to the entry of an order for relief in an involuntary
case under any such law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of
the Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of its creditors, or the admission by it
in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to clause (21) of Section 3.01.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Debt Securities of any series
at the time Outstanding occurs and is continuing,
<PAGE>
54
then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of such series may declare
the principal amount (or, if any Debt Securities of such series are Discount
Securities, such portion of the principal amount of such Discount Securities as
may be specified in the terms of such Discount Securities) of all the Debt
Securities of such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. Upon payment of such amount in the Currency in
which such Debt Securities are payable (except as otherwise provided pursuant to
Sections 3.01 or 3.10), all obligations of the Company in respect of the payment
of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Debt Securities are payable (except as otherwise
provided pursuant to Section 3.01 or 3.10) sufficient to pay
(A) all overdue installments of interest on all Debt Securities or
all overdue payments with respect to any Coupons of such series,
(B) the principal of (and premium, if any, on) any Debt Securities of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest on each Debt Security of
such series or upon overdue payments on any Coupons of such
series at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; provided, however, that all
-------- -------
sums payable under this clause (D) shall be paid in Dollars;
<PAGE>
55
and
(2) All Events of Default with respect to Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of
such series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Debt Security or any payment with respect to any Coupons when such
interest or payment becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of principal of (or premium, if
any, on) any Debt Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
other than any such compensation, expenses, disbursement, or advances which
result from the Trustee's negligence or bad faith.
If the Company fails to pay such amount forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
<PAGE>
56
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities and
Coupons of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section 5.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and Coupons, if any, of a particular
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
if the Debt Securities of such series are Discount Securities, such portion
of the principal amount as may be due and payable with respect to such
series pursuant to a declaration in accordance with Section 5.02) (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities and Coupons of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel other
than any such compensation, expenses, disbursements and advances which
result from the Trustee's negligence or bad faith) and of the Holders of
such Debt Securities and Coupons allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to
<PAGE>
57
the making of such payments directly to such Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07 other than any such compensation, expenses,
disbursements and advances which result from the Trustee's negligence or bad
faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
-----------------------------------------------------
Securities or Coupons.
- ---------------------
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel other than any such
compensation, expenses, disbursements and advances which result from the
Trustee's negligence or bad faith, be for the ratable benefit of the Holders of
the Debt Securities or Coupons in respect of which such judgment has been
recovered.
Section 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or Coupons of any
series in respect of which money has been collected and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities or
Coupons of such series, in respect of which or for the benefit of which
such money has been
<PAGE>
58
collected ratably, without preference or priority of any kind, according to
the amounts due and payable on such Debt Securities or Coupons for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.07. Limitation on Suits.
-------------------
No Holder of any Debt Security or Coupon of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders. For the protection and enforcement of the provisions of this Section
5.07, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
<PAGE>
59
Section 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or of any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.07) interest on such Debt Security or Coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
Coupon (or, in the case of redemption, on the Redemption Date) and to convert
any Debt Security that is convertible and to institute suit for the enforcement
of any such payment and interest thereon, and such right shall not be impaired
without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and such Holder shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Indenture or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
<PAGE>
60
Section 5.12. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 6.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in
any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities and Coupons, if any, of any such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which pursuant to
Article Eleven cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Debt Securities of such series under this Indenture, but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion
<PAGE>
61
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit other
than the Trustee of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section had not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder or group of Holders holding in the aggregate more than 10% in principal
amount of the Outstanding Debt Securities of any series, or to any suit
instituted by any Holder of a Debt Security or Coupon for the enforcement of the
payment of the principal of (or premium, if any) or interest on such Debt
Security or the payment of any Coupon on or after the respective Stated Maturity
or Maturities expressed in such Debt Security or Coupon (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt Securities of
any series has occurred and is continuing, the Trustee shall, with respect to
the Debt Securities of such series, exercise such of the rights and powers
vested in it by
<PAGE>
62
this Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs. Notwithstanding the foregoing, the Trustee shall not be
required to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Debt Securities of
any series in good faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding Debt Securities of such
series relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities or Coupons, if any, of any series, the Trustee shall
give notice to all Holders of Debt Securities and Coupons of such series of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the
-------- -------
payment of the principal of (or premium, if any) or interest on any Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt
<PAGE>
63
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Debt Securities and of Coupons of such series; and provided, further,
-------- -------
that in the case of any default of the character specified in Section 5.01(3)
with respect to Debt Securities of such series, no such notice to Holders shall
be given until at least 45 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to Debt
Securities of such series.
Notice given pursuant to this Section 6.02 shall be transmitted by
mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have within
two years preceding such transmission, filed their names and addresses with
the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture.
Section 6.03. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein
<PAGE>
64
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of any series pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, unless
requested in writing to do so by the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series; provided, however,
-------- -------
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
Section 6.04. Not Responsible for Recitals or Issuance of Debt
------------------------------------------------
Securities.
- ----------
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities or Coupons, if any, of any series. The
Trustee shall not be accountable for the use or
<PAGE>
65
application by the Company of any Debt Securities or the proceeds thereof.
Section 6.05. May Hold Debt Securities.
------------------------
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities or Coupons, and, subject to Sections 6.08
and 6.13, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in Trust.
-------------------
Subject to the provisions of the last paragraph of Section 12.04, all
moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received. Money in any
Currency held by the Trustee or any Paying Agent in trust hereunder need not be
segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
Section 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
in Dollars for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may result from its negligence or
bad faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it harmless
against, any loss, liability, damage or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust or performance of its duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the
<PAGE>
66
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Debt Securities
and Coupons, if any, upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of amounts due on
the Debt Securities and Coupons.
The obligations of the Company under this Section 6.07 to compensate
and indemnify the Trustee for expenses, disbursements and advances shall survive
the satisfaction and discharge of this Indenture.
Section 6.08. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire any conflicting interest, as
defined in the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. The
following indenture shall be deemed to be specifically described herein for
purposes of clause (1) of the first proviso contained in Section 310(b) of the
Trust Indenture Act: the Indenture dated as of June 15, 1985 between the Company
and Trustee providing for the issuance of an unlimited amount of unsecured debt
securities.
Section 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $75,000,000, subject to supervision or examination by Federal, State
or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall
<PAGE>
67
become effective until the acceptance of appointment by the successor Trustee
under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 with respect
to the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to the Debt Securities of any series and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee with respect to all Debt Securities, or (ii) subject to
Section 5.14, any Holder who has been a bona fide Holder of a Debt Security of
any series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee for the Debt
Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
<PAGE>
68
Trustees with respect to the Debt Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Debt Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Debt Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Debt
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Debt Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Debt Securities of any series shall have been so
appointed by the Company or the Holders of such series and accepted appointment
in the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months may, subject to
Section 5.14, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.05 to the
Holders of Debt Securities of such series. Each notice shall include the name
of the successor Trustee with respect to the Debt Securities of such series and
the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, each such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee, but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such
<PAGE>
69
retiring Trustee hereunder, subject nevertheless to its claim, if any, provided
for in Section 6.07.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other such Trustee and
that no Trustee shall be responsible for any notice given to or received by or
any act or failure to act on the part of any other Trustee hereunder; and upon
the execution and delivery of any such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series to which the appointment of such successor Trustee relates, but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
<PAGE>
70
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
- --------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Debt Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any obligor upon the Debt Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such obligor).
Section 6.14. Appointment of Authenticating Agent.
-----------------------------------
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities
of each such series authenticated by such Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in
this Indenture to the authentication and
<PAGE>
71
delivery of Debt Securities of any series by the Trustee for such series or to
the Trustee's Certificate of Authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee for such series by
an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of such Trustee by such Authenticating Agent, except that
only the Trustee may authenticate Debt Securities upon original issuance and
pursuant to Section 3.06 hereof. Such Authenticating Agent shall at all times
be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$10,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more or all series of Debt Securities, the Trustee for such series shall
upon Company Request appoint a successor Authenticating Agent, and the Company
shall provide notice of such appointment to all Holders of Debt Securities of
such series in the manner and to the extent provided in Section 1.05. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. The Trustee for the Debt
<PAGE>
72
Securities of such series agrees to pay to the Authenticating Agent for such
series from time to time reasonable compensation for its services, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 6.07. The Authenticating Agent for the Debt Securities of
any series shall have no responsibility or liability for any action taken by it
as such at the direction of the Trustee for such series.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By _________________________
As Authenticating Agent
By _________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee
--------------------------
Names and Addresses of Holders.
- ------------------------------
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.01 if the Registered Securities of such series do not bear
interest), a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Registered Holders as of the date 15 days next
preceding each such Regular Record Date (or such semi-annual dates, as the case
may be); and
<PAGE>
73
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
- -------- -------
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the Holders of Bearer Securities of all series; provided, however,
-------- -------
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
Section 7.02. Preservation of Information;
----------------------------
Communication to Holders.
- ------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.01
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.03(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the Holders obtained from such
information since the delivery of the next previous list, if any, destroy any
list delivered to itself as Trustee which was compiled from information received
by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.03(c)(2).
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants
<PAGE>
74
propose to transmit, then the Trustee shall, within five Business Days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders
of Debt Securities of such series or of all Debt Securities, as the case
may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written inquest of such applicants,
mail to the Holders of Debt Securities of such series or all Holders, as the
case may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.02(a), a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Debt Securities of such series or all Holders, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of Debt Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names
<PAGE>
75
and addresses of the Holders in accordance with Section 7.02(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing of any material pursuant to a
request made under Section 7.02(b).
Section 7.03. Reports by Trustee.
------------------
(a) Within 60 days after January 15 of each year, commencing January
15, 1995, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as Trustee, in the manner hereinafter provided in this Section 7.03, a
brief report dated such date with respect to any of the following events which
may have occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Debt Securities of such series, on any property or
funds held or collected by it as Trustee, except that the Trustee shall not
be required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Outstanding Debt Securities of such series on the date of such
report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or any other obligor on the Debt
Securities of such series) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 311(b)(2),(3),(4)
or (6) of the Trust Indenture Act;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
<PAGE>
76
(6) any additional issue of Debt Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Debt Securities of such series, except action in
respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.02 (a)) for
which it acts as the Trustee, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debt Securities of such series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
subsection, except that the Trustee for each series shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Debt Securities of such
series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 7.03 shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the Security
Register;
(2) to such Holders of Bearer Securities of any series as have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection (b) of this
Section 7.03, to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the Trustee
in accordance with Section 7.02(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each
<PAGE>
77
stock exchange upon which any Debt Securities of such series are listed, with
the Commission and also with the Company. The Company will notify the Trustee
when any series of Debt Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
------------------
The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security listed and
registered on a national securities exchange as may be required from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner and to
the extent provided in Section 7.03, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
<PAGE>
78
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders.
---------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the
Outstanding Debt Securities of any series may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders.
Section 8.02. Proof of Ownership; Proof of Execution of Instruments
-----------------------------------------------------
by Holder.
- ---------
The ownership of Registered Securities of any series shall be proved
by the Security Register for such series or by a certificate of the Security
Registrar for such series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state that on the date
thereof a Bearer Security bearing a specified identifying number or other mark
was deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the Person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced to the Trustee, (2) such Bearer Security
shall be produced by some other Person to the Trustee, (3) such Bearer Security
shall have been registered on the Security Register, if, pursuant to Section
3.01, such Bearer Security can be so registered, or (4) such Bearer Security
shall have been cancelled or paid.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of
the execution of a writing appointing an agent or proxy and of the execution of
any instrument by a Holder or his
<PAGE>
79
agent or proxy shall be sufficient and conclusive in favor of the Trustee and
the Company if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgements of deeds, that the person executing
such instrument acknowledged to him the execution thereof, or by an affidavit of
a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other Person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.06.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
Section 8.03. Persons Deemed Owners.
---------------------
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of the
principal of (and premium, if any) and (subject to Section 3.07) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary. All payments made to any Holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Debt Security or Coupon.
Section 8.04. Revocation of Consents; Future Holders Bound.
--------------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any Act by the Holders of the
percentage in aggregate principal
<PAGE>
80
amount of the Outstanding Debt Securities specified in this Indenture in
connection with such Act, any Holder of a Debt Security the number, letter or
other distinguishing symbol of which is shown by the evidence to be included in
the Debt Securities the Holders of which have consented to such Act may, by
filing written notice with the Trustee at the Corporate Trust Office and upon
proof of ownership as provided in Section 8.02, revoke such Act so far as it
concerns such Debt Security. Except as aforesaid, any such Act taken by the
Holder of any Debt Security shall be conclusive and binding upon such Holder
and, subject to the provisions of Section 5.08, upon all future Holders of such
Debt Security and all past, present and future Holders of Coupons, if any,
appertaining thereto and of any Debt Securities and Coupons issued on transfer
or in lieu thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security or
Coupons or such other Debt Securities or Coupons.
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.
--------------------
A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Article Nine for any of
the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of
the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Outstanding Debt Securities of any one or more or all series, as the case
may be, under any other provision of this Indenture or under applicable
law.
<PAGE>
81
Section 9.02. Call of Meetings by Trustee.
---------------------------
The Trustee for any series may at any time call a meeting of Holders
of such series to take any action specified in Section 9.01, to be held at such
time or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 1.05. Such notice shall be given
not less than 20 days nor more than 90 days prior to the date fixed for the
meeting.
Section 9.03. Call of Meetings by Company or Holders.
--------------------------------------
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Debt Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 9.01, by giving notice thereof as provided in Section
9.02.
Section 9.04. Qualifications for Voting.
-------------------------
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
Section 9.05. Regulations.
-----------
Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
<PAGE>
82
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.03, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
-------- -------
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing duly designating
him as the person to vote on behalf of Holders of Debt Securities of such
series. Any meeting of Holders with respect to which a meeting was duly called
pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to
time by a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
Section 9.06. Voting.
------
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be taken
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
9.02. The record shall show the serial numbers of the Debt Securities voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee.
<PAGE>
83
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. No Delay of Rights by Meeting.
-----------------------------
Nothing contained in this Article Nine shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Debt Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, etc., Only on Certain Terms.
----------------------------------------------------
Subject to the provisions of Section 10.02, nothing contained in this
Indenture or in any of the Debt Securities or Coupons shall prevent any
consolidation or merger of the Company with or into any other corporation or
corporations (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale or conveyance of all or
substantially all the property of the Company to any other corporation (whether
or not affiliated with the Company) authorized to acquire and operate the same;
provided, however, that the Company hereby covenants and agrees, that upon any
- -------- -------
such consolidation, merger, sale or conveyance of or by the Company, other than
consolidation or merger in which the Company is the continuing corporation, the
due and punctual payment of the principal of and premium, if any, and interest
on all of the Debt Securities and Coupons, according to their tenor, and the
due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company, shall be
expressly assumed, by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee by the corporation (if other
than the Company) formed by such consolidation, or into which the Company
shall have been merged, or by the corporation which shall have acquired such
property.
Section 10.02 Successor Corporation to be Substituted; Securities
---------------------------------------------------
to be Secured in Certain Events.
-------------------------------
In the case of any consolidation, merger, sale or conveyance of or
by the Company referred to in Section 10.01 and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the
<PAGE>
84
principal of and premium, if any, and interest on all of the Debt Securities
and Coupons and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Company, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part, and in
the event of any such sale or conveyance, the Company (which term shall for
this purpose mean the corporation named as the "Company" in the first
paragraph of this Indenture or any successor corporation which shall
theretofore become such in the manner described in Section 10.01) shall be
discharged from all obligations and covenants under this Indenture and the
Debt Securities and Coupons and may be dissolved and liquidated. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of Sun Company, Inc. any or all of the Debt Securities and
Coupons issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate
and shall deliver any Debt Securities and Coupons which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debt Securities and Coupons which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Debt Securities and Coupons of any series so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities and Coupons of such series theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Debt Securities and Coupons had been issued at the date of the
execution hereof.
In case of any consolidation or merger of the Company with or into any
other corporation, or upon any sale or conveyance of all or substantially all
the property of the Company to any other corporation, any of the property of
the Company or any Subsidiary would thereupon become subject to any mortgage,
lien or pledge which would not otherwise be permitted by this Indenture
without making effective provision for securing the Outstanding Debt
Securities of any series, the Company prior to or simultaneously with such
consolidation, merger, sale or conveyance, will secure such series of
Outstanding Debt Securities equally and ratably with any other obligations of
the Company or any Subsidiary then entitled thereto, by a direct lien on such
property prior to all liens other than any theretofore existing thereon.
In case of any such consolidation, merger, sale or conveyance, such changes
in phraseology and form (but not in substance) may be made in the Debt
Securities and Coupons thereafter to be issued as may be appropriate.
Section 10.03 Opinion of Counsel to be Given Trustee.
--------------------------------------
The Trustee, subject to Section 6.01 and 6.03, may receive an Opinion
of Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance and any such assumption complies with the provisions of this Article.
<PAGE>
85
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Debt Securities and the Coupons, if any,
appertaining thereto (and if such covenants are to be for the benefit of
less than all series, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any right
or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such
Events of Default are expressly being included solely to be applicable to
such series); or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Debt
Securities of any series in bearer form, registrable or not registrable,
and with or without Coupons, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations
or to permit the issuance of Debt Securities of any series in
uncertificated form, provided that any such action shall not adversely
--------
affect the interests of the Holders of Debt Securities of any series or any
related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Outstanding Debt Security or Coupon of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision and as to which such supplemental indenture
would apply; or
<PAGE>
86
(6) to secure the Debt Securities; or
(7) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four or Fifteen,
provided that any such action shall not adversely affect the interests of
--------
the Holders of Debt Securities of such series or any other series of Debt
Securities or any related Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities and Coupons, if
any, of any series as permitted by Sections 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of Debt
Securities and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(10) to make provision with respect to the conversion rights of
Holders of Debt Securities of any series pursuant to the requirements of
Article Sixteen, unless otherwise provided pursuant to Section 3.01; or
(11) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided such other provisions
--------
shall not adversely affect the interests of the Holders of Outstanding Debt
Securities or Coupons, if any, of any series created prior to the execution
of such supplemental indenture in any material respect.
Section 11.02. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities; provided, however, that no such supplemental
-------- -------
<PAGE>
87
indenture shall, without the consent of the Holder of each Outstanding Debt
Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or installment of
interest, if any, on, any Debt Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any
payment to be made with respect to any Coupon, or change the Currency or
Currencies in which the principal of (and premium, if any) or interest on
such Debt Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.02, or adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone the date
fixed for, any payment under any sinking fund or analogous provisions for
any Debt Security, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or limit the
obligation of the Company to maintain a paying agency outside the United
States for payment on Bearer Securities as provided in Section 12.03 or
adversely affect the right to convert any Debt Security into shares of
Equity Securities of the Company as may be provided pursuant to Section
3.01; or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture;
or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 12.09, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security of each
series affected thereby; provided, however, that this clause shall not be
-------- -------
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 12.09, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 11.01(7).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed
<PAGE>
88
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities and Coupons, if any, of any other
series.
Section 11.03. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which adversely affects
the Trustee's own rights, duties or immunities under this Indenture or otherwise
in a material way.
Section 11.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 11.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 11.06. Reference in Debt Securities to Supplemental
--------------------------------------------
Indentures.
- ----------
Debt Securities and Coupons, if any, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities and Coupons
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any
<PAGE>
89
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Debt
Securities and Coupons of such series.
Section 11.07. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the appropriate
Trustee of any supplemental indenture pursuant to Section 11.02, the Company
shall transmit, in the manner and to the extent provided in Section 1.05, to all
Holders of any series of the Debt Securities affected thereby, a notice setting
forth in general terms the substance of such supplemental indenture.
ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Debt Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.06, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.01, the interest, if any, due in respect of any temporary Global
Note or permanent Global Note, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Debt Security,
shall be payable only upon presentation of such Debt Security to the Trustee for
notation thereon of the payment of such interest.
Section 12.02. Officer's Certificate as to Default.
-----------------------------------
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company (which on the
date hereof is the calendar year) ending after the date hereof, a certificate of
the principal executive officer, principal financial officer or principal
accounting officer of the Company stating whether or not to the best knowledge
of the signer thereof the Company is in default in the performance and
observance of any of the terms, provisions
<PAGE>
90
and conditions of this Article and, if the Company shall be in default,
specifying all such defaults and the nature thereof of which such signer may
have knowledge.
Section 12.03. Maintenance of Office or Agency.
-------------------------------
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange, where Debt Securities that are
convertible may be surrendered for conversion, if applicable, and where notices
and demands to or upon the Company in respect of the Debt Securities of that
series and this Indenture may be served. If Debt Securities of a series are
issuable as Bearer Securities, the Company will maintain (A) in the Borough of
Manhattan, The City and State of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange, where Debt Securities of that series which are
convertible may be surrendered for conversion, where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served and where Bearer Securities of that series and related
Coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Debt
Securities of that series and related Coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Securities
of that series, if so provided pursuant to Section 3.01); provided, however,
-------- -------
that if the Debt Securities of that series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Debt Securities of that series in London, Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Debt Securities of that series are listed on such exchange, and (C) subject to
any laws or regulations applicable thereto, in a Place of Payment for that
series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Debt Securities of that series may be surrendered for
exchange, where Debt Securities of that series that are convertible may be
surrendered for conversion, and where notices and demands to or upon the
Company in respect of the Debt Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the
<PAGE>
91
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee (in the case
of Registered Securities) and at the place specified for the purpose pursuant to
Section 3.01 (in the case of Bearer Securities), and the Company hereby appoints
the Trustee as its agent to receive all presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
-------- -------
the Debt Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security (including
any additional amounts payable on Securities of such series, if so provided
pursuant to Section 3.01) shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City and State of New York if (but only
if) payment in Dollars of the full amount of such principal, premium, interest
or additional amounts, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 12.04. Money for Debt Securities; Payments To Be Held in
-------------------------------------------------
Trust.
- -----
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities and Coupons, if any, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Debt Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of
<PAGE>
92
as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities and Coupons, it will, by or on each due date
(but if payment is to be made outside the United States, at least one Business
Day before each due date) of the principal (and premium, if any) or interest on
any Debt Securities of such series, deposit with any such Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled
thereto, and (unless any such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series) in the making of any
payment of principal of (and premium, if any) or interest on the Debt
Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Debt Security of any series and remaining unclaimed for
two years
<PAGE>
93
after such principal (and premium, if any) or interest has become due and
payable shall, unless otherwise required by applicable law, be paid to the
Company upon Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Debt Security or Coupon shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
-------- -------
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be transmitted in the manner and to the extent
provided by Section 1.05, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 12.05. [Intentionally Omitted]
Section 12.06. Purchase of Debt Securities by Company.
--------------------------------------
If the Debt Securities of a series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not purchase any Debt Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
Section 12.07. Limitation on Liens.
-------------------
Nothing in this Indenture or in the Debt Securities or Coupons, if
any, shall in any way restrict or prevent the Company or any Subsidiary from
incurring any indebtedness; provided that the Company covenants and agrees
that neither it nor any Restricted Domestic Subsidiary will issue, assume or
guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (hereinafter in this Article Twelve called
"Debt") secured by mortgage, lien, pledge or other encumbrance upon any
Restricted Property without effectively providing that the Debt Securities of
all series (excluding any series of Debt Securities with respect to which the
property securing such Debt is not Restricted Property, but including, if the
Company so determines, any other indebtedness or obligation then existing and
any other indebtedness or obligation, thereafter created, ranking equally with
the Debt Securities of all series) shall be secured equally and ratably with
(or prior to) such Debt so long as such Debt shall be so secured, except that
the foregoing provisions shall not apply to:
<PAGE>
94
(a) mortgages, liens, pledges or other encumbrances (hereinafter in
this Article Twelve called "Mortgages") on property to secure all or part
of the cost of exploration, drilling or development thereof or all or part
of the cost of altering or repairing equipment used in connection
therewith or (in case of property which is, in the opinion of the Board of
Directors, substantially unimproved for the use intended by the Company)
all or part of the cost of improvement thereof, or to secure Debt incurred
to provide funds for any such purpose;
(b) Mortgages which secure only indebtedness owing by a Subsidiary to
the Company, to one or more Subsidiaries or to the Company and one or more
Subsidiaries;
(c) Mortgages on the property of any corporation existing at the time
such corporation becomes a Subsidiary;
(d) Mortgages on any property to secure Debt or other indebtedness
incurred in connection with the construction, installation or financing of
pollution control or abatement facilities, other forms of industrial
revenue bond financing or Debt issued or guaranteed by the United States,
any State or any department, agency or instrumentality of either; or
(e) In the case of any series of Debt Securities, any extension,
renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Mortgage existing at the date
Debt Securities of such series are first issued, or any Mortgage referred
to in the foregoing clauses (a) through (d) or of any Debt secured
thereby, provided that the principal amount of Debt secured thereby shall
not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement Mortgage shall be limited to all or part of substantially the
same property which secured the Mortgage extended, renewed or replaced
(plus improvements on such property).
Notwithstanding the foregoing provisions of this Section 12.07, the
Company and any one or more Restricted Domestic Subsidiaries may issue, assume
or guarantee Debt secured by Mortgages which would otherwise be subject to the
foregoing restrictions in an aggregate principal amount which, together with the
aggregate outstanding principal amount of all other Debt of the Company and its
Restricted Domestic Subsidiaries which would otherwise be subject to the
foregoing restrictions (not including Debt permitted to the secured under
clauses (a) through (e)) and the aggregate Value of the Sale and Lease-Back
Transactions in existence at such time (not including Sale and Lease-Back
Transactions described in Section 12.08(a) or as to which the Company has
complied with Section 12.08(b)) does not at the time of issuance, assumption, or
guarantee thereof exceed 5%
<PAGE>
95
of the Stockholders' Equity in the Company and its consolidated subsidiary
companies as shown in the audited consolidated balance sheet contained in the
latest annual report to shareholders of the Company. For this purpose
"Stockholders' Equity" shall mean the aggregate of (however designated) capital,
capital stock, capital surplus, capital in excess of par value of stock, earned
surplus and net income retained for use in the business, after deducting the
costs of the shares of stock of the Company held in its treasury.
The following types of transactions, among others, shall not be deemed
to create Debt secured by Mortgages:
(1) The sale or other transfer of crude oil, natural gas or other
petroleum hydrocarbons in place for a period of time until, or in an amount
such that, the transferee will realize therefrom a specified amount
(however determined) of money or such crude oil, natural gas or other
petroleum hydrocarbons, or the sale or other transfer of any other interest
in property of the character commonly referred to as a production payment
or as an overriding royalty, and
(2) Mortgages required by any contract or statute in order to permit
the Company or a Subsidiary to perform any contract or subcontract made by
it with or at the request of the United States, and State or any
department, agency or instrumentality of either, or to secure partial,
progress, advance or any other payments to the Company or any Subsidiary by
the United States, any State or any department, agency or instrumentality
of either pursuant to the provisions of any contract or statute.
Section 12.08. Limitation on Sale and Lease-Back Transactions.
----------------------------------------------
The Company covenants and agrees that neither it nor any Restricted
Domestic Subsidiary will enter into any arrangement with any Person, or to which
any Person is a party, providing for the leasing to the Company or a Restricted
Domestic Subsidiary for a period of more than three years of any Restricted
Property which has been or is to be sold or transferred by the Company or such
Restricted Domestic Subsidiary to such Person or to any other Person to which
funds have been or are to be advanced by such Person on the security of the
leased property (in this Article Twelve called "Sale and Lease-Back
Transaction") unless either:
(a) the Company or such Restricted Domestic Subsidiary would be
entitled, pursuant to the provisions of Section 12.07, to incur Debt in a
principal amount equal to or exceeding the Value of such Sale and Lease-
Back Transaction, secured by Mortgage on the property to be leased,
without
<PAGE>
96
equally and ratably securing all series of Debt Securities with respect
to which such property is Restricted Property, or
(b) the Company (and in any such case the Company covenants and
agrees that it will do so) during or immediately after the expiration of
four months after the effective date of such Sale and Lease-Back
Transaction (whether made by the Company or a Restricted Domestic
Subsidiary) applies to the voluntary retirement of Funded Debt of the
Company (including Debt Securities) an amount equal to the Value of such
Sale and Lease-Back Transaction, less the principal amount of Debt
Securities delivered, within four months after the effective date of such
arrangement, to the Trustee for retirement and cancellation and the
principal amount of other Funded Debt voluntarily retired by the Company
within such four month period, excluding retirements of Debt Securities
and other Funded Debt as a result of conversions or pursuant to mandatory
sinking fund or mandatory prepayment provisions or by payment at
maturity.
For purposes of Section 12.07 and this Section 12.08, the term "Value"
shall mean, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of (1) the net proceeds of the
sale or transfer of the property leased pursuant to such Sale and Lease-Back
Transaction or (2) the fair value in the opinion of the Board of Directors of
such property at the time of entering into such Sale and Lease-Back Transaction,
in either case divided first by the number of full years of the term of the
lease and then multiplied by the number of full years of such term remaining at
the time of determination, without regard to any renewal or extension options
contained in the lease.
Section 12.09. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.01, 10.02, 12.07 and 12.08
(and, if so specified pursuant to Section 3.01, any other covenant not set forth
herein and specified pursuant to Section 3.01 to be applicable to the Securities
of any series, except as otherwise provided pursuant to Section 3.01) with
respect to the Debt Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Debt Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent expressly so waived, and,
until
<PAGE>
97
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article.
------------------------
Debt Securities of any series which are redeemable before their
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Debt Securities of any series)
in accordance with this Article.
Section 13.02. Election to Redeem; Notice to Trustee.
-------------------------------------
In case of any redemption at the election of the Company, the
Company shall, at least 60 days before the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Debt
Securities of such series to be redeemed. In the case of any redemption of
Debt Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restrictions.
Section 13.03. Selection by Trustee of Debt Securities to Be
---------------------------------------------
Redeemed.
- --------
Except in the case of a redemption in whole of the Bearer Securities
or the Registered Securities of such series, if less than all the Debt
Securities of any series are to be redeemed at the election of the Company, the
particular Debt Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding Debt
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Debt Securities of such series in a
denomination larger than the minimum authorized
<PAGE>
98
denomination for Debt Securities of such series pursuant to Section 3.02 in the
Currency in which the Debt Securities of such series are denominated. The
portions of the principal amount of Debt Securities so selected for partial
redemption shall be equal to the minimum authorized denominations for Debt
Securities of such series pursuant to Section 3.02 in the Currency in which the
Debt Securities of such series are denominated or any integral multiple thereof,
except as otherwise set forth in the applicable form of Debt Securities. In any
case when more than one Registered Security of such series is registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Registered Security of
such series.
If any Debt Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Debt Security so selected, the converted portion of such Debt Security shall
be deemed (so far as may be) to be the portion selected for redemption. Debt
Securities which have been converted during a selection of Debt Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
Section 13.04. Notice of Redemption.
--------------------
Notice of redemption shall be given by the Company, or at the
Company's request, by the Trustee in the name and at the expense of the Company,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.05. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
All notices of redemption shall state:
<PAGE>
99
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by the
Company pursuant to provisions contained in this Indenture or the terms of
the Debt Securities of such series or a supplemental indenture establishing
such series, if such be the case, together with a brief statement of the
facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after said date,
(6) in the case of Debt Securities of any series that is convertible,
the conversion price, the date on which the right to convert the principal
of the Debt Securities of such series to be redeemed will terminate and the
place or places where such Debt Securities may be surrendered for
conversion,
(7) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or Coupons
will be deducted from the Redemption Price,
(8) the Place or Places of Payment where such Debt Securities are to
be surrendered for payment of the Redemption Price,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 3.05(b) or
otherwise, the last date on which such exchanges may be made, and
(10) that the redemption is for a sinking fund, if such is the case.
<PAGE>
100
Section 13.05. Deposit of Redemption Price.
---------------------------
On or prior to (but, if payment is to be made outside the United
States, at least One Business Day prior to) the Redemption Date for any Debt
Securities, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 12.04) an amount of money in the Currency or
Currencies in which such Debt Securities are denominated (except as provided
pursuant to Section 3.01) sufficient to pay the Redemption Price of such Debt
Securities or any portions thereof which are to be redeemed on that date.
Section 13.06. Debt Securities Payable on Redemption Date.
------------------------------------------
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Section 3.01
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest and the Coupons for such interest appertaining to any Bearer
Securities, so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Debt Security for redemption in accordance
with said notice, such Debt Security shall be paid by the Company at the
Redemption Price; provided, however, that installments of interest on Bearer
-------- -------
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 12.03) and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of Coupons
for such interest; and provided, further, that, unless otherwise specified as
-------- -------
contemplated by Section 3.01, installments of interest on Registered Securities
which have a Stated Maturity on or prior to the Redemption Date for such Debt
Securities shall be payable according to the terms of such Debt Securities and
the provisions of Section 3.07.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the Holder of such Coupon shall surrender to any Paying Agent outside the United
States any such missing Coupon in respect of which a
<PAGE>
101
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted. The surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee, if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless.
Section 13.07. Debt Securities Redeemed in Part.
--------------------------------
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.01 (in the case of Registered
Securities) and at an office of the Trustee or such other office or agency of
the Company outside the United States as is specified pursuant to Section 3.01
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Debt Security without service charge, a new Debt
Security or Debt Securities of the same series, of like tenor and form, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt Securities as
aforesaid, may make a notation on such Debt Security of the payment of the
redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 3.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms
<PAGE>
102
of Debt Securities of any series, the amount of any cash sinking fund payment
may be subject to reduction as provided in Section 14.02. Each sinking fund
payment shall be applied to the redemption of Debt Securities of any series as
provided for by the terms of Debt Securities of such series.
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with
----------------------------------------------------
Debt Securities.
- ---------------
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, deliver to the Trustee Debt Securities of such series (together with the
unmatured Coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired by the Company, except Debt Securities of such series which
have been redeemed through the application of mandatory sinking fund payments
pursuant to the terms of the Debt Securities of such series, accompanied by a
Company Order instructing the Trustee to credit such obligations and stating
that the Debt Securities of such series were originally issued by the Company by
way of bona fide sale or other negotiation for value, provided that such Debt
--------
Securities shall not have been previously so credited. Such Debt Securities
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
Section 14.03. Redemption of Debt Securities for Sinking Fund.
----------------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.01) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Debt Securities of such series pursuant to Section
14.02 and shall also deliver to the Trustee any Debt Securities to be so
delivered. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Debt Securities of such series
subject to a mandatory sinking fund payment without the right to deliver or
credit Debt Securities as provided in Section 14.02 and without
<PAGE>
103
the right to make any optional sinking fund payment with respect to such series
at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to
the next sinking fund payment received by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 12.04) for such series and, together with such payment (or such amount
so segregated) shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys with respect to the Debt Securities of
any particular series held by the Trustee (or if the Company is acting as its
own Paying Agent, segregated and held in trust as provided in Section 12.04) on
the last sinking fund payment date with respect to Debt Securities of such
series and not held for the payment or redemption of particular Debt Securities
of such series shall be applied by the Trustee (or by the Company if the Company
is acting as its own Paying Agent), together with other moneys, if necessary, to
be deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Debt Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Debt Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 13.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.04. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 13.06.
On or before (but, if payment is to be made outside the United States,
at least one Business Day prior to) each sinking fund payment date, the Company
shall pay to the Trustee (or, if the Company is acting as its own Paying Agent,
the Company shall segregate and hold in trust as provided in Section 12.04) in
cash a sum, in the Currency or Currencies in which Debt Securities of such
series are denominated (except as provided pursuant to Sections 3.01 or 3.10),
equal to the principal and any interest accrued to the Redemption Date for Debt
Securities or portions
<PAGE>
104
thereof to be redeemed on such sinking fund payment date pursuant to this
Section.
Neither the Trustee nor the Company shall redeem any Debt Securities
of a series with sinking fund moneys or mail any notice of redemption of Debt
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any Debt
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the Debt
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Debt Securities if cash sufficient for that purpose shall be deposited with
the Trustee (or segregated by the Company) for that purpose in accordance with
the terms of this Article. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Debt Securities and Coupons, if any, of such series; provided,
--------
however, that in case such default or Event of Default shall have been cured or
- -------
waived as provided herein, such moneys shall thereafter be applied on or prior
to the next sinking fund payment date for the Debt Securities of such series on
which such moneys may be applied pursuant to the provisions of this Section.
ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. Applicability of Article.
------------------------
If, pursuant to Section 3.01, provision is made for the defeasance of
Debt Securities of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as
provided pursuant to Section 3.01) then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 3.01 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or Currencies or for Bearer Securities may be
specified pursuant to Section 3.01.
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government
----------------------------------------------------
Obligations.
- -----------
At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its
<PAGE>
105
obligations with respect to Debt Securities of any series ("legal defeasance
option") or (b) the Company shall cease to be under any obligation to comply
with any term, provision or condition set forth in Sections 10.01, 10.02,
12.07 and 12.08 with respect to Debt Securities of any series (and, if so
specified pursuant to Section 3.01, any other obligation of the Company or
restrictive covenant added for the benefit of such series pursuant to Section
3.01) ("covenant defeasance option") at any time after the applicable
conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Debt Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient, in
the opinion (with respect to (i) and (ii)) of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of
principal (including any mandatory sinking fund payments) of and premium,
if any, and interest on, the Outstanding Debt Securities of such series on
the dates such installments of interest, principal, and premium are due;
(2) such deposit shall not cause the Trustee with respect to the Debt
Securities of that series to have a conflicting interest as defined in
the Trust Indenture Act with respect to the Debt Securities of any
series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) if the Debt Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel or a letter or other document from such
exchange to the effect that the Company's exercise of its option under this
Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit) which, with
notice or lapse of time or both, would become an Event of Default with
respect to the Debt Securities of such series shall have occurred and be
continuing on the date of such deposit and, with respect to
<PAGE>
106
the legal defeasance option only, no Event of Default under Section 5.01(5)
or Section 5.01(6) or event which with the giving of notice or lapse of
time, or both, would become an Event of Default under Section 5.01(5) or
Section 5.01(6) shall have occurred and be continuing on the 91st day after
such date; and
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel or a ruling from the Internal Revenue Service to the effect that
the Holders of the Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.01(5) or Section 5.01(6) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.01(5) or Section 5.01(6) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and interest on such Debt Securities when
such payments are due, (B) the Company's obligations with respect to the Debt
Securities of such series under Sections 3.04, 3.05, 3.06, 12.03 and 15.03 and
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government obligation held by such custodian for the
account of the holder of a depository receipt;
<PAGE>
107
provided that (except as required by law) such custodian is not authorized to
- --------
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of the
U.S. Government Obligation evidenced by such depository receipt.
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be
------------------------------------------------------
Held in Trust.
- -------------
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.02 in respect of Debt Securities of a series shall be
held in trust and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Debt Securities, of all sums due
and to become due thereon for principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
Section 15.04. Repayment to Company.
--------------------
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Debt Securities of any series for which
money or U.S. Government Obligations have been deposited pursuant to Section
15.02.
The provisions of the last paragraph of Section 12.04 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 15.02.
ARTICLE SIXTEEN
CONVERSION
Section 16.01. Applicability; Conversion Privilege.
-----------------------------------
Except as otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, the provisions of this Article Sixteen shall be
applicable to any Debt Securities that are convertible into Equity Securities.
Each reference in this Article to a "Debt Security" or "Debt Securities" refers
to the Debt Securities of a particular series that is convertible into Equity
Securities, and references to a "Coupon" or "Coupons"
<PAGE>
108
refer to the Coupons appertaining to the Debt Securities of such series.
Without limiting the generality of the immediately preceding sentence, if two or
more series of Debt Securities with conversion privileges are outstanding at any
time, (i) the provisions of this Article shall be applied separately to each
such series, and (ii) references to the Trustee refer to the Trustee for the
Debt Securities of such series. If so provided pursuant to Section 3.01 with
respect to the Debt Securities of any series, the Holder of a Debt Security of
such series shall have the right, at such Holder's option, to convert, in
accordance with the terms of such series of Debt Securities and this Article
Sixteen, all or any part (if the portion to be converted and the remaining
portion of such Debt Security are in authorized denominations for that series of
Debt Securities) of such Debt Security into shares of Equity Securities, at any
time during the period specified in the terms of the Debt Securities of that
series pursuant to Section 3.01, at the Conversion Price in effect on the date
of conversion, or, as to any Debt Securities called for redemption, at any time
prior to the time and date fixed for such redemption (unless the Company shall
default in the payment of the Redemption Price, in which case such right shall
not terminate at such time and date).
Section 16.02. Conversion Procedure; Conversion Price; Fractional
--------------------------------------------------
Shares.
- ------
(a) Except as otherwise specified as contemplated by Section 3.01 for
Debt Securities of any series, each Debt Security of such series to which this
Article is applicable shall be convertible at the office of the Conversion
Agent, and at such other place or places, if any, specified pursuant to Section
3.01 with respect to the Debt Securities of such series, into fully paid and
nonassessable shares (calculated to the nearest 1/100th of a share) of Equity
Securities. The Debt Securities will be converted into shares of Equity
Securities at the Conversion Price therefor. No payment or adjustment shall be
made in respect of dividends on the Equity Securities or accrued interest on a
converted Debt Security except as described in Section 16.09 and Section
16.02(c). The Company may, but shall not be required, in connection with any
conversion of Debt Securities, to issue a fraction of a share of any Equity
Security and, if the Company shall determine not to issue any such fraction, the
Company shall, subject to Section 16.03(4), make a cash payment (calculated to
the nearest cent) equal to such fraction multiplied by the Closing Price of such
Equity Security on the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Debt Security shall be entitled to convert
the same into Equity Securities, such Holder shall surrender such Debt Security
duly endorsed to the Company or in blank, or, in the case of Bearer Securities,
together with all unmatured Coupons and any matured Coupons in default attached
<PAGE>
109
thereto, at the office of the Conversion Agent or at such other place or places,
if any, specified pursuant to Section 3.01 (in the case of Registered
Securities) and at an office of the Conversion Agent or at such other place or
places, if any, outside of the United States as is specified pursuant to Section
3.01 (in the case of Bearer Securities), and shall give written notice to the
Company at said office or place that he elects to convert the same and shall
state in writing therein the principal amount of Debt Securities to be converted
and the name or names (with addresses) in which he wishes the certificate or
certificates for Equity Securities to be issued.
If more than one Debt Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares of Equity Securities
which shall be deliverable upon conversion shall be computed on the basis of the
aggregate principal amount of the Debt Securities (or specified portions thereof
to the extent permitted thereby) so surrendered. Subject to the next succeeding
sentence, the Company will, as soon as practicable after the surrender of a
Debt Security for conversion, issue and deliver at said office or place to the
Holder of a Debt Security or to his nominee or nominees, certificates for the
number of full shares of Equity Securities to which he shall be entitled as
aforesaid, together, subject to the last sentence of paragraph (a) above, with
cash in lieu of any fraction of a share to which he would otherwise be
entitled. The Company shall not be required to deliver certificates for shares
of Equity Securities while the stock transfer books for such stock or the
Security Register are duly closed for any purpose, but certificates for shares
of Equity Securities shall be issued and delivered as soon as practicable
after the opening of such books or Security Register.
(c) If, at the time of surrender pursuant to Section 16.02(a), the
Holder of a Bearer security is unable to produce all unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such conversion may be effected if the
Bearer Securities to be surrendered for conversion are accompanied by payment in
funds acceptable to the Company in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons
may be waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to any Paying Agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that except as otherwise provided in
-------- -------
Section 12.03, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside the United States.
<PAGE>
110
(d) A Debt Security shall be deemed to have been converted as of the
close of business on the date of the surrender of such Debt Security for
conversion as provided above, and the Person or Persons entitled to receive the
Equity Securities issuable upon such conversion shall be treated for all
purposes as the record Holder or Holders of such Equity Securities as of the
close of business on such date.
(e) In case any Debt Security shall be surrendered for partial
conversion, the Company shall execute and the Trustee shall authenticate and
deliver to or upon the written order of the Holder of the Debt Securities so
surrendered, without charge to such Holder (subject to the provisions of Section
16.08), a new Debt Security or Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Debt Security, together, in the case of Bearer Securities, with any unmatured
Coupons and matured Coupons in default attached thereto.
Section 16.03. Adjustment of Conversion Price for Equity Securities.
----------------------------------------------------
The Conversion Price with respect to any Debt Security which is
convertible into Equity Securities shall be adjusted from time to time as
follows:
(1) In case the Company shall, at any time or from time to time while
any of such Debt Securities are outstanding, (i) pay a dividend in shares
of an Equity Security to holders of such class of Equity Security, (ii)
combine its outstanding shares of an Equity Security into a smaller number
of shares of that Equity Security, (iii) subdivide its outstanding shares
of an Equity Security into a greater number of shares of that Equity
Security or (iv) make a distribution in shares of an Equity Security to
holders of such Equity Security, then the Conversion Price in effect
immediately before such action shall be adjusted so that the Holders of
such Debt Securities, upon conversion thereof into Equity Securities
immediately following such event, shall be entitled to receive the kind and
amount of shares of capital stock of the Company which they would have
owned or been entitled to receive upon or by reason of such event if such
Debt Securities had been converted immediately before the record date (or,
if no record date, the effective date) for such event. An adjustment made
pursuant to this Section 16.03(1) shall become effective retroactively
immediately after the record date in the case of a dividend or distribution
and shall become effective retroactively immediately after the effective
date in the case of a subdivision or combination. For the purposes of this
Section 16.03(1), each Holder of Debt Securities shall be deemed to have
failed to exercise any right to elect the
<PAGE>
111
kind or amount of securities receivable upon the payment of any such
dividend, subdivision, combination or distribution (provided that if the
kind or amount of securities receivable upon such dividend, subdivision,
combination or distribution is not the same for each nonelecting share,
then the kind and amount of securities or other property receivable upon
such dividend, subdivision, combination or distribution for each
nonelecting share shall be deemed to be the kind and amount so receivable
per share by a plurality of the nonelecting shares).
(2) In case the Company shall, at any time or from time to time while
any of such Debt Securities are Outstanding, issue rights or warrants to
all or substantially all holders of shares of a class of its Equity
Securities into which Debt Securities are convertible entitling them (for
a period expiring within 45 days after the record date for such issuance)
to subscribe for or purchase shares of such Equity Security (or
securities convertible into shares of such Equity Security) at a price
per share less than the Current Market Price of the Equity Security at
such record date (treating the price per share of the securities
convertible into such Equity Security as equal to (x) the sum of (i) the
price for a unit of the security convertible into such Equity Security
and (ii) any additional consideration initially payable upon the
conversion of such security into such Equity Security divided by (y) the
number of shares of such Equity Security initially underlying such
convertible security), the Conversion Price with respect to such Debt
Securities shall be adjusted, so that it shall equal the price determined
by dividing the Conversion Price in effect immediately prior to the date
of issuance of such rights or warrants by a fraction, the numerator of
which shall be the number of shares of such Equity Security outstanding
on the date of issuance of such rights or warrants plus the number of
additional shares of such Equity Security offered for subscription or
purchase (or into which the convertible securities so offered are
initially convertible), and the denominator of which shall be the number
of shares of such Equity Security outstanding on the date of issuance of
such rights or warrants plus the number of shares or securities which the
aggregate offering price of the total number of shares or securities so
offered for subscription or purchase (or the aggregate purchase price of
the convertible securities so offered plus the aggregate amount of any
additional consideration initially payable upon conversion of such
securities into such Equity Security) would purchase at such Current
Market Price of such Equity Security. Such adjustment shall become
effective retroactively immediately after the record date for the
determination of stockholders entitled to receive such rights or
warrants.
<PAGE>
112
(3) In case the Company shall, at any time or from time to time while
any of such Debt Securities are outstanding, distribute to all or
substantially all holders of shares of a class of its Equity Securities
into which Debt Securities are convertible (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation and such Equity Security is not
changed or exchanged) cash, evidences of its indebtedness, securities or
assets (excluding (i) regular periodic cash dividends in amounts, if any,
determined from time to time by the Board of Directors (to the extent
paid from current or retained earnings of the Company) or (ii) dividends
payable in shares of such Equity Security for which adjustment is made
under Section 16.03(1)) or rights or warrants to subscribe for or
purchase securities of the Company (excluding those referred to in
Section 16.03(2)), then in each such case the Conversion Price with
respect to such Debt Securities shall be adjusted so that it shall equal
the price determined by dividing the Conversion Price in effect
immediately prior to the date of such distribution by a fraction, the
numerator of which shall be the Current Market Price of such Equity
Security on the record date referred to below, and the denominator of
which shall be such Current Market Price of such Equity Security less the
then fair market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the portion of the
cash or assets or evidences of indebtedness or securities so distributed
or of such subscription rights or warrants applicable to one share of
such Equity Security (provided that such denominator shall never be less
than 1.0); provided, however, that no adjustment shall be made with
-------- -------
respect to any distribution of rights to purchase securities of the
Company if a Holder of Debt Securities would otherwise be entitled to
receive such rights upon conversion at any time of such Debt Securities
into such Equity Security unless such rights are subsequently redeemed by
the Company, in which case such redemption shall be treated for purposes
of this section as a dividend on such Equity Security. Such adjustment
shall become effective retroactively immediately after the record date
for the determination of stockholders entitled to receive such
distribution; and in the event that such distribution is not so made, the
Conversion Price shall again be adjusted to the Conversion Price which
would then be in effect if such record date had not been fixed.
(4) The Company shall be entitled to make such additional adjustments
in the Conversion Price, in addition to those required by subsections
16.03(1), 16.03(2) and 16.03(3), as shall be necessary in order that any
dividend or distribution of an Equity Security, any subdivision,
reclassification or combination of shares of an Equity
<PAGE>
113
Security or any issuance of rights or warrants referred to above shall not
be taxable to the holders of a class of an Equity Security for United
States Federal income tax purposes.
(5) In any case in which this Section 16.03 shall require that any
adjustment be made effective as of or retroactively immediately following a
record date, the Company may elect to defer (but only for five (5) Trading
Days following the filing of the statement referred to in Section 16.05)
issuing to the Holder of any Debt Securities converted after such record
date the shares of the Equity Security and other capital stock of the
Company issuable upon such conversion over and above the shares of Equity
Security and other capital stock of the Company issuable upon such
conversion on the basis of the Conversion Price prior to adjustment;
provided, however, that the Company shall deliver to such Holder a due bill
-------- -------
or other appropriate instrument evidencing such Holder's right to receive
such additional shares upon the occurrence of the event requiring such
adjustment.
(6) All calculations under this Section 16.03 shall be made to the
nearest cent or one-hundredth of a share or security, with one-half cent
and 0.005 of a share, respectively, being rounded upward. Notwithstanding
any other provision of this Section 16.03, the Company shall not be
required to make any adjustment of the Conversion Price unless such
adjustment would require an increase or decrease of at least 1% of such
price. Any lesser adjustment shall be carried forward and shall be made at
the time of and together with the next subsequent adjustment which,
together with any adjustment or adjustments so carried forward, shall
amount to an increase or decrease of at least 1% in such price. Any
adjustments under this Section 16.03 shall be made successively whenever an
event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an adjustment made
pursuant to this Section 16.03, the Holder of any Debt Security thereafter
surrendered for conversion shall become entitled to receive any shares of
stock of the Company other than shares of an Equity Security into which the
Debt Securities originally were convertible, the Conversion Price of such
other shares so receivable upon conversion of any such Debt Security shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to an
Equity Security contained in subparagraphs (1) through (6) of this Section
16.03, and the provision of Sections 16.01, 16.02 and 16.04 through 16.09
with respect to the Equity Securities shall apply on like or similar
<PAGE>
114
terms to any such other shares and the determination of the Board of
Directors as to any such adjustment shall be conclusive.
(8) No adjustment shall be made pursuant to this Section: (i) if the
effect thereof would be to reduce the Conversion Price below the par value
(if any) of the Common Stock or the stated value of the Preference Stock or
(ii) subject to 16.03(5) hereof, with respect to any Debt Security that is
converted prior to the time such adjustment otherwise would be made.
Section 16.04. Consolidation or Merger of the Company.
--------------------------------------
In case of either (a) any consolidation or merger to which the Company
is a party, other than a merger or consolidation in which the Company is the
surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value) in, outstanding shares
of an Equity Security or (b) any sale or conveyance of all or substantially all
of the property and assets of the Company to another Person, then each Debt
Security then outstanding shall be convertible from and after such merger,
consolidation, sale or conveyance of property and assets into the kind and
amount of shares of stock or other securities and property receivable upon such
consolidation, merger, sale or conveyance by a holder of the number of shares of
Equity Securities into which such Debt Securities would have been converted
immediately prior to such consolidation, merger, sale or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article Sixteen (and assuming such holder of
the Equity Security failed to exercise his rights of election, if any, as to the
kind or amount of securities, cash or other property receivable upon such
consolidation, merger, sale or conveyance (provided that, if the kind or amount
of securities, cash or other property receivable upon such consolidation,
merger, sale or conveyance is not the same for each nonelecting share, then the
kind and amount of securities, cash or other property (including cash)
receivable upon such consolidation, merger, sale or conveyance for each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares or securities)). The Company
shall not enter into any of the transactions referred to in clause (a) or (b) of
the preceding sentence unless effective provision shall be made so as to give
effect to the provisions set forth in this Section 16.04. The provisions of this
Section 16.04 shall apply similarly to successive consolidations, mergers, sales
or conveyances.
<PAGE>
115
Section 16.05. Notice of Adjustment.
--------------------
Whenever an adjustment in the Conversion Price with respect to a
series of Debt Securities is required:
(1) the Company shall forthwith place on file with the Trustee and
any Conversion Agent for such Debt Securities a certificate of the
Treasurer of the Company, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail such
facts as shall be necessary to show the reason for and the manner of
computing such adjustment, such certificate to be conclusive evidence
that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be given by the
Company, or at the Company's request, by the Trustee in the name and at the
expense of the Company, in the manner provided in Section 1.05. Any notice
so given shall be conclusively presumed to have been duly given, whether or
not the Holder receives such notice.
Section 16.06. Notice In Certain Events.
------------------------
In case:
(1) of a consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of
the sale or conveyance to another Person or entity or group of Persons or
entities acting in concert as a partnership, limited partnership, syndicate
or other group (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of all or substantially all of the
property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion Price
pursuant to this Article Sixteen;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Debt Securities, and shall cause to be
given, to the Holders of applicable Debt Securities in the manner provided in
Section 1.05, at least fifteen (15) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article
Sixteen, or, if a
<PAGE>
116
record is not to be taken, the date as of which the holders of record of an
Equity Security entitled to such distribution, rights or warrants are to be
determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article Sixteen is expected
to become effective, and the date as of which it is expected that holders of the
Equity Security of record shall be entitled to exchange their Equity Securities
for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2) or (3) of
this Section.
Section 16.07. Company To Reserve Equity Securities; Registration;
---------------------------------------------------
Listing.
- -------
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of its Equity
Securities, for the purpose of effecting the conversion of the Debt Securities,
such number of its duly authorized shares of Equity Securities as shall from
time to time be sufficient to effect the conversion of all applicable
Outstanding Debt Securities into such Equity Securities at any time (assuming
that, at the time of the computation of such number of shares or securities, all
such Debt Securities would be held by a single holder); provided, however, that
-------- -------
nothing contained herein shall preclude the Company from satisfying its
obligations in respect of the conversion of the Debt Securities by delivery of
purchased shares of Equity Securities which are held in the treasury of the
Company. The Company shall from time to time, in accordance with the laws of
the Commonwealth of Pennsylvania, use its best efforts to cause the authorized
amount of the Equity Securities to be increased if the aggregate of the
authorized amount of the Equity Securities remaining unissued and the issued
shares of such Equity Securities in its treasury (other than any such shares
reserved for issuance in any other connection) shall not be sufficient to permit
the conversion of all Debt Securities. The Company covenants that all shares of
Equity Securities which may be issued upon conversion of Debt Securities will
upon issue be fully paid and nonassessable and free from all liens and charges
and, except as provided in Section 16.08, taxes with respect to the issue
thereof.
(b) If any shares of Equity Securities which would be issuable upon
conversion of Debt Securities hereunder require registration with or approval
of any governmental authority before such shares or securities may be issued
upon such
<PAGE>
117
conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company further covenants that so long as the Equity
Securities shall be listed on the New York Stock Exchange, the Company will, if
permitted by the rules of such exchange, list and keep listed all Common Stock
issuable upon conversion of the Debt Securities, and the Company will endeavor
to list the shares of Equity Securities required to be delivered upon conversion
of the Debt Securities prior to such delivery upon any other national securities
exchange upon which the outstanding Equity Securities are listed at the time of
such delivery.
Section 16.08. Taxes on Conversion.
-------------------
The issue of stock certificates on conversion of Debt Securities shall
be made without charge to the converting Holder for any tax in respect of the
issue thereof, and the Company shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the issue or
delivery of shares of Equity Securities on conversion of Debt Securities
pursuant hereto. The Company shall not, however, be required to pay any such
tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of Equity Securities or the portion, if any, of the Debt
Securities which are not so converted in a name other than that in which the
Debt Securities so converted were registered (in the case of Registered
Securities), and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to the Company the amount of such tax or
has established to the satisfaction of the Company that such tax has been paid.
Section 16.09. Conversion After Record Date.
----------------------------
If any Registered Securities are surrendered for conversion subsequent
to the record date preceding an Interest Payment Date but on or prior to such
Interest Payment Date (except Registered Securities called for redemption on a
Redemption Date between such record date and Interest Payment Date), the Holder
of such Registered Securities at the close of business on such record date shall
be entitled to receive the interest payable on such Registered Securities on
such Interest Payment Date notwithstanding the conversion thereof. Registered
Securities surrendered for conversion during the period from the close of
business on any record date next preceding any Interest Payment Date to the
opening of business on such Interest Payment Date shall (except in the case of
Registered Securities which have been called for redemption on a Redemption Date
within such period, in which case, notwithstanding anything to the contrary
contained in this Indenture, no interest payment shall be made on such
Interest Payment Date to the Holders of such Registered Security on such
record date) be accompanied by payment in New York Clearing House funds or
other funds and in the Currency in which such Registered Security is payable
or another Currency acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the Registered Securities
being
<PAGE>
118
surrendered for conversion. Except as provided in this Section 16.09 and
Section 16.02(c), no adjustments in respect of payments of interest on Debt
Securities surrendered for conversion or any dividends or distributions or
interest on the Equity Securities issued upon conversion shall be made upon the
conversion of any Debt Securities.
Section 16.10. Company Determination Final.
---------------------------
Any determination that the Company or the Board of Directors must make
pursuant to this Article shall be conclusive if made in good faith and in
accordance with the provisions of this Article, absent manifest error.
Section 16.11. Trustee's Disclaimer.
--------------------
The Trustee has no duty to determine when an adjustment of the
Conversion Price should be made, how it should be made or what it should be.
The Trustee makes no representation and shall not be accountable as to the
validity or value of any securities or assets issued upon conversion of Debt
Securities. The Trustee shall not be responsible for the Company's failure to
comply with this Article. Each Conversion Agent other than the Company shall
have the same protection under this Section as the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
SUN COMPANY, INC.
By: /s/ Richard L. Cartlidge
-------------------------
Title: Comptroller
----------------------
Attest:
/s/ Donald J. Ainsworth
- -----------------------
Title: Corporate Secretary
Seal
CITIBANK, N.A.
as Trustee
By: /s/ P. DeFelice
-------------------------
Title: Vice President
----------------------
Attest:
/s/ Shelagh Gallagher
- -----------------------
Title: Assistant Vice President
Seal
<PAGE>
119
COMMONWEALTH OF PENNSYLVANIA )
: SS.:
COUNTY OF PHILADELPHIA )
On the 19th day of May, 1994, before me personally came Donald J.
Ainsworth, to me known, who, being by me duly sworn, did depose and say that
he resides at 1801 Market Street, Philadelphia, PA 19103; that he is the
Corporate Secretary of Sun Company, Inc., one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation, that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Thomas Brownlie, Jr.
------------------------------
Notary Public
SEAL
<PAGE>
120
STATE OF NEW YORK )
: SS.:
COUNTY OF NEW YORK )
On the 19th day of May, 1994, before me personally came P. DeFelice,
to me known, who, being by me duly sworn, did depose and say that he resides
at 47-09 169th Street, Flushing, N.Y. 11358; that he is a Vice President of
Citibank, N.A., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
/s/ Jeffrey Berger
------------------------------
Notary Public
SEAL
<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
------------------------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof and except as set forth
below principal amount of the above captioned Debt Securities held by
you for our account (i) is owned by person(s) that are not United States
person(s) (as defined below), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise the Company or the
Company's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the Treasury regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury regulations), and in addition if the owner of the Debt
Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this is
to further certify that such financial institution has not acquired the Debt
Securities for the purpose of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the beneficial
interest in the temporary Global Security held by you for our account in
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence
<PAGE>
2
of any such notification it may be assumed that this certification applies as of
such date.
This certificate excepts and does not relate to ___________ principal
amount of Debt Securities held by you for our account as to which we are not
able to provide a certificate in this form. We understand that exchange of such
portion of the temporary Global Note for definitive Bearer Securities or
interests in a permanent Global Note cannot be made until we are able to provide
a certificate in this form.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: _____________________, 19___
[To be dated no earlier than the
10th day before the Exchange Date]
By:
---------------------------------------
As, or as agent for, the beneficial
owner(s) of the portion of the
temporary Global Note to which this
certificate relates.
<PAGE>
3
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
------------------------------
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof, __________
principal amount of the above-captioned Debt Securities (i) is owned by
person(s) that are not United States person(s) (as defined below), (ii) is owned
by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the Treasury regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for the purpose of resale
during the restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury regulations), and in addition United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Debt Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We further certify (i) that we are not making available for exchange
or collection of any interest any portion of the temporary Global Note excepted
in such certifications and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
<PAGE>
4
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: _____________________, 19___
[To be dated no earlier than the
Exchange Date]
By:
----------------------------------------
[MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE, as Operator of
the Euro-Clear System] [CEDEL, S.A.]
<PAGE>
Exhibit 4.2
- --------------------------------------------------------------------------------
SUN COMPANY, INC.
To
BANKERS TRUST COMPANY
Trustee
--------------------
Indenture
Dated as of May 15, 1994
--------------------
Subordinated Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of May 15, 1994
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C> <C>
(S) 310 (a)(1)................................................ 6.09
(a)(2)................................................ 6.09
(a)(3)............................................ Not Applicable
(a)(4)............................................ Not Applicable
(a)(5)................................................ 6.09
(b)................................................ 6.08, 6.10
(c)............................................... Not Applicable
(S) 311 (a).................................................. 6.13(a)
(b).................................................. 6.13(b)
(c)............................................... Not Applicable
(S) 312 (a)............................................... 7.01, 7.02(a)
(b).................................................. 7.02(b)
(c).................................................. 7.02(c)
(S) 313 (a).................................................. 7.03(a)
(b).................................................. 7.03(b)
(c).............................................. 7.03(a), 7.03(c)
(d).................................................. 7.03(d)
(S) 314 (a)................................................ 7.04, 12.02
(b)............................................... Not Applicable
(c)(1)................................................ 1.02
(c)(2)................................................ 1.02
(c)(3)............................................ Not Applicable
(d)............................................... Not Applicable
(e)................................................... 1.02
(S) 315 (a).............................................. 6.01(a), 6.01(c)
(b).............................................. 6.02, 7.03(a)(7)
(c).................................................. 6.01(b)
(d)(1)............................................... 6.01(a)
(d)(2)............................................. 6.01(c)(2)
(d)(3)............................................. 6.01(c)(3)
(e)................................................... 5.14
(S) 316 (a)(1)(A).......................................... 5.02, 5.12
(a)(1)(B)............................................. 5.13
(a)(2)............................................ Not Applicable
(b)................................................... 5.08
(c)............................................... Not Applicable
(S) 317 (a)(1)................................................ 5.03
(a)(2)................................................ 5.04
(b).................................................. 12.04
(S) 318 ...................................................... 1.06
- ----------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION............................. 1
Section 1.01. Definitions.................................................. 1
-----------
Section 1.02. Compliance Certificates and Opinions......................... 15
------------------------------------
Section 1.03. Form of Documents Delivered to Trustee....................... 15
--------------------------------------
Section 1.04. Notices, etc., to Trustee and Company........................ 16
-------------------------------------
Section 1.05. Notice to Holders; Waiver.................................... 17
--------------------------
Section 1.06. Conflict with Trust Indenture Act............................ 18
---------------------------------
Section 1.07. Effect of Headings and Table of Contents..................... 18
----------------------------------------
Section 1.08. Successors and Assigns....................................... 18
----------------------
Section 1.09. Separability Clause.......................................... 18
-------------------
Section 1.10. Benefits of Indenture........................................ 18
---------------------
Section 1.11. Governing Law................................................ 18
-------------
Section 1.12. Legal Holidays............................................... 19
--------------
Section 1.13. No Security Interest Created................................. 19
----------------------------
Section 1.14. Liability Solely Corporate................................... 19
--------------------------
ARTICLE TWO
DEBT SECURITY FORMS............................. 20
Section 2.01. Forms Generally............................................... 20
---------------
Section 2.02. Form of Trustee's Certificate of Authentication............... 21
-----------------------------------------------
Section 2.03. Securities in Global Form.................................... 21
-------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE THREE
THE DEBT SECURITIES............................. 21
Section 3.01. Amount Unlimited; Issuable in Series......................... 22
------------------------------------
Section 3.02. Denominations................................................ 26
-------------
Section 3.03. Execution, Authentication, Delivery and Dating............... 26
----------------------------------------------
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global Notes
-------------------------------------------------------------
for Definitive Bearer Securities; Global Notes Representing Registered
----------------------------------------------------------------------
Securities............................................................. 29
----------
Section 3.05. Registration, Transfer and Exchange.......................... 36
-----------------------------------
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities........ 39
-----------------------------------------------------
Section 3.07. Payment of Interest; Interest Rights Preserved............... 40
----------------------------------------------
Section 3.08. Cancellation................................................. 43
------------
Section 3.09. Computation of Interest...................................... 44
-----------------------
Section 3.10. Currency of Payments in Respect of Debt Securities........... 44
--------------------------------------------------
Section 3.11. Judgments.................................................... 48
---------
Section 3.12. Exchange Upon Default........................................ 49
---------------------
Section 3.13. CUSIP Numbers................................................ 49
-------------
ARTICLE FOUR
SATISFACTION AND DISCHARGE........................... 50
Section 4.01. Satisfaction and Discharge of Indenture..................... 50
---------------------------------------
Section 4.02. Application of Trust Money................................... 52
--------------------------
ARTICLE FIVE
REMEDIES................................... 52
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 5.01. Events of Default............................................ 52
-----------------
Section 5.02. Acceleration of Maturity; Rescission and Annulment........... 54
--------------------------------------------------
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee................................................................ 56
Section 5.04. Trustee May File Proofs of Claim............................. 57
--------------------------------
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
------------------------------------------------------
Securities or Coupons.................................................. 58
---------------------
Section 5.06. Application of Money Collected............................... 58
------------------------------
Section 5.07. Limitation on Suits.......................................... 59
-------------------
Section 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest................................................... 60
--------------------
Section 5.09. Restoration of Rights and Remedies........................... 60
----------------------------------
Section 5.10. Rights and Remedies Cumulative............................... 60
------------------------------
Section 5.11. Delay or Omission Not Waiver................................. 60
----------------------------
Section 5.12. Control by Holders........................................... 61
------------------
Section 5.13. Waiver of Past Defaults...................................... 61
-----------------------
Section 5.14. Undertaking for Costs........................................ 62
---------------------
ARTICLE SIX
THE TRUSTEE................................... 62
Section 6.01. Certain Duties and Responsibilities.......................... 62
-----------------------------------
Section 6.02. Notice of Defaults........................................... 63
------------------
Section 6.03. Certain Rights of Trustee.................................... 64
-------------------------
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities.. 66
-----------------------------------------------------------
Section 6.05. May Hold Debt Securities..................................... 66
------------------------
Section 6.06. Money Held in Trust.......................................... 66
-------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 6.07. Compensation and Reimbursement............................... 66
------------------------------
Section 6.08. Disqualification; Conflicting Interests...................... 67
---------------------------------------
Section 6.09. Corporate Trustee Required; Eligibility...................... 68
---------------------------------------
Section 6.10. Resignation and Removal; Appointment of Successor............ 68
-------------------------------------------------
Section 6.11. Acceptance of Appointment by Successor....................... 70
--------------------------------------
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.. 71
-----------------------------------------------------------
Section 6.13. Preferential Collection of Claims Against Company............ 72
-------------------------------------------------
Section 6.14. Appointment of Authenticating Agent.......................... 72
-----------------------------------
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............... 74
Section 7.01. Company to Furnish Trustee and Addresses of Holders.......... 74
---------------------------------------------------
Section 7.02. Preservation of Information; Communication to Holders........ 75
-----------------------------------------------------
Section 7.03. Reports by Trustee........................................... 76
------------------
Section 7.04. Reports by Company........................................... 78
------------------
ARTICLE EIGHT
CONCERNING THE HOLDERS............................. 79
Section 8.01. Acts of Holders.............................................. 79
---------------
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by
--------------------------------------------------------
Holder................................................................. 80
------
Section 8.03. Persons Deemed Owners........................................ 81
---------------------
Section 8.04. Revocation of Consents; Future Holders Bound................. 81
--------------------------------------------
ARTICLE NINE
HOLDERS' MEETINGS............................... 82
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 9.01. Purposes of Meetings......................................... 82
--------------------
Section 9.02. Call of Meetings by Trustee.................................. 82
---------------------------
Section 9.03. Call of Meetings by Company or Holders....................... 83
---------------------------------------
Section 9.04. Qualifications for Voting.................................... 83
-------------------------
Section 9.05. Regulations.................................................. 83
-----------
Section 9.06. Voting....................................................... 84
------
Section 9.07. No Delay of Rights by Meeting................................ 85
-----------------------------
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.............. 85
Section 10.01. Company May Consolidate, etc., Only on Terms................ 85
--------------------------------------------
Section 10.02. Successor Corporation Substituted........................... 85
---------------------------------
Section 10.03. Opinion of Counsel to be Given Trustee...................... 86
--------------------------------------
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES............................ 87
Section 11.01. Supplemental Indentures Without Consent of Holders.......... 87
--------------------------------------------------
Section 11.02. Supplemental Indentures With Consent of Holders............. 88
-----------------------------------------------
Section 11.03. Execution of Supplemental Indentures........................ 90
------------------------------------
Section 11.04. Effect of Supplemental Indentures........................... 90
---------------------------------
Section 11.05. Conformity with Trust Indenture Act......................... 90
-----------------------------------
Section 11.06. Reference in Debt Securities to Supplemental Indentures..... 91
-------------------------------------------------------
Section 11.07. Notice of Supplemental Indenture............................ 91
--------------------------------
ARTICLE TWELVE
COVENANTS.................................. 91
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 12.01. Payment of Principal, Premium and Interest................. 91
------------------------------------------
Section 12.02. Officer's Certificate as to Default........................ 92
-----------------------------------
Section 12.03. Maintenance of Office or Agency............................ 92
-------------------------------
Section 12.04. Money for Debt Securities; Payments to Be Held in Trust.... 94
-------------------------------------------------------
Section 12.05. [Intentionally Omitted].................................... 95
Section 12.06. Purchase of Debt Securities by Company..................... 95
--------------------------------------
Section 12.07. Waiver of Certain Covenants................................ 96
---------------------------
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES....................... 96
Section 13.01. Applicability of Article................................... 96
------------------------
Section 13.02. Election to Redeem: Notice to Trustee...................... 96
-------------------------------------
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed..... 97
------------------------------------------------------
Section 13.04. Notice of Redemption....................................... 98
--------------------
Section 13.05. Deposit of Redemption Price................................ 99
---------------------------
Section 13.06. Debt Securities Payable on Redemption Date................. 99
------------------------------------------
Section 13.07. Debt Securities Redeemed in Part........................... 100
--------------------------------
ARTICLE FOURTEEN
SINKING FUNDS............................... 101
Section 14.01. Applicability of Article................................... 101
------------------------
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt
---------------------------------------------------------
Securities............................................................ 101
----------
Section 14.03. Redemption of Debt Securities for Sinking Fund............. 102
----------------------------------------------
ARTICLE FIFTEEN
DEFEASANCE.................................. 104
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 15.01. Applicability of Article................................... 104
------------------------
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government
----------------------------------------------------
Obligations........................................................... 104
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be
------------------------------------------------------
Held in Trust......................................................... 106
-------------
Section 15.04. Repayment to Company....................................... 107
--------------------
ARTICLE SIXTEEN
SUBORDINATION............................... 107
Section 16.01. Agreement to Subordinate................................... 107
------------------------
Section 16.02. Distribution on Dissolution, Liquidation and Reorganization;
------------------------------------------------------------
Subrogation of Debt Securities........................................ 107
------------------------------
Section 16.03. No Payment on Debt Securities in Event of Default on Senior
-----------------------------------------------------------
Indebtedness.......................................................... 110
------------
Section 16.04. Payments on Debt Securities Permitted...................... 110
-------------------------------------
Section 16.05. Authorization of Holders to Trustee to Effect
---------------------------------------------
Subordination......................................................... 111
-------------
Section 16.06. Notices to Trustee......................................... 111
------------------
Section 16.07. Trustee as Holder of Senior Indebtedness................... 112
----------------------------------------
Section 16.08. Modifications of Terms of Senior Indebtedness.............. 112
---------------------------------------------
Section 16.09. Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent................................................................. 113
-----
Section 16.10. Article Sixteen Not to Prevent Events of Default........... 113
------------------------------------------------
Section 16.11. Certain Conversions Not Deemed Payment..................... 113
--------------------------------------
ARTICLE SEVENTEEN
CONVERSION.................................. 114
Section 17.01. Applicability; Conversion Privilege........................ 114
-----------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 17.02. Conversion Procedure; Conversion Price; Fractional Shares.. 115
---------------------------------------------------------
Section 17.03. Adjustment of Conversion Price for Common Stock............ 117
-----------------------------------------------
Section 17.04. Consolidation or Merger of the Company..................... 121
--------------------------------------
Section 17.05. Notice of Adjustment....................................... 121
--------------------
Section 17.06. Notice in Certain Events................................... 122
------------------------
Section 17.07. Company To Reserve Equity Securities; Registration;
---------------------------------------------------
Listing............................................................... 123
-------
Section 17.08. Taxes on Conversion........................................ 124
-------------------
Section 17.09. Conversion After Record Date............................... 124
----------------------------
Section 17.10. Company Determination Final................................ 125
---------------------------
Section 17.11. Trustee's Disclaimer....................................... 125
--------------------
</TABLE>
<PAGE>
INDENTURE dated as of May 15, 1994, between SUN COMPANY, INC., a
Pennsylvania corporation (hereinafter called the "Company)"), having its
principal executive office at Ten Penn Center, 1801 Market Street, Philadelphia,
PA 19103, and Bankers Trust Company, a New York banking corporation
(hereinafter called the "Trustee"), having its principal corporate trust office
at Four Albany Street, New York, NY 10006.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
subordinated debentures, notes, bonds or other evidences of indebtedness (herein
generally called the "Debt Securities"), to be issued in one or more series, as
in this Indenture provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
1
<PAGE>
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning specified
in Section 8.01.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Affiliated Corporation" means any corporation which is controlled by
the Company but which is not a Subsidiary of the Company pursuant to the
definition of the term "Subsidiary."
"Authenticating Agent" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in the place in connection with which the term is used
or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business
Day in such city.
2
<PAGE>
"Bearer Security" means any Debt Security (with or without Coupons), in the
form established pursuant to Section 2.01, which is payable to bearer
(including any Global Note payable to bearer) and title to which passes by
delivery only, but does not include any Coupons.
"Board of Directors" means either the board of directors of the
Company, or any committee of that board duly authorized to act hereunder or
any director or directors and/or officer or officers of the Company to whom
that board or committee shall have delegated its authority.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee. As used in this
Indenture reference to action taken pursuant to a Board Resolution shall
include, without limitation, all action taken by an officer of the Company
who has been duly authorized by the Board of Directors to take such action.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in that
Place of Payment or other location are authorized or obligated by law to
close, except as otherwise specified pursuant to Section 3.01.
"CEDEL" means Cedel S.A.
"Closing Price" of an Equity Security means the last reported sale
price of such stock (regular way) as shown on the Composite Tape of the New
York Stock Exchange (or, if such stock is not listed or admitted to trading
on the New York Stock Exchange, on the principal national securities
exchange on which such stock is listed or admitted to trading), or, in case
no such sale takes place on such day, the average of the closing bid and
asked prices on the New York Stock Exchange (or, if such stock is not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which such stock is listed or
admitted to trading), or, if it is not listed or admitted to trading on any
national securities exchange, the last reported sale price of such stock as
reported by the National Association of Securities Dealers Automated
Quotation System (NASDAQ), or in case no such sale takes place on such day,
the average of the closing bid and asked prices as reported by NASDAQ, or
if such stock is not so
3
<PAGE>
reported, the average of the closing bid and asked prices as furnished by
any member of the National Association of Securities Dealers, Inc.,
selected from time to time by the Company for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended and as in
effect on the date hereof.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, as amended, or if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such duties on
such date.
"Common Stock" means the class of Common Stock, $1 par value, of the
Company authorized at the date of this Indenture as originally signed or
any other class of stock resulting from successive changes or
reclassifications of such Common Stock and which does not have any priority
in the payment of dividends or upon liquidation over any other class of
stock and which is not subject to redemption by the Company; provided that
if Debt Securities convertible into Common Stock are Outstanding at the
time of such successive changes or reclassifications and there shall be
more than one such resulting class of stock, the shares of each resulting
class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman, the
Chief Executive Officer, the President, the Chief Financial Officer or a
Vice President and by the Treasurer, an Assistant Treasurer, the
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Component Currency" has the meaning specified in Section 3.10(i).
4
<PAGE>
"Conversion Agent" means any Person authorized by the Company to
receive Debt Securities to be converted into Equity Securities on behalf of
the Company. The Company initially authorizes the Trustee to act as
Conversion Agent for the Debt Securities on its behalf. The Company may at
any time and from time to time authorize one or more Persons to act as
Conversion Agent in addition to or in place of the Trustee with respect to
any series of Debt Securities issued under this Indenture.
"Conversion Date" has the meaning specified in Section 3.10(e).
"Conversion Event" means the cessation of (i) a Foreign Currency to be
used both by the government of the country which issued such Currency and
for the settlement of transactions by public institutions of or within the
international banking community, (ii) the ECU to be used both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency
unit other than the ECU to be used for the purposes for which it was
established.
"Conversion Price" means, with respect to any series of Debt
Securities which are convertible into Equity Securities, the price per
share of Equity Securities at which the Debt Securities of such series are
so convertible, as specified pursuant to Section 3.01 with respect to such
series, as such price may be adjusted from time to time in accordance with
Section 17.03.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this
instrument is located at Four Albany Street, New York, New York 10006.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to any Debt Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
5
<PAGE>
"Currency Determination Agent" means the New York Clearing House bank,
if any, from time to time selected by the Company pursuant to Section 3.01;
provided that such agent shall accept such appointment in writing and the
--------
terms of such appointment shall be acceptable to the Company and shall, in
the opinion of the Company at the time of such appointment, require such
agent to make the determinations required by this Indenture by a method
consistent with the method provided in this Indenture for the making of
such decision or determination.
"Current Market Price" of an Equity Security on any date means the
average of the daily Closing Prices per share of such Equity Security for
any thirty (30) consecutive Trading Days selected by the Company prior to
the date in question, which thirty (30) consecutive Trading Day period
shall not commence more than forty-five (45) Trading Days prior to the day
in question; provided that with respect to Section 17.03(3), the "Current
--------
Market Price" of such Equity Security shall mean the average of the daily
Closing Prices per share of such Equity Security for the five (5)
consecutive Trading Days ending on the date of the distribution referred to
in Section 17.03(3) (or if such date shall not be a Trading Day, on the
Trading Day immediately preceding such date).
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities (including any
Global Notes) authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Discharged" has the meaning specified in Section 15.02.
"Discount Security" means any Debt Security which is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code
and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time of payment is legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 3.10(g).
6
<PAGE>
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Equity Security" means either Common Stock or Preference Stock or
both Common Stock and Preference Stock.
"Euro-clear Operator" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor as operator of the Euro-clear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Rate Officer's Certificate" means a telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar,
Foreign Currency or Currency unit amounts of principal, premium, if any,
and any interest respectively (on an aggregate basis and on the basis of a
Debt Security having the lowest denomination principal amount determined in
accordance with Section 3.02 in the relevant Currency or Currency unit),
payable on the basis of such Market Exchange Rate sent (in the case of a
telex) or signed (in the case of a certificate) by the Treasurer or any
Assistant Treasurer of the Company.
"Fixed Rate Security" means a Debt Security which provides for the
payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security which provides for the
payment of interest at a variable rate determined periodically by reference
to an interest rate index or any other index specified pursuant to Section
3.01.
"Foreign Currency" means (i) a currency issued by the government of
any country other than the United States or (ii) a composite currency or
currency unit the value of which is determined by reference to the values
of the currencies of any group of countries.
7
<PAGE>
"Global Note" means a Registered or Bearer Security evidencing all or
part of a series of Debt Securities, including, without limitation, any
temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the Registered
Holder, and with respect to a Bearer Security or a Coupon, the bearer
thereof.
"Indebtedness" of any Person means (1) any liability of such Person
(a) for borrowed money, or (b) evidenced by a note or similar instrument
given in connection with the acquisition of any business, properties, or
assets of any kind, or (c) for the payment of money under a lease that is
required to be classified as a capitalized lease obligation in accordance
with generally accepted accounting principles; (2) any liability of others
described in the preceding clause (1) that such Person has guaranteed; and
(3) any amendment, supplement, modification, deferral, renewal, extension
or refunding of any liability of the types referred to in clauses (1) and
(2) above.
"Indenture" means this instrument as originally executed, or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof and, unless the context otherwise requires, shall include the terms
of a particular series of Debt Securities as established pursuant to
Section 3.01.
The term "interest," when used with respect to a Discount Security
which by its terms bears interest only at maturity, means interest payable
at Maturity, and, when used with respect to a Bearer Security, includes any
additional amounts payable on such Bearer Security, if so provided pursuant
to Section 3.01.
"Interest Payment Date" with respect to any Debt Security means the
Stated Maturity of an installment of interest on such Debt Security.
"Market Exchange Rate" means (i) for any conversion involving a
Currency unit on the one hand and Dollars or any Foreign Currency on the
other, the exchange rate between the relevant Currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to
Section 3.01 for the securities of the relevant series, (ii) for any
conversion of Dollars into any Foreign Currency, the noon (New York City
time) buying rate for such Foreign Currency for cable transfers quoted in
New York City as certified for customs purposes by the Federal Reserve Bank
of New York and
8
<PAGE>
(iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market
at which, in accordance with normal banking procedures, the Dollars or
Foreign Currency into which conversion is being made could be purchased
with the Foreign Currency from which conversion is being made from major
banks located in either New York City, London or any other principal market
for Dollars or such purchased Foreign Currency. In the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii) the Currency Determination Agent, if any, or if
there shall not be a Currency Determination Agent, then the Trustee, shall
use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in New York
City, London or other principal market for such Currency or Currency unit
in question, or such other quotations as the Currency Determination Agent
or the Trustee, as the case may be, shall deem appropriate. Unless
otherwise specified by the Currency Determination Agent, if any, or if
there shall not be a Currency Determination Agent, then by the Trustee, if
there is more than one market for dealing in any Currency or Currency unit
by reason of foreign exchange regulations or otherwise, the market to be
used in respect of such Currency or Currency unit shall be that upon which
a nonresident issuer of securities designated in such Currency or Currency
unit would purchase such Currency or Currency unit in order to make
payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means the date
on which the principal of such Debt Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption,
repayment at the option of the Holder thereof or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Comptroller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Company (including an employee of the Company) and who shall
be satisfactory to the Trustee, which is delivered to the Trustee.
9
<PAGE>
"Outstanding" when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Debt Securities and any Coupons thereto
appertaining; provided, however, that if such Debt Securities are to be
-------- -------
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Debt Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Debt Securities in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Debt Securities are
held by a bona fide purchaser in whose hands such Debt Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the
-------- -------
requisite principal amount of Debt Securities Outstanding have performed
any Act hereunder, Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in
relying upon any such Act, only Debt Securities which the Trustee knows
to be so owned shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right to act with respect to such Debt Securities and that the pledgee is
not the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor. In determining whether
the Holders of the requisite principal amount of Outstanding Debt
Securities have performed any Act hereunder, the principal amount of a
Discount Security that shall be deemed to be Outstanding for such purpose
shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02 and
10
<PAGE>
the principal amount of a Debt Security denominated in a Foreign Currency
that shall be deemed to be Outstanding for such purpose shall be the amount
calculated pursuant to Section 3.10(k).
"Overdue Rate," when used with respect to any series of the Debt
Securities, means the rate, if any, designated as such in or pursuant to
the Board Resolution or the supplemental indenture, as the case may be,
relating to such series as contemplated by Section 3.01.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on
behalf of the Company.
"Permanent Global Note" shall have the meaning given such term in
Section 3.04(b).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt Securities of
any series means the place or places where the principal of (and premium,
if any) and interest on the Debt Securities of that series are payable as
specified pursuant to Section 3.01.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section
3.06 in lieu of a mutilated, lost, destroyed or stolen Debt Security or a
Debt Security to which a mutilated, lost, destroyed or stolen Coupon
appertains shall be deemed to evidence the same debt as the mutilated,
lost, destroyed or stolen Debt Security or the Debt Security to which the
mutilated, lost, destroyed or stolen coupon appertains, as the case may be.
"Preference Stock" means the class of Preference Stock of the Company
authorized at the date of this Indenture as originally signed, or any other
class of stock resulting from successive changes or reclassifications of
such stock which may hereafter be outstanding; provided, that if Debt
--------
Securities convertible into Preference Stock are Outstanding at the time of
such successive changes or reclassifications and there shall be more than
one such resulting class of stock, the shares of each resulting class then
so issuable shall be substantially in the proportion which the total
11
<PAGE>
number of shares of such class resulting from such reclassification bears
to the total number of shares of all such classes resulting from all such
reclassifications.
"Redemption Date" means the date fixed for redemption of any Debt
Security pursuant to this Indenture which, in the case of a Floating Rate
Security, unless otherwise specified pursuant to Section 3.01, shall be an
Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security, the
amount of the principal thereof that would be due and payable as of the
Redemption Date upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, and in the case of any other Debt Security, the
principal amount thereof, plus, in each case, premium, if any, and accrued
and unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form established
pursuant to Section 2.01 which is registered as to principal and interest
in the Security Register.
"Regular Record Date" for the interest payable on the Registered
Securities of any series on any Interest Payment Date means the date
specified for that purpose pursuant to Section 3.01 for such Interest
Payment Date.
"Responsible Officer" when used with respect to the Trustee means any
officer with the Corporate Trust and Agency Group (or any successor group
of the Trustee), including any vice president, the secretary, any assistant
secretary or any assistant vice president or any other officer of the
Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05(a).
"Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest on (i) Indebtedness of the Company, whether outstanding on
the date of this Indenture or thereafter created, incurred, assumed or
12
<PAGE>
guaranteed, for money borrowed (other than the Indebtedness evidenced by
the Debt Securities of any series), unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding it is
provided that such Indebtedness is not senior or prior in right of payment
to the Debt Securities or is pari passu or subordinate by its terms in
---- -----
right of payment to the Debt Securities, and (ii) renewals, extensions and
modifications of any such Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section 3.10(i).
"Stated Maturity" when used with respect to any Debt Security or any
installment of principal thereof or premium thereon or interest thereon
means the date specified in such Debt Security or the Coupon, if any,
representing such installment of interest, as the date on which the
principal of such Debt Security or such installment of principal, premium
or interest is due and payable.
"Subsidiary" means any corporation more than 50% of the outstanding
voting stock of which is owned by the Company or by one or more
Subsidiaries thereof, or by the Company and one or more Subsidiaries. For
purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors whether at all times or
only so long as no senior class of stock has such voting power by reason
of any contingency.
"Temporary Global Note" shall have the meaning given such term in
Section 3.04(b).
"Trading Day" means, with respect to an Equity Security, so long as
the Equity Security is listed or admitted to trading on the New York
Stock Exchange, a day on which the New York Stock Exchange is open for
the transaction of business, or, if the Equity Security is not listed or
admitted to trading on the New York Stock Exchange, a day on which the
principal national securities exchange on which the Equity Security is
listed is open for the transaction of business, or, if the Equity
Security is not so listed or admitted for trading on any national
securities exchange, a day on which NASDAQ is open for the transaction of
business.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor
13
<PAGE>
Trustee shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one
such Person, "Trustee" as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to Debt securities of that
series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended
and in force at the date as of which this instrument was executed, except
as provided in Section 11.05.
"United States" means the United States of America (including the
States and the District of Columbia), and its possessions, which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Company pursuant to Section
3.01 until a successor U.S. Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "U.S.
Depositary" shall mean or include each Person who is then a U.S. Depositary
hereunder, and if at any time there is more than one such Person, "U.S.
Depositary" as used with respect to the Debt Securities of any series shall
mean the U.S. Depositary with respect to the Debt Securities of that
series.
"U.S. Government Obligations" has the meaning specified in Section
15.02.
"U.S. Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under
the laws of the United States, or an estate or trust the income of which is
subject to United States Federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the Trustee,
any Vice President of the Company or the Trustee, as the case may be,
whether or not designated by a number or word or words added before or
after the title "Vice President."
14
<PAGE>
"Wholly Owned Subsidiary" means a Subsidiary of which all of the
outstanding voting stock (other than directors' qualifying shares) is at
the time, directly or indirectly, owned by the Company, or by one or more
Wholly Owned Subsidiaries of the Company or by the Company and one or more
Wholly Owned Subsidiaries.
Section 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 12.02) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or
15
<PAGE>
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Notices, etc., to Trustee and Company.
-------------------------------------
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first class postage prepaid, or airmail postage
prepaid, if sent from outside the United States, to the Trustee at P.O.
Box 318, Church Street Station, New York, NY 10015, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid or airmail postage
prepaid if sent from outside the United States, to the Company addressed to
it at the address of its principal office specified in the first paragraph
of this instrument, to the attention of its Secretary, or at any other
address furnished in writing to the Trustee by the Company.
16
<PAGE>
Any such Act or other document shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Section 1.05. Notice to Holders; Waiver.
-------------------------
When this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to such Registered Holders affected by such event, as their names and
addresses appear in the Security Register, within the time prescribed, and (2)
such notice shall be sufficiently given to Holders of Bearer Securities or
Coupons (unless otherwise herein expressly provided) if published at least twice
in an Authorized Newspaper or Newspapers in The City of New York and, if Debt
Securities of such series are then listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, in a daily newspaper in London or Luxembourg or in such other
city or cities specified pursuant to Section 3.01 or in any Debt Security on a
Business Day at least twice, the first such publication to be not earlier than
the earliest date and not later than two Business Days prior to the latest date
prescribed for the giving of such notice; provided, however, that, in any case,
-------- -------
any notice to Holders of Floating Rate Securities regarding the determination of
a periodic rate of interest, if such notice is required pursuant to Section
3.01, shall be sufficiently given if given in the manner specified pursuant to
Section 3.01.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice nor any
17
<PAGE>
defect in any notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any notice which
is mailed in the manner herein provided shall be conclusively deemed to have
been duly given whether or not actually received by such Holder. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
Section 1.06. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any Person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
Section 1.07. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the parties hereto
shall bind their respective successors and assigns and inure to the benefit of
their permitted successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
-------------------
In case any provision in this Indenture or in the Debt Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.10. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law.
-------------
This Indenture, the Debt Securities and the Coupons shall be governed
by and construed in accordance with the laws of
18
<PAGE>
the State of New York without regard to the conflicts of law rules of the State.
Section 1.12. Legal Holidays.
--------------
Unless otherwise specified pursuant to Section 3.01 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series or the last date on which a Holder
has the right to convert Debt Securities of such series that are convertible
shall not be a Business Day at any Place of Payment for the Debt Securities of
that series, then (notwithstanding any other provision of this Indenture or of
the Debt Securities or Coupons) payment of principal (and premium, if any) or
interest need not be made at such Place of Payment on such date and such Debt
Securities need not be converted on such date, but any such payment may be made
at such Place of Payment and such Debt Securities may be converted, on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity or on such last
day for conversion, and no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day if such payment is made or
duly provided for on such Business Day.
Section 1.13. No Security Interest Created.
----------------------------
Nothing in this Indenture or in the Debt Securities or Coupons,
express or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect in any jurisdiction where property of the Company or its
Subsidiaries is or may be located.
Section 1.14. Liability Solely Corporate.
--------------------------
No recourse for the payment of the principal of (or premium, if any)
or the interest on any Debt Securities or Coupons, or for any claim based
thereon or otherwise in respect thereof, or upon any obligation, covenant or
agreement of this Indenture or in any supplemental indenture or in any Debt
Security or Coupon, or because of the creation of any indebtedness represented
thereby shall be had, against any incorporator, or against any stockholder,
officer or director, as such, past, present or future, of the Company (or any
incorporator, stockholder, officer or director of any predecessor or successor
corporation), either directly or through the Company (or any such predecessor or
successor corporation), whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being
19
<PAGE>
expressly agreed and understood that this Indenture and all the Debt Securities
and Coupons are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company (or
any incorporator, stockholder, officer or director of any such predecessor or
successor corporation), either directly or indirectly through the Company or any
such predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants, promises
or agreements contained in this Indenture or in any of the Debt Securities or
Coupons or to be implied herefrom or therefrom; and that all such personal
liability is hereby expressly waived and released as a condition of, and as part
of the consideration for, the execution of this Indenture and the issue of Debt
Securities.
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. Forms Generally.
---------------
The Debt Securities and the Coupons, if any, of each series shall be
substantially in one of the forms (including global form) established in or
pursuant to a Board Resolution or one or more indentures supplemental hereto,
and shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
determined by the officers executing such Debt Securities and Coupons as
conclusively evidenced by their execution of such Debt Securities and Coupons.
If the form of a series of Debt Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 3.03 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.01, Debt
Securities in bearer form (other than in global form) shall have Coupons
attached.
20
<PAGE>
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Debt Securities and Coupons, as
conclusively evidenced by their execution of such Debt Securities and Coupons.
Section 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities referred to in the within
mentioned Indenture.
BANKERS TRUST COMPANY
as Trustee
Dated: By
-----------------------------
Authorized Signatory
Section 2.03. Securities in Global Form.
-------------------------
If any Debt Security of a series is issuable in global form (a "Global
Note"), such Global Note may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges or
conversions. Any endorsement of a Global Note to reflect the amount, or any
increase or decrease in the amount, of Outstanding Debt Securities represented
thereby shall be made by the Trustee and in such manner as shall be specified in
such Global Note. Any instructions by the Company with respect to a Global
Note, after its initial issuance, shall be in writing but need not comply with
Section 1.02.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
21
<PAGE>
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution and
(subject to Section 3.03) set forth in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of Debt
Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of
Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of, transfer of, or in exchange for, or in lieu
of, other Debt Securities of such series pursuant to Sections 3.04, 3.05,
3.06, 11.06 or 13.07);
(3) the date or dates on which or periods during which the Debt
Securities of the series may be issued, and the date or dates (or the
method of determination thereof) on which the principal of (and premium, if
any, on) the Debt Securities of such series are or may be payable (which,
if so provided in or pursuant to such Board Resolution or supplemental
indenture, may be determined by the Company from time to time and set forth
in the Debt Securities of the series issued from time to time);
(4) the rate or rates (or the method of determination thereof) at
which the Debt Securities of the series shall bear interest, if any, and
the dates from which such interest shall accrue (which, in either case or
both, if so provided in or pursuant to such Board Resolution or
supplemental indenture, may be determined by the Company from time to time
and set forth in the Debt Securities of the series issued from time to
time); and the Interest Payment Dates on which such interest shall be
payable (or the method of determination thereof), and, in the case of
Registered Securities, the Regular Record Dates for the interest payable on
such Interest Payment Dates and, in the case of Floating Rate Securities,
the notice, if any, to Holders regarding the determination of interest and
the manner of giving such notice;
22
<PAGE>
(5) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Registered
Securities) or the principal London office of the Trustee (in the case of
Bearer Securities), where the principal of (and premium, if any) and
interest on Debt Securities of the series shall be payable; the extent to
which, or the manner in which, any interest payable on any Global Note on
an Interest Payment Date will be paid, if other than in the manner provided
in Section 3.07; the extent, if any, to which the provisions of the last
sentence of Section 12.01 shall apply to the Debt Securities of the series;
and the manner in which any principal of, or premium, if any, or, any
Global Note will be paid, if other than as set forth elsewhere herein;
(6) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder and the period or
periods within which or the dates on which, the prices at which and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(7) the period or periods within which, or the date or dates on
which, the price or prices at which, and the terms and conditions upon
which Debt Securities of the series may be redeemed, if any, in whole or in
part, at the option of the Company or otherwise;
(8) if the coin or Currency in which the Debt Securities shall be
issuable is in Dollars, the denominations of such Debt Securities if other
than denominations of $1,000 and any integral multiple thereof (except as
provided in Section 3.04);
(9) whether the Debt Securities of the series are to be issued as
Discount Securities and the amount of discount with which such Debt
Securities may be issued and, if other than the principal amount thereof,
the portion of the principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(10) provisions, if any, for the defeasance of Debt Securities of the
series;
(11) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto, whether
Bearer Securities of the
23
<PAGE>
series may be exchanged for Registered Securities of the series, as
provided in Section 3.05(b) or otherwise and the circumstances under which
and the place or places at which any such exchanges, if permitted, may be
made;
(12) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued,
whether a procedure other than that set forth in Section 3.04(b) shall
apply and, if so, such other procedure, and if the procedure set forth in
Section 3.04(b) shall apply, the forms of certifications to be delivered
under such procedure;
(13) if other than Dollars, the Foreign Currency or Currencies in
which Debt Securities of the series shall be denominated or in which
payment of the principal of (and/or premium, if any) and/or interest on the
Debt Securities of the series may be made, and the particular provisions
applicable thereto and, if applicable, the amount of Debt Securities of the
series which entitles the Holder of a Debt Security of the series or its
proxy to one vote for purposes of Section 9.05;
(14) if the principal of (and premium, if any) or interest on Debt
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Debt
Securities are denominated or so payable without such election, in addition
to or in lieu of the provisions of Section 3.10, the period or periods
within which and the terms and conditions upon which, such election may be
made and the time and the manner of determining the exchange rate or rates
between the Currency or Currencies in which the Debt Securities are
denominated or payable without such election and the Currency or Currencies
in which the Debt Securities are to be paid if such election is made;
(15) the date as of which any Debt Securities of the series shall be
dated, if other than as set forth in Section 3.03;
(16) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index, including, but not limited to, an index based on a
Currency or Currencies other than that in which the Debt Securities are
denominated or payable, or any other type of index, the manner in which
such amounts shall be determined;
24
<PAGE>
(17) if the Debt Securities of the series are denominated or payable
in a Foreign Currency, any other terms concerning the payment of principal
of (and premium, if any) or any interest on such Debt Securities (including
the Currency or Currencies of payment thereof);
(18) the designation of the original Currency Determination Agent, if
any;
(19) the applicable Overdue Rate, if any;
(20) if the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.01;
(21) any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to Debt Securities of the
series;
(22) if Bearer Securities of the series are to be issued, (x) whether
interest in respect of any portion of a temporary Debt Security in global
form (representing all of the Outstanding Bearer Securities of the series)
payable in respect of any Interest Payment Date prior to the exchange of
such temporary Debt Security for definitive Debt Securities of the series
shall be paid to any clearing organization with respect to the portion of
such temporary Debt Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which
any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date, and (y) the terms upon which interests in such temporary Debt
Security in global form may be exchanged for interests in a permanent
Global Note or for definitive Debt Securities of the series and the terms
upon which interests in a permanent Global Note, if any, may be exchanged
for definitive Debt Securities of the series;
(23) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Notes and, in such case,
the U.S. Depositary or any Common Depositary for such Global Note or Notes;
and if the Debt Securities of the series are issuable only as Registered
Securities, the manner in which and the circumstances under which Global
Notes representing Debt Securities of the series may be exchanged for
Registered Securities in definitive form, if other than, or in addition to,
the manner and circumstances specified in Section 3.04(c);
(24) whether the Debt Securities of the series will be convertible
into shares of Equity Securities, and if so, the
25
<PAGE>
terms and conditions, which may be in addition to or in lieu of the
provisions of Article Seventeen, upon which such Debt Securities will be so
convertible, including the Conversion Price and the conversion period; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination, rate of interest, Stated Maturity and the date from
which interest, if any, shall accrue, which, as set forth above, may be
determined by the Company from time to time as to Debt Securities of a series if
so provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto, and except as may
otherwise be provided in or pursuant to such Board Resolution and (subject to
Section 3.03) set forth in such Officers' Certificate, or in any such indenture
supplemental hereto. All Debt Securities of any one series need not be issued
at the same time, and unless otherwise provided, a series may be reopened for
issuance of additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in
or pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.02. Denominations.
-------------
In the absence of any specification pursuant to Section 3.01 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
Section 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Debt Securities of any series shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive Officer, its
President, one of its Vice Presidents or its Treasurer, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be manual or facsimile.
Coupons shall bear the facsimile signature of the Treasurer or any Assistant
Treasurer of the Company.
26
<PAGE>
Debt Securities and Coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Debt Securities and Coupons or did not hold such offices at the date of such
Debt Securities and Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities, with appropriate
Coupons, if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities and Coupons and the Trustee in accordance with
the Company Order shall authenticate and deliver such Debt Securities and
Coupons; provided, however, that, in connection with its sale during the
-------- -------
"restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
-------- -------
Bearer Security (other than a temporary Global Note in bearer form) may be
delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
to the Euro-clear Operator or to CEDEL a certificate substantially in the form
set forth in Exhibit A to this Indenture. If all the Debt Securities of any one
series are not to be issued at one time and if a Board Resolution or
supplemental indenture relating to such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities such as interest rate, Stated Maturity, date of issuance
and date from which interest, if any, shall accrue. If any Debt Security shall
be represented by a permanent Global Note, then, for purposes of this Section
and Section 3.04, the notation of a beneficial owner's interest therein upon
original issuance of such Debt Security or upon exchange of a portion of a
temporary Global Note shall be deemed to be delivery in connection with the
original issuance of such beneficial owner's interest in such permanent Global
Note. Except as permitted by Section 3.06 or 3.07, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons for interest
then matured have been detached and cancelled.
The Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities and Coupons of such series, (i) the supplemental
indenture or the Board Resolution by or pursuant to which the form and terms of
such Debt Securities and Coupons have been approved and (ii) an Opinion of
Counsel substantially to the effect that:
27
<PAGE>
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt Securities and
Coupons conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Trustee to authenticate and deliver
such Debt Securities and Coupons;
(2) the forms and terms of such Debt Securities and Coupons have been
established in conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt Securities and
Coupons have been established in a supplemental indenture, the execution
and delivery of such supplemental indenture has been duly authorized by all
necessary corporate action of the Company, such supplemental indenture has
been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a valid and
binding obligation enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law); and
(4) the execution and delivery of such Debt Securities and Coupons
have been duly authorized by all necessary corporate action of the Company
and such Debt Securities and Coupons have been duly executed by the Company
and, assuming due authentication by the Trustee and delivery by the
Company, are valid and binding obligations enforceable against the Company
in accordance with their terms, entitled to the benefit of the Indenture,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and subject to such other exceptions as
counsel shall request and as to which the Trustee shall not reasonably
object.
The Trustee shall not be required to authenticate such Debt Securities
and Coupons if the issuance of such Debt Securities and Coupons pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Debt Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary or
28
<PAGE>
permanent or other definitive Bearer Security in global form) shall be dated as
of the date of original issuance of the first Debt Security of such series to be
issued, except as otherwise provided pursuant to Section 3.01 with respect to
the Bearer Securities of any series.
No Debt Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Debt Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.08 together with a written statement (which need not
comply with Section 1.02) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global
-------------------------------------------------------
Notes for Definitive Bearer Securities; Global Notes Representing Registered
- ----------------------------------------------------------------------------
Securities.
- ----------
(a) Pending the preparation of definitive Registered Securities of
any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination for Registered Securities of such series, substantially of the
tenor of the definitive Registered Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Registered Securities may determine,
as conclusively evidenced by their execution of such Registered Securities.
Every such temporary Registered Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Registered Securities in lieu of which they are issued. In the case of any
series issuable as Bearer Securities, such temporary Debt Securities may be in
global form, and with one or more Coupons or without Coupons, representing such
of the Outstanding Debt Securities of such series as shall be specified therein.
29
<PAGE>
Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.05 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of the
same series of authorized denominations and of a like Stated Maturity and like
terms and provisions; provided, however, that no definitive Bearer Security
-------- -------
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security (including a permanent
- -------- -------
Bearer Security in global form) shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section
3.03. Until so exchanged, the temporary Registered Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 3.01, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or CEDEL, as the case may be, for
credit to the account of the Company (in the case of sales of Bearer
Securities by the Company directly to investors) or the managing underwriter
(in the case of sales of Bearer Securities by the Company to underwriters) or
such other accounts as the Company or the managing underwriter, respectively,
may direct.
30
<PAGE>
On or after the date specified in or determined pursuant to the terms
of any temporary Global Note which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Note (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes in definitive form without
interest coupons. On or after the Exchange Date such temporary Global Note
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, at its principal office in London (or at such other
place specified outside the United States pursuant to Section 3.01) and
following such surrender, the Trustee shall (1) endorse the temporary Global
Note to reflect the reduction of its principal amount by an equal aggregate
principal amount of such Debt Security, (2) endorse the applicable permanent
Global Note, if any, to reflect the initial amount, or an increase in the amount
of Debt Securities represented thereby, (3) manually authenticate such
definitive Debt Securities (including any permanent Global Note), (4) deliver
such definitive Debt Securities to the Holder thereof or, if such definitive
Debt Security is a permanent Global Note, deliver such permanent Global Note to
the Common Depositary to be held outside the United States for the accounts of
the Euro-clear Operator or CEDEL, as the case may be, for credit to the
respective accounts at the Euro-clear operator or CEDEL, as the case may be,
designated by or on behalf of the beneficial owners of such Debt Securities
(or to such other accounts as they may direct) and (5) redeliver such temporary
Global Note to the Common Depositary, unless such temporary Global Note shall
have been cancelled in accordance with Section 3.08 hereof; provided, however,
-------- -------
that, unless otherwise specified in such temporary Global Note, upon such
presentation by the Common Depositary, such temporary Global Note shall be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by the Euro-clear Operator, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities
(including any permanent Global Note), and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL, as to the portion of such temporary
Global Note held for its account then to be exchanged for definitive Debt
Securities (including any permanent Global Note), each substantially in the form
set forth in Exhibit B to this Indenture. Each certificate substantially in the
form of Exhibit B hereto of the Euro-clear Operator or CEDEL, as the case may
be, shall be based on certificates of the account holders listed in the records
of the Euro-clear operator or CEDEL, as the case may be, as being entitled to
all or any portion of the applicable temporary Global Note. An account holder
of the Euro-clear Operator or CEDEL, as the case may be, desiring to effect the
31
<PAGE>
exchange of an interest in a temporary Global Note for an interest in definitive
Debt Securities (including any permanent Global Note) shall instruct the Euro-
clear Operator or CEDEL, as the case may be, to request such exchange on its
behalf and shall deliver to the Euro-clear Operator or CEDEL, as the case may
be, a certificate substantially in the form of Exhibit A hereto and dated no
earlier than 10 days prior to the Exchange Date. Until so exchanged, temporary
Global Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities (including any permanent Global Note) of
the same series authenticated and delivered hereunder, except as to payment of
interest, if any.
The delivery to the Trustee by the Euro-clear Operator or CEDEL of any
certificate substantially in the form of Exhibit B hereto may be relied upon by
the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee definitive Debt Securities in an aggregate principal amount equal to the
principal amount of such temporary Global Note, executed by the Company. At any
time, on or after the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the request of or on
behalf of the beneficial owner, a Debt Security represented by a temporary
Global Note or a permanent Global Note, as the case may be, may be exchanged, in
whole or from time to time in part, for definitive Debt Securities without
charge and the Trustee shall authenticate and deliver, in exchange for each
portion of such temporary Global Note or such permanent Global Note, an equal
aggregate principal amount of definitive Debt Securities of the same series of
authorized denominations and of a like Stated Maturity and with like terms and
conditions, as the portion of such temporary Global Note or such permanent
Global Note to be exchanged, which, unless the Debt Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, as
contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that definitive Bearer Securities
-------- -------
shall be delivered in exchange for a portion of the temporary Global Note or the
permanent Global Note only in compliance with the requirements of the second
preceding paragraph. On or prior to the forty-fifth day following receipt by
the Trustee of such notice with respect to a Debt Security, or, if such day is
not a Business Day, the next succeeding Business Day, the temporary Global Note
or the permanent Global Note, as the case may be, shall be surrendered by the
Common
32
<PAGE>
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Debt Securities
without charge following such surrender, upon the request of the Euro-clear
Operator or CEDEL, as the case may be, and the Trustee shall (1) endorse the
applicable temporary Global Note or the permanent Global Note to reflect the
reduction of its principal amount by the aggregate principal amount of such Debt
Security, (2) cause the terms of such Debt Security and Coupons, if any, to be
entered on a definitive Debt Security, (3) manually authenticate such definitive
Debt Security, and (4) if a Bearer Security is to be delivered, deliver such
definitive Debt Security outside the United States to the Euro-clear Operator or
CEDEL, as the case may be, for or on behalf of the beneficial owner thereof, in
exchange for a portion of such temporary Global Note or the permanent Global
Note.
Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Note or the permanent Global Note,
except that a Person receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Debt Securities in person at the
offices of the Euro-clear Operator or CEDEL. Definitive Debt Securities in
bearer form to be delivered in exchange for any portion of a temporary Global
Note or the permanent Global Note shall be delivered only outside the United
States. Notwithstanding the foregoing, in the event of redemption or
acceleration of all or any part of a temporary Global Note prior to the Exchange
Date, a permanent Global Note or definitive Bearer Securities, as the case may
be, will not be issuable in respect of such temporary Global Note or such
portion thereof, and payment thereon will instead be made as provided in such
temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary Global
Note or the permanent Global Note shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.01, interest payable on such temporary
Global Note on an Interest Payment Date for Debt Securities of such series
occurring prior to the applicable Exchange Date shall be payable to the Euro-
clear operator or CEDEL on such Interest Payment Date upon delivery by the Euro-
clear Operator or CEDEL to the Trustee of a certificate or certificates
substantially in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary
33
<PAGE>
Global Note on such Interest Payment Date and who have each delivered to the
Euro-clear Operator or CEDEL, as the case may be, a certificate substantially in
the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a temporary Global Note or the permanent
Global Note shall not bear a coupon for any interest which shall theretofore
have been duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by
the Company to the Trustee in accordance with the provisions of this Section
3.04.
With respect to Exhibits A and B to this Indenture, the Company may,
in its discretion and if required or desirable under applicable law, substitute
one or more other forms of such exhibits for such exhibits, eliminate the
requirement that any or all certificates be provided, or change the time that
any certificate may be required, provided that such substitute form or forms or
notice of elimination or change of such certification requirement have
theretofore been delivered to the Trustee with a Company Request and such form
or forms, elimination or change is reasonably acceptable to the Trustee.
(c) If the Company shall establish pursuant to Section 3.01 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 3.03 and the Company Order with respect to
such series, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially to
the following effect: "This Debt Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary, unless and until this Debt Security is exchanged in whole
or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.05,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. Depositary for such series to a nominee of such depositary or by
34
<PAGE>
a nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor U.S.
Depositary for such series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Debt Securities of such series.
If a successor U.S. Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If specified by the Company pursuant to Section 3.01 with respect to
Registered Securities of a series, the U.S.
35
<PAGE>
Depositary for such series of Registered Securities may surrender a Global Note
for such series of Debt Securities in exchange in whole or in part for
Registered Securities of such series in definitive form on such terms as are
acceptable to the Company and such depositary. Thereupon, the Company shall
execute and the Trustee shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, of any authorized denomination
as requested by such Person in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Note and the aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be cancelled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
Section 3.05. Registration, Transfer and Exchange.
-----------------------------------
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
-------- -------
the Company may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities
36
<PAGE>
of the same series of like aggregate principal amount of such denominations as
are authorized for Registered Securities of such series and of a like Stated
Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.04 and this Section 3.05, at
the option of the Holder, Registered Securities of any series may be exchanged
for other Registered Securities of the same series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 3.01, the
provisions of this Section 3.05(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.01 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that except as otherwise provided in Section 12.03, interest
- -------- -------
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and of a like Stated Maturity and with like terms and
conditions after the close of business at such office or agency on (i) any
Regular Record Date
37
<PAGE>
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be (or, if such Coupon is so surrendered with such Bearer Security, such
Coupon shall be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture. The Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Security or Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.01, in no
event may Registered Securities, including Registered Securities received in
exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange of Debt
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Debt Securities
surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by the Holder thereof or
his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.04(b) or 3.06. The Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration, transfer or
exchange of Debt Securities, other than those exchanges expressly provided in
this Indenture to be made at the Company's own expense or without
38
<PAGE>
expense or without charge to the Holders and not involving any transfer.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Debt Securities of such series selected for redemption under Section 13.03
and ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities.
-----------------------------------------------------
If (i) any mutilated Debt Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee at its Corporate Trust Office (in the
case of Registered Securities) or at its principal London office (in the case of
Bearer Securities), or (ii) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Debt Security or any
Coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any Paying Agent
harmless, and neither the Company nor the Trustee receives notice that such Debt
Security or Coupon has been acquired by a bona fide purchaser, then the Company
shall execute and upon Company Request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Debt Security or in exchange for the Coupon Security to which such
mutilated, destroyed, lost or stolen Coupon appertained, a new Debt Security of
the same series of like Stated Maturity and with like terms and conditions and
like principal amount, bearing a number not contemporaneously Outstanding, and,
in the case of a Coupon Security, with such Coupons attached thereto that
neither gain nor loss in interest shall result from such exchange or
substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or Coupon in accordance with its terms; provided, however,
-------- -------
that principal of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 12.03, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01 or except as otherwise provided in
this Section 3.06, any
39
<PAGE>
interest on Bearer Securities shall be payable only upon presentation and
surrender of the Coupons appertaining thereto.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or coupon of any series issued pursuant to
this Section shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security or
Coupon shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Debt Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 3.01 with respect to the Debt
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.01 or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if provided pursuant to
Section 3.01, by wire transfer to an account designated by the Registered
Holder.
(b) Interest on any Coupon Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Holder of the Coupon which has matured on such Interest Payment Date upon
surrender of such Coupon on such Interest Payment Date at the principal London
office of the Trustee or at such other Place of Payment outside the United
States specified pursuant to Section 3.01.
40
<PAGE>
Interest on any Bearer Security (other than a Coupon Security) which
is payable and is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Holder of the Bearer Security upon presentation of
such Bearer Security and notation thereon on such Interest Payment Date at the
principal London office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 3.01.
Unless otherwise specified pursuant to Section 3.01, at the direction
of the Holder of any Bearer Security or Coupon payable in Dollars, payment on
such Bearer Security or Coupon will be made by check drawn on a bank in The City
of New York or, if agreeable to the Trustee, by wire transfer to a Dollar
account maintained by such Holder outside the United States. If such payment at
the offices of all Paying Agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section 3.01, at
the direction of the Holder of any Bearer Security or Coupon payable in a
Foreign Currency, payment on such Bearer Security or Coupon will be made by a
check drawn on a bank outside the United States or by wire transfer to an
appropriate account maintained by such Holder outside the United States. Except
as provided in this paragraph, no payment on any Bearer Security or Coupon will
be made by mail to an address in the United States or by wire transfer to an
account in the United States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Registered Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money in the Currency or Currency unit
41
<PAGE>
in which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Sections 3.01 or 3.10) equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which date
shall be not more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holders of such Registered Securities
at their addresses as they appear in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 1.05
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt
42
<PAGE>
Security shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Debt Security.
In the case of any Registered Security of any series that is
convertible, which Registered Security is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Registered Security (or one or more predecessor
Registered Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Registered Security which is converted,
interest whose Stated Maturity is after the date of conversion of such
Registered Security shall not be payable.
Section 3.08. Cancellation.
------------
Unless otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange, credit against any sinking fund or conversion
and all Coupons surrendered for payment or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Registered
Securities and matured Coupons so delivered shall be promptly cancelled by the
Trustee and shall be destroyed by the Trustee in accordance with its customary
practice. Upon Company Request, the Trustee shall deliver to the companies a
certificate of destruction. All Bearer Securities and unmatured Coupons so
delivered shall be held by the Trustee and, upon instruction by the Company
Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in exchange for
Bearer Securities of the same series and of like Stated Maturity and with like
terms and conditions pursuant to Section 3.05 or in replacement of mutilated,
lost, stolen or destroyed Bearer Securities of the same series and of like
Stated Maturity and with like terms and conditions or the related Coupons
pursuant to Section 3.06. All Bearer Securities and unmatured Coupons held by
the Trustee pending such cancellation or reissuance shall be deemed to be
delivered for cancellation for all purposes of this Indenture and the Debt
Securities and Coupons. The Company may at any time deliver to the Trustee for
cancellation any Debt Securities or Coupons previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Debt Securities previously
43
<PAGE>
authenticated hereunder which the Company has not issued, and all Debt
Securities or Coupons so delivered shall be promptly cancelled by the Trustee.
No Debt Securities or Coupons shall be authenticated in lieu of or in exchange
for any Debt Securities or Coupons cancelled as provided in this Section, except
as expressly permitted by this Indenture. The acquisition of any Debt
Securities or Coupons by the Company shall not operate as a redemption or
satisfaction of the indebtedness represented thereby unless and until such Debt
Securities or Coupons are surrendered to the Trustee for cancellation. In the
case of any temporary Global Note which shall be destroyed if the entire
aggregate principal amount of the Debt Securities represented thereby has been
exchanged, the certificate of destruction shall state that all certificates
required pursuant to Section 3.04 hereof and substantially in the form of
Exhibit B hereto, to be given by the Euro-clear Operator or CEDEL, have been
duly presented to the Trustee by the Euro-clear Operator or CEDEL, as the case
may be. Permanent Global Notes shall not be destroyed until exchanged in full
for definitive Debt Securities or until payment thereon is made in full.
Section 3.09. Computation of Interest.
-----------------------
Except as otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.10. Currency of Payments in Respect of Debt Securities.
--------------------------------------------------
(a) Except as otherwise specified pursuant to Section 3.01 for
Bearer Securities of any series, payment of the principal of (and premium, if
any) and interest on Bearer Securities of such series denominated in any
Currency will be made in such Currency.
(b) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (c) below or the Holders of
which have not made the election provided for in paragraph (c) below, except as
provided in paragraph (e) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.01 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
44
<PAGE>
Trustee a written election, to be in form and substance satisfactory to the
Trustee, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (but any such change must be made
not later than the close of business on the Election Date immediately preceding
the next payment date to be effective for the payment to be made on such payment
date and no such change or election may be made with respect to payments to be
made on any Registered Security of such series with respect to which an Event of
Default has occurred or notice of redemption has been given by the Company
pursuant to Article Thirteen). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee by the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in paragraph (b) of
this Section 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.01, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice specifying, in the Currency in which each series of
the Registered Securities is payable, the respective aggregate amounts of
principal of (and premium, if any) and any interest on the Registered Securities
to be paid on such payment date, specifying the amounts so payable in respect of
the Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (c) above. If the election referred to in paragraph (c)
above has been provided for pursuant to Section 3.01 and if at least one Holder
has made such election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee an Exchange Rate Officer's
Certificate in respect of the Currency payments to be made on such payment date.
The Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (c) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the "Valuation Date") immediately preceding
each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other Currency unit in which any of the Debt Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign
45
<PAGE>
Currency, the ECU or such other Currency unit occurring after the last date on
which such Foreign Currency, the ECU or such other Currency unit was used (the
"Conversion Date"), the Dollar shall be the Currency of payment for use on each
such payment date. The Dollar amount to be paid by the Company to the Trustee
and by the Trustee or any Paying Agent to the Holders of such Debt Securities
with respect to such payment date shall be the Dollar Equivalent of the Foreign
Currency or, in the case of a Currency unit, the Dollar Equivalent of the
Currency Unit, in each case as determined by the Currency Determination Agent,
if any, or, if there shall not be a Currency Determination Agent, then by the
Trustee, in the manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (c) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent, if any, or, if there shall not
be a Currency Determination Agent, then by the Trustee, and shall be obtained
for each subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Currency Determination Agent, if any, or, if there shall not be a
Currency Determination Agent, then by the Trustee, and subject to the provisions
of paragraph (i) below, shall be the sum of each amount obtained by converting
the Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for such Component Currency on the Valuation Date with respect to
each payment.
(i) For purposes of this Section 3.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant Currency unit, including, but not limited to,
the ECU, on the
46
<PAGE>
Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied
in the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single Currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single Currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and such
single Currency shall thereafter be a Component Currency. If after the
Conversion Date any Component Currency shall be divided into two or more
Currencies, the Specified Amount of such Component Currency shall be
replaced by amounts of such two or more currencies with appropriate Dollar
equivalents at the Market Exchange Rate on the date of such replacement
equal to the Dollar equivalent of the Specified Amount of such former
Component Currency at the Market Exchange Rate on such date, and such
amounts shall thereafter be Specified Amounts and such Currencies shall
thereafter be Component currencies. If after the Conversion Date of the
relevant Currency unit, including but not limited to, the ECU, a Conversion
Event (other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of such
Currency unit, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect to any payment
date, and with respect to the Maturity shall mean the record date (if
within 16 or fewer days prior to the Maturity) immediately preceding the
Maturity, and with respect to any series of Debt Securities whose record
date immediately preceding the Maturity is more than 16 days prior to the
Maturity or any series of Debt Securities for which no record dates are
provided with respect to interest payments, shall mean the date which is 16
days prior to the Maturity.
(j) All decisions and determinations of the Trustee or the Currency
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Debt Securities denominated or payable in the relevant
Currency. In the event of a Conversion
47
<PAGE>
Event with respect to a Foreign Currency, the Company, after learning thereof,
will immediately give written notice thereof to the, Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section 1.05 to
the Holders) specifying the Conversion Date. In the event of a Conversion Event
with respect to the ECU or any other Currency unit in which Debt Securities are
denominated or payable, the Company, after learning thereof, will immediately
give notice thereof to the Trustee (and the Trustee will promptly thereafter
give written notice in the manner provided in Section 1.05 to the Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above, the
Company, after learning thereof, will similarly give written notice to the
Trustee. The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Currency
Determination Agent, if any, and shall not otherwise have any duty or obligation
to determine such information independently.
(k) For purposes of any provision of the Indenture where the Holders
of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Debt Securities denominated in a Foreign Currency will be the amount in Dollars
based upon the Market Exchange Rate for Debt Securities of such series, as of
the date for determining whether the Holders entitled to perform such Act have
performed it, or as of the date of such decision or determination by the
Trustee, as the case may be.
Section 3.11. Judgments.
---------
If for the purpose of obtaining a judgment in any court with respect
to any obligation of the Company hereunder or under any Debt Security, it shall
become necessary to convert into any other Currency any amount in the Currency
due hereunder or under such Debt Security, then such conversion shall be made at
the Market Exchange Rate as in effect on the date the Company shall make payment
to any Person in satisfaction of such judgment. If pursuant to any such
judgment, conversion shall be made on a date other than the date payment is made
and there shall occur a change between such Market Exchange Rate and the Market
Exchange Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is equal to the amount in such other
48
<PAGE>
Currency which, when converted at the Market Exchange Rate as in effect on the
date of payment or distribution, is the amount then due hereunder or under such
Debt Security. Any amount due from the Company under this Section 3.11 shall be
due as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Debt
Security. In no event, however, shall the Company be required to pay more in
the Currency or Currency unit due hereunder or under such Debt Security at the
Market Exchange Rate as in effect when payment is made than the amount of
Currency stated to be due hereunder or under such Debt Security so that in any
event the Company's obligations hereunder or under such Debt Security will be
effectively maintained as obligations in such Currency, and the Company shall be
entitled to withhold (or be reimbursed for, as the case may be) any excess of
the amount actually realized upon any such conversion over the amount due and
payable on the date of payment or distribution.
Section 3.12. Exchange Upon Default.
---------------------
If default is made in the payments referred to in Section 12.01, the
Company hereby undertakes that upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof the Company will issue and the Trustee will authenticate
and deliver to the bearer of such permanent Global Note duly executed and
authenticated definitive Debt Securities with the same issue date and maturity
date as set out in such permanent Global Note.
Section 3.13. CUSIP Numbers.
-------------
The Company in issuing the Debt Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
--------
may state that no representation is made as to the correctness of such numbers
either as printed on the Debt Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debt Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
49
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange or conversion of such Debt
Securities herein expressly provided for or expressly provided in the terms of
the Debt Securities of such series pursuant to Section 3.01, and rights to
receive payments of principal (and premium, if any) and interest on such Debt
Securities) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such series
theretofore authenticated and delivered (other than (i) Debt Securities and
Coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06, (ii) Coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not
required or has been waived under Section 3.05, (iii) Coupons appertaining
to Bearer Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
13.06, and (iv) Debt Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 12.04) have been
delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice by the
50
<PAGE>
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) of this subclause (B),
has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in which
such Debt Securities are denominated (except as otherwise provided pursuant
to Section 3.01 or 3.10) sufficient to pay and discharge the entire
indebtedness on such Debt Securities for principal (and premium, if any)
and interest to the date of such deposit (in the case of Debt Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be, but excluding, however, the amount of any moneys
for the payment of principal (and premium, if any) or interest (i)
theretofore deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust
as provided in Section 12.04, or (2) paid to any State pursuant to its
unclaimed property or similar laws; provided, however, in the event a
-------- -------
petition for relief under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy,
insolvency or other similar law, is filed with respect to the Company
within 91 days after the deposit and the Trustee is required to return the
deposited money to the Company, the obligations of the Company under this
Indenture with respect to such Debt Securities shall not be deemed
terminated or discharged;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.01, and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
12.04, shall survive. If, after the deposit referred to in Section 4.01 has
been made, (x) the Holder of a Debt Security is, entitled to, and does, elect
pursuant to Section 3.10(C), to receive payment in a Currency other than that in
which the deposit pursuant to Section 4.01 was made, or (y) if a Conversion
51
<PAGE>
Event occurs with respect to the Currency in which the deposit was made or
elected to be received by the Holder pursuant to Section 3.10(c), then the
indebtedness represented by such Debt Security shall be fully discharged to the
extent that the deposit made with respect to such Debt Security shall be
converted into the Currency in which such payment is made.
Section 4.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 12.04, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
Coupons, if any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee. All money deposited with the Trustee pursuant to Section 4.01
shall not be subject to Article Sixteen.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
-----------------
"Event of Default" wherever used herein with respect to Debt
Securities of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article Sixteen or be voluntary or involuntary or be effected by
operation of law, pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Debt Security or
any payment with respect to the Coupons, if any, of such series when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (and premium, if any,
on) any Debt Security of such series at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which expressly has been included
in this Indenture solely for the benefit of Debt Securities of a
52
<PAGE>
series other than such series), and continuance of such default or breach
for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(4) default in the performance of any term or provision of any
Indebtedness of the Company (other than Debt Securities of such series)
that results in such Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable if the amount of such Indebtedness which shall have become or shall
have been declared due and payable as a result of such default is in excess
of $10,000,000, and such acceleration shall not have been rescinded or
annulled, or such Indebtedness shall not have been discharged, within a
period of 30 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of such series, a written notice specifying such default or
defaults and stating that such notice is a "Notice of Default" hereunder;
provided, however, that, if prior to a declaration of acceleration of the
-------- -------
Maturity of the Outstanding Debt Securities of that series pursuant to
Section 5.02 or the entry of a judgment in favor of the Trustee in a suit
pursuant to Section 5.03, such default under such Indebtedness shall be
remedied or cured by the Company or waived by the holders of such
Indebtedness, then the Event of Default hereunder by reason thereof shall
be deemed likewise to have been thereupon remedied, cured or waived without
further action on the part of either the Trustee or any Holder, and
provided further, that, subject to the provisions of Sections 6.01 and
-------- -------
6.02, the Trustee shall not be deemed to have knowledge of such default
unless either (A) a Responsible Officer in the corporate trust department
of the Trustee shall have actual knowledge of such default or (B) the
Trustee shall have received written notice thereof from the Company, from
any Holder, from the holder of any such Indebtedness or from the trustee
under any such mortgage, indenture or other instrument; or
(5) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal or State bankruptcy, insolvency or other
53
<PAGE>
similar law, or a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of an order for relief in respect of the Company in an involuntary case
under any such law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of
the Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of its creditors, or the admission by it
in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Debt Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. Upon
payment of such amount in the Currency in which such Debt Securities are
denominated (except as otherwise provided pursuant to Sections 3.01 or 3.10),
all obligations of the Company in respect of the payment of principal of the
Debt Securities of such series shall terminate.
54
<PAGE>
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Debt Securities are denominated (except as otherwise
provided pursuant to Section 3.01 or 3.10) sufficient to pay
(A) all overdue installments of interest on all Debt Securities or
all overdue payments with respect to any Coupons of such series,
(B) the principal of (and premium, if any, on) any Debt Securities of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest on each Debt Security of
such series or upon overdue payments on any Coupons of such
series at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; provided, however, that all
-------- -------
sums payable under this clause (D) shall be paid in Dollars;
and
(2) All Events of Default with respect to Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of
such series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
55
<PAGE>
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Debt Security or any payment with respect to any Coupons when such
interest or payment becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of principal of (or premium, if
any, on) any Debt Security at the Maturity thereof,
The Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee,, its agents and counsel,
other than any such compensation, expenses, disbursements or advances which are
attributable to the Trustee's negligence or bad faith.
If the Company fails to pay such amount forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities and
Coupons of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
56
<PAGE>
Section 5.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and coupons, if any, of a particular
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
if the Debt Securities of such series are Discount Securities, such portion
of the principal amount as may be due and payable with respect to such
series pursuant to a declaration in accordance with Section 5.02) (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities and Coupons of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, other
than such compensation, expenses, disbursements and advances which are
attributable to the Trustee's negligence or bad faith) and of the Holders
of such Debt Securities and Coupons allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07, other than any such compensation,
expenses, disbursements or advances which are attributable to the Trustee's
negligence or bad faith.
57
<PAGE>
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
-----------------------------------------------------
Securities or Coupons.
- ---------------------
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel other than any such
compensation, expenses, disbursements and advances which are attributable to the
Trustee's negligence or bad faith, be for the ratable benefit of the Holders of
the Debt Securities or Coupons in respect of which such judgment has been
recovered.
Section 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or Coupons of any
series in respect of which money has been collected and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07;
SECOND: Subject to Article Sixteen, to the payment of the amounts then
due and unpaid for principal of (and premium, if any) and interest on the
Debt Securities or Coupons of such series, in respect of which or for the
benefit of which such money has been collected ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Debt Securities or coupons for principal (and premium, if any) and
interest, respectively; and
58
<PAGE>
THIRD: Subject to Article Sixteen, the balance, if any, to the Person
or Persons entitled thereto.
In the case of Registered Securities, the Trustee may fix a record
date for any payment to Holders pursuant to this Section 5.06. At least 15 days
before such record date the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and the amount to be paid.
Section 5.07. Limitation on Suits.
-------------------
No Holder of any Debt Security or Coupon of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders. For the protection and enforcement of the provisions of this Section
59
<PAGE>
5.07, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
Section 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or of any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.07) interest on such Debt Security or Coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
Coupon (or, in the case of redemption, on the Redemption Date) and to convert
any Debt Security that is convertible and to institute suit for the enforcement
of any such payment and interest thereon and of such right to convert, and such
right shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every
60
<PAGE>
right and remedy given by this Indenture or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders.
------------------
The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series, provided, that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 6.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in
any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which pursuant to
Article Eleven cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
61
<PAGE>
Section 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Debt
Security or any coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant; in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder or group of Holders holding in the aggregate more
than 10% in principal amount of the Outstanding Debt Securities of any series,
or to any suit instituted by any Holder of a Debt Security or Coupon for the
enforcement of the payment of the principal of (or premium, if any) or interest
on such Debt Security or the payment of any Coupon on or after the respective
Stated Maturity or Maturities expressed in such Debt Security or Coupon (or, in
the case of redemption, on or after the Redemption Date) or for the enforcement
of the right to convert any Debt Security of any series as may be provided in
accordance with Section 3.01.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall
62
<PAGE>
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt Securities of
any series has occurred and is continuing, the Trustee shall, with respect to
the Debt Securities of such series, exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Debt Securities of
any series in good faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding Debt Securities of such
series relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; and
(4) the Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities or coupons, if any, of
63
<PAGE>
any series, the Trustee shall give notice to all Holders of Debt Securities and
Coupons of such series of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
-------- -------
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Debt Security or Coupon of such series or in the payment of any
sinking fund installment with respect to Debt Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Debt Securities
and of Coupons of such series; and provided, further, that in the case of any
-------- -------
default of the character specified in Section 5.01(3) with respect to Debt
Securities of such series, no such notice to Holders shall be given until at
least 45 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of such
series.
Notice given pursuant to this Section 6.02 shall be transmitted by
mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have within
two years preceding such transmission, filed their names and addresses with
the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture.
Section 6.03. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
64
<PAGE>
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of any series pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, unless
requested in writing to do so by the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series; provided, however,
-------- -------
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
65
<PAGE>
Section 6.04. Not Responsible for Recitals or Issuance of Debt
------------------------------------------------
Securities.
- ----------
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities or Coupons, if any, of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Debt Securities or the proceeds thereof.
Section 6.05. May Hold Debt Securities.
------------------------
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities or Coupons, and, subject to Sections 6.08
and 6.13, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in Trust.
-------------------
Subject to the provisions of the last paragraph of Section 12.04, all
moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received. Money in any
Currency held by the Trustee or any Paying Agent in trust hereunder need not be
segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
Section 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time such compensation in
Dollars as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation
and the
66
<PAGE>
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it harmless
against, any loss, liability, incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Debt Securities
and Coupons, if any, upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of amounts due on
the Debt Securities and Coupons.
The obligations of the Company under this Section 6.07 to compensate
and indemnify the Trustee for expenses, disbursements and advances shall survive
the satisfaction and discharge of this Indenture and the resignation or removal
of the Trustee.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(6) or Section 5.01(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 6.08. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire any conflicting interest as
defined in the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
The following indenture shall be deemed to be described herein for purposes of
clause (1) of the first proviso contained in Section 310(b) of the Trust
Indenture Act: the Indenture dated as of June 4, 1987 between the Company and
Bankers Trust Company pursuant to which the Company's 6 3/4% Convertible
Subordinated Debentures were issued.
67
<PAGE>
Section 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $75,000,000, subject to supervision or examination by Federal, State
or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 with
respect to the Debt Securities of any series after written request
therefor by the Company or
68
<PAGE>
by any Holder who has been a bona fide Holder of a Debt Security of
such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09
with respect to the Debt Securities of any series and shall fail to
resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee with respect to all Debt Securities, or (ii) subject to
Section 5.14, any Holder who has been a bona fide Holder of a Debt Security of
any series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee for the Debt
Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Debt Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Debt Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Debt Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Debt
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Debt Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Debt Securities of any series shall have been so
appointed by the Company or the Holders of such series and accepted appointment
in the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months may, subject to
69
<PAGE>
Section 5.14, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.05 to the
Holders of Debt Securities of such series. Each notice shall include the name
of the successor Trustee with respect to the Debt Securities of such series and
the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, each such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee, but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3)
70
<PAGE>
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in any such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any other trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to or received by or any act or failure to act on the part
of any other Trustee hereunder and the retiring Trustee shall have no liability
for any acts or omissions of any successor Trustee; and upon the execution and
delivery of any such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
- --------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Debt Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation
71
<PAGE>
to such authenticating Trustee may adopt such authentication and deliver the
Debt Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Debt Securities. In case any Debt
Securities shall not have been authenticated by such predecessor Trustee, any
such successor Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
Section 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any obligor upon the Debt Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent.
-----------------------------------
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities
of each such series authenticated by such Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in
this Indenture to the authentication and delivery of Debt Securities of any
series by the Trustee for such series or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee for such series by an Authenticating Agent for
such series and a Certificate of Authentication executed on behalf of such
Trustee by such Authenticating Agent, except that only the Trustee may
authenticate Debt Securities upon original issuance and pursuant to Section 3.06
hereof. Such Authenticating Agent shall at all times be a corporation organized
and doing business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $10,000,000 and subject to supervision
or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for purposes of
this Section, the combined capital and surplus of such Authenticating Agent
shall
72
<PAGE>
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more or all series of Debt Securities, the Trustee for such series shall
upon Company Request appoint a successor Authenticating Agent, and the Company
shall provide notice of such appointment to all Holders of Debt Securities of
such series in the manner and to the extent provided in Section 1.05. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. The Trustee for the Debt Securities of such series agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be
reimbursed for such payment, subject to the provisions of Section 6.07. The
Authenticating Agent for the Debt Securities of any series shall have no
responsibility or liability for any action taken by it as such in good faith and
without negligence at the direction of the Trustee for such series.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alterative
certificate of authentication in the following form:
73
<PAGE>
This is one of the series of Debt Securities referred to in the within
mentioned Indenture.
BANKERS TRUST COMPANY
As Trustee
Dated: By:
----------------------------
As Authenticating Agent
By:
----------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee and Addresses of Holders.
---------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.01 if the Registered Securities of such series do not bear
interest), a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Registered Holders as of the date 15 days next
preceding each such Interest Payment Date (or such semi-annual dates, as the
case may be); and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
- -------- -------
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the
74
<PAGE>
Holders of Bearer Securities of all series; provided, however, that the Company
-------- -------
shall have no obligation to investigate any matter relating to any Holders of
Bearer Securities of any series.
Section 7.02. Preservation of Information; Communication to Holders.
-----------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.01
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.03(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the Holders obtained from such
information since the delivery of the next previous list, if any, destroy any
list delivered to itself as Trustee which was compiled from information received
by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.03(c)(2).
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders
of Debt Securities of such series or of all Debt Securities, as the case
may be, whose names and addresses appear in the information preserved at
the time by
75
<PAGE>
the Trustee in accordance with Section 7.02(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other communication,
specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written inquest of such applicants,
mail to the Holders of Debt Securities of such series or all Holders, as the
case may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.02(a), a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Debt Securities of such series or all Holders, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Debt Securities or Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders in accordance
with Section 7.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
of any material pursuant to a request made under Section 7.02(b).
Section 7.03. Reports by Trustee.
------------------
(a) Within 60 days after January 15 of each year, commencing January
15, 1995, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as
76
<PAGE>
Trustee, in the manner hereinafter provided in this Section 7.03, a brief report
as of such date with respect to any of the following events which may have
occurred within the previous 12 months (but if no such event has occurred within
such period no report need be transmitted):
(1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.08(c) of this
Indenture;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Debt Securities of such series, on any property or
funds held or collected by it as Trustee, except that the Trustee shall not
be required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Outstanding Debt Securities of such series on the date of such
report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or any other obligor on the Debt
Securities of such series) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Debt Securities of such series, except action in
respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses
77
<PAGE>
appear in the information preserved at the time by the Trustee in accordance
with Section 7.02 (a)) for which it acts as the Trustee, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to subsection (a) of this Section (or if no such
report has yet been so transmitted, signing the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Debt Securities of such series, on property or
funds held or collected by it as Trustee, and which it has not previously
reported pursuant to this Subsection, except that the Trustee for each series
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Debt Securities of such series Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section 7.03 shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the Security
Register;
(2) to such Holders of Bearer Securities of any series as have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection (b) of this
Section 7.03, to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the Trustee
in accordance with Section 7.02(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
------------------
The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information,
78
<PAGE>
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended; or, if the Company is not required to file information
documents or reports pursuant to either of said Sections, then it will file
with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be required from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner and to
the extent provided in Section 7.03, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders.
---------------
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent or
proxy duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such
79
<PAGE>
instrument or instruments. Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the
Outstanding Debt Securities of any series may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders.
Section 8.02. Proof of Ownership; Proof of Execution of Instruments
-----------------------------------------------------
by Holder.
- ---------
The ownership of Registered Securities of any series shall be proved
by the Security Register for such series or by a certificate of the Security
Registrar for such series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state that on the date
thereof a Bearer Security bearing a specified identifying number or other mark
was deposited with or exhibited to the Person executing such certificate by the
Person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the Person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced to the Trustee, (2) such Bearer Security
shall be produced by some other Person to the Trustee, (3) such Bearer Security
shall have been registered on the Security Register, if, pursuant to Section
3.01, such Bearer Security can be so registered, or (4) such Bearer Security
shall have been cancelled or paid.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of
the execution of a writing appointing an agent or proxy and of the execution of
any instrument by a Holder or his agent or proxy shall be sufficient and
conclusive in favor of the Trustee and the Company if made in the following
manner:
The fact and date of the execution by any such Person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgements of deeds, that the Person executing
such instrument acknowledged to him the execution thereof, or by an affidavit of
a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation
80
<PAGE>
or association or a member of a partnership on behalf of such corporation,
association or partnership, as the case may be, or by any other Person acting in
a representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.06.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
Section 8.03. Persons Deemed Owners.
---------------------
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of the
principal of (and premium, if any) and (subject to Section 3.07) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary. All payments made to any Holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Debt Security or Coupon.
Section 8.04. Revocation of Consents; Future Holders Bound.
--------------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.02,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt
81
<PAGE>
security shall be conclusive and binding upon such Holder and, subject to the
provisions of Section 5.08, upon all future Holders of such Debt Security and
all past, present and future Holders of Coupons, if any, appertaining thereto
and of any Debt Securities and Coupons issued on transfer or in lieu thereof or
in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Debt Security or Coupons or such
other Debt Securities or Coupons.
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.
--------------------
A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Article Nine for any of
the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of
the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Outstanding Debt Securities of any one or more or all series, as the case
may be, under any other provision of this Indenture or under applicable
law.
Section 9.02. Call of Meetings by Trustee.
---------------------------
The Trustee for any series may at any time call a meeting of Holders
of such series to take any action specified in Section 9.01, to be held at such
time or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided
82
<PAGE>
in Section 1.05. Such notice shall be given not less than 20 days nor more than
90 days prior to the date fixed for the meeting.
Section 9.03. Call of Meetings by Company or Holders.
--------------------------------------
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Debt Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 9.01, by giving notice thereof as provided in Section
9.02.
Section 9.04. Qualifications for Voting.
-------------------------
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
Section 9.05. Regulations.
-----------
Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.03, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a
83
<PAGE>
permanent secretary of the meeting shall be elected by a majority vote of the
meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
-------- -------
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing duly designating
him as the person to vote on behalf of Holders of Debt Securities of such
series. Any meeting of Holders with respect to which a meeting was duly called
pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to
time by a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
Section 9.06. Voting.
------
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be taken
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
9.02. The record shall show the serial numbers of the Debt Securities voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
84
<PAGE>
Section 9.07. No Delay of Rights by Meeting.
-----------------------------
Nothing contained in this Article Nine shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Debt Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, etc., Only on Terms.
--------------------------------------------
Subject to the provisions of Section 10.02, nothing contained in this
Indenture or in any of the Debt Securities or Coupons shall prevent any
consolidation or merger of the Company with or into any other corporation or
corporations (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale or conveyance of all or
substantially all the property of the Company to any other corporation (whether
or not affiliated with the Company) authorized to acquire and operate the same;
provided, however, and the Company hereby covenants and agrees; that upon any
- -------- -------
such consolidation, merger, sale or conveyance of or by the Company, other than
a consolidation or merger in which the Company is the continuing corporation,
the due and punctual payment of the principal of and premium, if any, and
interest on all of the Debt Securities and Coupons, according to their tenor,
and the due and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed by the Company, shall be
expressly assumed, by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee by the corporation (if other
than the Company) formed by such consolidation, or into which the Company
shall have been merged, or by the corporation which shall have acquired such
property.
Section 10.02. Successor Corporation Substituted.
---------------------------------
In case of any consolidation, merger, sale or conveyance of or by the
Company referred to in Section 10.01 and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and premium, if any, and interest on all of the Debt Securities and
Coupons and the due and punctual performance of
85
<PAGE>
all of the covenants and conditions of this Indenture to be performed by the
Company, such successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and in the event of any such sale or conveyance, the Company (which
term shall for this purpose mean the corporation named as the "Company" in the
first paragraph of this Indenture or any successor corporation which shall
theretofore become such in the manner described in Section 10.01) shall be
discharged from all obligation and covenants under this Indenture and the Debt
Securities and Coupons and may be dissolved and liquidated. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of Sun Company, Inc. any or all of the Debt Securities and
Coupons issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debt Securities and Coupons which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debt Securities and Coupons which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Securities of any series so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Debt Securities
and Coupons of such series theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Debt Securities and Coupons
had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities and Coupons thereafter to be issued as may be appropriate.
Section 10.03. Opinion of Counsel to be Given Trustee.
--------------------------------------
The Trustee, subject to Section 6.01 and 6.03, may receive an Opinion
of Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance and any such assumption complies with the provisions of this Article.
86
<PAGE>
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Debt Securities and the Coupons, if any,
appertaining thereto (and if such covenants are to be for the benefit of
less than all series, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any right
or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such
Events of Default are expressly being included solely to be applicable to
such series); or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Debt
Securities of any series in bearer form, registrable or not registrable,
and with or without Coupons, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations
or to permit the issuance of Debt Securities of any series in
uncertificated form, provided that any such action shall not adversely
--------
affect the interests of the Holders of Debt Securities of any series or any
related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Outstanding Debt Security or Coupon of any series created
prior to the execution of such supplemental indenture which is entitled
87
<PAGE>
to the benefit of such provision and as to which such supplemental
indenture would apply; or
(6) to secure the Debt Securities; or
(7) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four or Fifteen,
provided that any such action shall not adversely affect the interests of
--------
the Holders of Debt Securities of such series or any other series of Debt
Securities or any related Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities and Coupons, if
any, of any series as permitted by Sections 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of Debt
Securities and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(10) to make provision with respect to the conversion rights of
Holders of Debt Securities of any series pursuant to the requirements of
Section 17.04, unless otherwise provided pursuant to Section 3.01; or
(11) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided such other provisions
--------
shall not adversely affect the interests of the Holders of Outstanding Debt
Securities or Coupons, if any, of any series created prior to the execution
of such supplemental indenture in any material respect.
Section 11.02. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any
88
<PAGE>
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture of such Debt Securities; provided, however, that no such
-------- -------
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security of each Outstanding Debt Security of each such series
affected thereby,
(1) change the Stated Maturity of the principal of, or installment of
interest, if any, on, any Debt Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any
payment to be made with respect to any Coupon, or change the Currency or
currencies in which the principal of (and premium, if any) or interest on
such Debt Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.02, or adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone the date
fixed for, any payment under any sinking fund or analogous provisions for
any Debt Security, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or limit the
obligation of the Company to maintain a paying agency outside the United
States for payment on Bearer Securities as provided in Section 12.03, or
adversely affect the right to convert any Debt Security into shares of
Equity Securities of the Company as may be provided pursuant to Section
3.01; or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture;
or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 12.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security of each
series affected thereby; provided, however, that this clause shall not be
-------- -------
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section
89
<PAGE>
12.07, or the deletion of this proviso, in accordance with the requirements
of Sections 6.11 and 11.01(7); or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Debt Securities in a manner adverse to the Holders.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities and Coupons, if any, of any other
series.
Section 11.03. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which adversely affects
the Trustee's own rights, duties or immunities under this Indenture or otherwise
in a material way.
Section 11.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 11.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
90
<PAGE>
Section 11.06. Reference in Debt Securities to Supplemental
--------------------------------------------
Indentures.
- ----------
Debt Securities and Coupons, if any, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities and Coupons
of any series so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities and Coupons of such series.
Section 11.07. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the appropriate
Trustee of any supplemental indenture pursuant to Section 11.02, the Company
shall transmit, in the manner and to the extent provided in Section 1.05, to all
Holders of any series of the Debt Securities affected thereby, a notice setting
forth in general terms the substance of such supplemental indenture.
ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Debt Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.06, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.01, the interest, if any, due in respect of any temporary Global
Note or permanent Global Note, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Debt Security,
shall be payable only upon presentation of such Debt
91
<PAGE>
Security to the Trustee for notation thereon of the payment of such interest.
Section 12.02. Officer's Certificate as to Default.
-----------------------------------
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company (which on the
date hereof is the calendar year) ending after the date hereof, a certificate of
the principal executive officer, principal financial officer or principal
accounting officer of the Company stating whether or not to the best knowledge
of the signer thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this Article, and,
if the Company shall be in default, specifying all such defaults and the nature
thereof of which such signer may have knowledge.
Section 12.03. Maintenance of Office or Agency.
-------------------------------
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange, where Debt Securities of that series
that are convertible may be surrendered for conversion, if applicable, and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and this Indenture may be served. If Debt Securities of a series
are issuable as Bearer Securities, the Company will maintain (A) in the Borough
of Manhattan, The City and State of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange, where Debt Securities of that series that are
convertible may be surrendered for conversion, where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served and where Bearer Securities of that series and related
Coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Debt
Securities of that series and related Coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Securities
of that series, if so provided pursuant to Section 3.01); provided, however,
-------- -------
that if the Debt Securities of that series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or
any other stock exchange located
92
<PAGE>
outside the United States and such stock exchange shall so require, the Company
will maintain a Paying Agent for the Debt Securities of that series in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange, where Debt Securities of that series that are
convertible may be surrendered for conversion, and where notices and demands to
or upon the Company in respect of the Debt Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust office of the Trustee (in the case of Registered Securities) and
at the place specified for the purpose pursuant to Section 3.01 (in the case of
Bearer Securities), and the Company hereby appoints the Trustee as its agent to
receive all presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however,
-------- -------
that, if the Debt Securities of a series are denominated and payable in Dollars,
payment of principal of and any premium and interest on any Bearer Security
(including any additional amounts payable on Securities of such series, if so
provided pursuant to Section 3.01) shall be made at the office of the Company's
Paying Agent in the Borough of Manhattan, The City and State of New York, if
(but only if) payment in Dollars of the full amount of such principal, premium
interest or additional amounts, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for
93
<PAGE>
such purposes (in or outside of such Place of Payment), and may from time to
time rescind any such designations; provided, however, that no such designation
-------- -------
or rescission shall in any manner relieve the Company of its obligations
described in the preceding paragraph. The Company will give prompt written
notice to the Trustee of any such additional designation or rescission of
designation and any change in the location of any such different or additional
office or agency.
Section 12.04. Money for Debt Securities; Payments to Be Held in
-------------------------------------------------
Trust.
- -----
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities and Coupons, if any, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Debt Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities and Coupons, it will, by or on each due date of
the principal (and premium, if any) or interest on any Debt Securities of such
series, deposit with any such Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless any such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series) in the making of any
payment of principal of (and premium, if any) or interest on the Debt
Securities of such series; and
94
<PAGE>
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Debt Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company upon Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Debt
Security or Coupon shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
-------- -------
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be transmitted in the manner and to the
extent provided by Section 1.05 (except that such notice need only be given
once), notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
notification, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 12.05. [Intentionally Omitted]
Section 12.06. Purchase of Debt Securities by Company.
--------------------------------------
If the Debt Securities of a series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not purchase any Debt Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
95
<PAGE>
Section 12.07. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.01 and 10.02 (and, if so
specified pursuant to Section 3.01, any other covenant not set forth herein and
specified pursuant to Section 3.01 to be applicable to the Debt Securities of
any series, except as otherwise provided pursuant to Section 3.01) with respect
to the Debt Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Debt
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall tend to or affect such term,
provision or condition except to the extent expressly so waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article.
------------------------
Debt Securities of any series which are redeemable before their
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Debt Securities of any series)
in accordance with this Article.
Section 13.02. Election to Redeem: Notice to Trustee.
-------------------------------------
In case of any redemption at the election of the Company of less than
all of the Debt Securities of any series, the Company shall, at least 60 days
before the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Debt Securities of such series to be redeemed. In
the case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restrictions.
96
<PAGE>
Section 13.03. Selection by Trustee of Debt Securities to Be
---------------------------------------------
Redeemed.
- --------
Except in the case of a redemption in whole of the Bearer Securities
or the Registered Securities of such series, if less than all the Debt
Securities of any series are to be redeemed at the election of the Company, the
particular Debt Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the outstanding Debt
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Debt Securities of such series in a
denomination larger than the minimum authorized denomination for Debt Securities
of such series pursuant to Section 3.02 in the Currency in which the Debt
Securities of such series are denominated. The portions of the principal amount
of Debt Securities so selected for partial redemption shall be equal to the
minimum authorized denominations for Debt Securities of such series pursuant to
Section 3.02 in the Currency in which the Debt Securities of such series are
denominated or any integral multiple thereof, except as otherwise set forth in
the applicable form of Debt Securities. In any case when more than one
Registered Security of such series is registered in the same name, the Trustee
in its discretion may treat the aggregate principal amount so registered as if
it were represented by one Registered Security of such series.
If any Debt Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Debt Security so selected, the converted portion of such Debt Security shall
be deemed (so far as may be) to be the portion selected for redemption. Debt
Securities which have been converted during a selection of Debt Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
97
<PAGE>
Section 13.04. Notice of Redemption.
--------------------
Notice of redemption shall be given by the Company, or at the
Company's request, by the Trustee in the name and at the expense of the Company,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.05. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by the
Company pursuant to provisions contained in this Indenture or the terms
of the Debt Securities of such series or a supplemental indenture
establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after said date,
(6) in the case of Debt Securities of any series that is convertible,
the conversion price, the date on which the right to convert the principal
of the Debt Securities of such series to be redeemed will terminate and the
place or places where such Debt Securities may be surrendered for
conversion,
(7) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which
98
<PAGE>
the amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price,
(8) the Place or Places of Payment where such Debt Securities are to
be surrendered for payment of the Redemption Price,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 3.05(b) or
otherwise, the last date on which such exchanges may be made, and
(10) that the redemption is for a sinking fund, if such is the case.
Section 13.05. Deposit of Redemption Price.
---------------------------
On or prior to the Redemption Date for any Debt Securities, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 12.04) an amount of money in the Currency or Currencies in
which such Debt Securities are denominated (except as provided pursuant to
Section 3.01) sufficient to pay the Redemption Price of such Debt Securities or
any portions thereof which are to be redeemed on that date.
Section 13.06. Debt Securities Payable on Redemption Date.
------------------------------------------
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Section 3.01
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest and the Coupons for such interest appertaining to any Bearer
Securities, so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Debt Security for redemption in accordance
with said notice, such Debt Security shall be paid by the Company at the
Redemption Price; provided, however, that installments of interest on Bearer
-------- -------
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 12.03) and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and
99
<PAGE>
surrender of Coupons for such interest; and provided, further, that, unless
-------- -------
otherwise specified as contemplated by Section 3.01, installments of interest on
Registered Securities which have a Stated Maturity on or prior to the Redemption
Date for such Debt Securities shall be payable according to the terms of such
Debt Securities and the provisions of Section 3.07.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the Holder of such Coupon shall surrender to any Paying Agent outside the United
States any such missing Coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the
amount so deducted. The surrender of such missing coupon or Coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless.
Section 13.07. Debt Securities Redeemed in Part.
--------------------------------
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.01 (in the case of Registered
Securities) and at an office of the Trustee or such other office or agency of
the Company outside the United States as is specified pursuant to Section 3.01
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Debt Security without service charge, a new Debt
Security or Debt Securities of the same series, of like tenor and form, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt
100
<PAGE>
Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 3.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, the amount of any cash sinking fund payment may be subject to
reduction as provided in Section 14.02. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with
----------------------------------------------------
Debt Securities.
- ---------------
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, deliver to the Trustee Debt Securities of such series (together with the
unmatured Coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired by the Company, except Debt Securities of such series which
have been redeemed through the application of mandatory sinking fund payments
pursuant to the terms of the Debt Securities of such series, accompanied by a
Company Order instructing the Trustee to credit such sinking fund payment and
stating that the Debt Securities of such series were originally issued by the
Company by way of bona fide sale or other negotiation for value, provided that
--------
such Debt Securities shall not have been previously so credited. Such Debt
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Debt Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
101
<PAGE>
Section 14.03. Redemption of Debt Securities for Sinking Fund.
----------------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.01) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Debt Securities of such series pursuant to Section
14.02 and will also deliver to the Trustee any Debt Securities to be so
delivered. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Debt Securities of such series
subject to a mandatory sinking fund payment without the right to deliver or
credit Debt Securities as provided in Section 14.02.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to
the next sinking fund payment received by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 12.04) for such series and, together with such payment (or such amount
so segregated) shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys with respect to the Debt Securities of
any particular series held by the Trustee (or if the Company is acting as its
own Paying Agent, segregated and held in trust as provided in Section 12.04) on
the last sinking fund payment date with respect to Debt Securities of such
series and not held for the payment or redemption of particular Debt Securities
of such series shall be applied by the Trustee (or by the Company if the Company
is acting as its own Paying Agent), together with other moneys, if necessary, to
be deposited (or segregated) sufficient for the purpose, to the
102
<PAGE>
payment of the principal of the Debt Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Debt Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 13.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.04. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 13.06.
On or before each sinking fund payment date, the Company shall pay to
the Trustee (or, if the Company is acting as its own Paying Agent, the Company
shall segregate and hold in trust as provided in Section 12.04) in cash a sum,
in the Currency or Currencies in which Debt Securities of such series are
denominated (except as provided pursuant to Sections 3.01 or 3.10), equal to the
principal and any interest accrued to the Redemption Date for Debt Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section.
Neither the Trustee nor the Company shall redeem any Debt Securities
of a series with sinking fund moneys or mail any notice of redemption of Debt
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any Debt
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the Debt
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Debt Securities if cash sufficient for that purpose shall be deposited with
the Trustee (or segregated by the Company) for that purpose in accordance with
the terms of this Article. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Debt Securities and Coupons, if any, of such series; provided,
--------
however, that in case such default or Event of Default shall have been cured or
- -------
waived as provided herein, such moneys shall thereafter be applied on or prior
to the next sinking fund payment date for the Debt Securities of such series on
which such moneys may be applied pursuant to the provisions of this Section.
103
<PAGE>
ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. Applicability of Article.
------------------------
If, pursuant to Section 3.01, provision is made for the defeasance of
Debt Securities of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as
provided pursuant to Section 3.01) then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 3.01 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or Currencies or for Bearer Securities may be
specified pursuant to Section 3.01.
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government
----------------------------------------------------
Obligations.
- -----------
At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with respect to
Debt Securities of any series ("legal defeasance option") or (b) the Company
shall cease to be under any obligation to comply with any term, provision or
condition set forth in Section 10.01 with respect to Debt Securities of any
series (and, if so specified pursuant to Section 3.01, any other obligation of
the Company or restrictive covenant added for the benefit of such series
pursuant to Section 3.01) ("covenant defeasance option") at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Debt Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient, in
the opinion (with respect to (i) and (ii)) of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of
principal (including any mandatory sinking fund payments) of (and premium,
if any), and interest on, the Outstanding Debt Securities of such series on
the dates such installments of interest, principal, and premium are due;
104
<PAGE>
(2) such deposit shall not cause the Trustee with respect to the
Debt Securities of that series to have a conflicting interest as defined
in the Trust Indenture Act with respect to the Debt Securities of any
series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) if the Debt Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an opinion of Counsel or a letter or other document from such
exchange to the effect that the Company's exercise of its option under this
Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit) which, with
notice or lapse of time or both, would become an Event of Default with
respect to the Debt Securities of such series shall have occurred and be
continuing on the date of such deposit and, with respect to the legal
defeasance option only, no Event of Default under Section 5.01(5) or
Section 5.01(6) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.01(5) or Section
5.01(6) shall have occurred and be continuing on the 91st day after such
date; and
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel or a ruling from the Internal Revenue Service to the effect that
the Holders of the Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.01(5) or Section 5.01(6) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.01(5) or Section 5.01(6) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated. Money and securities held
in trust pursuant to a legal defeasance shall not be subject to Article Sixteen.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by,
105
<PAGE>
and obligations under, the Debt Securities of such series and to have satisfied
all the obligations under this Indenture relating to the Debt Securities of such
series (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund described in clause
(1) above, payment of the principal of (and premium, if any) and interest on
such Debt Securities when such payments are due, (B) the Company's obligations
with respect to the Debt Securities of such series under Sections 3.04, 3.05,
3.06, 12.03 and 15.03 and (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
--------
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
Section 15.03. Deposited Moneys and U.S. Government Obligations to
---------------------------------------------------
Be Held in Trust.
- ----------------
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.02 in respect of Debt Securities of a series shall be
held in trust and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Debt Securities, of all sums due
and to become due thereon for principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
106
<PAGE>
Section 15.04. Repayment to Company.
--------------------
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Debt Securities of any series for which
money or U.S. Government Obligations have been deposited pursuant to Section
15.02.
The provisions of the last paragraph of Section 12.04 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 15.02.
ARTICLE SIXTEEN
SUBORDINATION
Section 16.01. Agreement to Subordinate.
------------------------
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Debt Securities of any series (or of any Coupons
appertaining thereto) by his acceptance thereof, likewise covenants and agrees,
that the indebtedness represented by the Debt Securities of such series then
Outstanding (and any Coupons appertaining thereto) and the payment of the
principal of (and premium, if any) and interest on each and all of the Debt
Securities of such series (including, without limitation, any payment of Coupons
appertaining thereto) are hereby expressly subordinated, to the extent and in
the manner hereinafter set forth, in right of payment to the prior payment in
full of all Senior Indebtedness. Each reference in this Article to a "Debt
Security" or "Debt Securities" refers to the Debt Securities of a particular
series, and references to a "Coupon" or "Coupons" refer to the coupons
appertaining to the Debt Securities of such series. Without limiting the
generality of the immediately preceding sentence, if more than one series of
Debt Securities are Outstanding at any time, (i) the provisions of this Article
shall be applied separately to each such series, and (ii) references to the
Trustee refer to the Trustee for the Debt Securities of such series.
Section 16.02. Distribution on Dissolution, Liquidation and
--------------------------------------------
Reorganization; Subrogation of Debt Securities.
- ----------------------------------------------
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization, of the
107
<PAGE>
Company, whether voluntary or involuntary and whether in bankruptcy, insolvency,
reorganization, receivership or other proceedings or upon an assignment for the
benefit of creditors or any other marshalling of the assets and liabilities of
the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Debt Securities and the Holders thereof by a plan of
reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be entitled to
receive payment in full of the principal thereof (and premium, if any) and
interest due thereon before the Holders of the Debt Securities (or of any
Coupons) are entitled to receive any payment upon the principal (and
premium, if any) or interest on indebtedness evidenced by the Debt
Securities (or any payment of any coupons); and
(b) any payment or distribution of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of
the Debt Securities (or of any Coupons) or the Trustee would be entitled
except for the provisions of this Article Sixteen shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or
their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of (and premium, if
any) and interest on the Senior Indebtedness held or represented by each,
to the extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or the
Holders of the Debt Securities (or any Coupons) before all Senior
Indebtedness is paid in full, such payment or distribution shall be paid
over, upon written notice to the Trustee, to the holder of such Senior
Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instrument evidencing any
of such Senior Indebtedness may have been issued, ratably as aforesaid, for
application to payment of all Senior
108
<PAGE>
Indebtedness remaining unpaid until all such Senior Indebtedness shall have
been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Ten hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 16.02
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Ten hereof.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Debt Securities (and of any Coupons) shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to Senior Indebtedness until
the principal of (and premium, if any) and interest on the Debt Securities
(including, without limitation, payment of the Coupons) shall be paid in full,
and no such payments or distributions to the Holders of the Debt Securities (or
of any Coupons) of cash, property, or securities otherwise distributable to the
holders of Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the Debt
Securities (and of any Coupons) be deemed to be a payment by the Company to or
on account of the Debt Securities (or of any Coupons). It is understood that
the provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Debt Securities
(and of any Coupons), on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Debt Securities (or any Coupons) is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Debt Securities (and of any Coupons), the
obligation of the Company, which is unconditional and absolute, to pay to the
Holders of the Debt Securities (and of any Coupons) the principal of (and
premium, if any) and interest on the Debt Securities (including, without
limitation, payment of any Coupons) as and when the same shall become due and
payable in accordance with their terms, or to affect the relative rights of the
Holders of the Debt Securities (or of any Coupons) and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or in
the Debt Securities
109
<PAGE>
(or Coupons) prevent the Trustee or the Holder of any Debt Security (or any
Coupon) from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Sixteen of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee, subject to the provisions of Section 6.03,
shall be entitled to rely upon a certificate of the liquidating trustee or agent
or other Person making any distribution to the Trustee for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent to this Article Sixteen.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness. The Trustee shall not be liable to any such
holder if it shall in good faith pay or distribute to or on behalf of Holders of
Debt Securities (or of any Coupons) or the Company moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article
Sixteen.
If the Trustee or any Holder of Debt Securities (and of any Coupons)
does not file a proper claim or proof of debt in the form required in any
proceeding referred to above prior to 30 days before the expiration of the time
to file such claim in such proceeding, then the holder of any Senior
Indebtedness is hereby authorized, and has the right, to file an appropriate
claim or claims for or on behalf of such Holder of Debt Securities (or of any
Coupons).
Section 16.03. No Payment on Debt Securities in Event of Default on
----------------------------------------------------
Senior Indebtedness.
- -------------------
No payment by the Company on account of principal (or premium, if
any), sinking funds or interest on the Debt Securities (including, without
limitation, payment of any Coupons) shall be made unless full payment of amounts
then due for principal, premium, if any, sinking funds, and interest on Senior
Indebtedness has been made or duly provided for.
Section 16.04. Payments on Debt Securities Permitted.
-------------------------------------
Nothing contained in this Indenture or in any of the Debt Securities
(or any Coupons) shall (a) affect the obligation of the Company to make, or
prevent the Company from making, at
110
<PAGE>
any time except as provided in Sections 16.02 and 16.03, payments of principal
(and premium, if any) or interest on the Debt Securities (including, without
limitation, payment of any Coupons) or (b) prevent the application by the
Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest on the Debt
Securities (including, without limitation, the payment of any Coupons), unless
the Trustee shall have received at its Corporate Trust Office written notice of
any event prohibiting the making of such payment more than two Business Days
prior to the date fixed for such payment.
Section 16.05. Authorization of Holders to Trustee to Effect
---------------------------------------------
Subordination.
- -------------
Each Holder of Debt Securities (or of any Coupons) by his acceptance
thereof and any Paying Agent (other than the Company) authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate as between the Holders of the Debt Securities and the Holders of
Senior Indebtedness the subordination as provided in this Article Sixteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 16.06. Notices to Trustee.
------------------
The Company shall give prompt written notice to the Trustee and any
Paying Agent (other than the Company) of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee or such Paying
Agent in respect of the Debt Securities (or any Coupons) pursuant to this
Article Sixteen. Failure to give such notice shall not affect the subordination
of the Debt Securities (or any Coupons) to Senior Indebtedness. Notwithstanding
the provisions of this Article or any other provisions of this Indenture,
neither the Trustee nor any Paying Agent (other than the Company) shall be
charged with knowledge of the existence of any Senior Indebtedness or of any
event which would prohibit the making of any payment of moneys to or by the
Trustee or such Paying Agent, unless and until the Trustee or such Paying Agent
shall have received (in the case of the Trustee, at its Corporate Trust Office)
written notice thereof from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee; provided, however, that if at least two Business Days
-------- -------
prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of either
the principal of (and premium, if any) or interest on any Debt Security
(including, without limitation, the payment of any Coupons)) the Trustee or any
such Paying Agent shall not have
111
<PAGE>
received with respect to such moneys the notice provided for in this Section
16.06, then, anything herein contained to the contrary notwithstanding, the
Trustee or any such Paying Agent shall have full power and authority to receive
such moneys and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary, which may be received
by it less than two Business Days prior to such date. The Trustee or any such
Paying Agent shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness (or a
trustee on behalf of such holder) to establish that such a notice has been given
by a holder of Senior Indebtedness or a trustee on behalf of any such holder.
In the event that the Trustee or any such Paying Agent determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Sixteen, the Trustee or any such Paying Agent may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee or any such Paying Agent as to the amount of Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Sixteen and, if such evidence is not furnished, the
Trustee or any such Paying Agent may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Section 16.07. Trustee as Holder of Senior Indebtedness.
----------------------------------------
Subject to the provisions of Section 6.13, the Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article Sixteen in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.07.
Section 16.08. Modifications of Terms of Senior Indebtedness.
---------------------------------------------
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including, without limitation, the waiver of default thereunder, may be made or
done all without
112
<PAGE>
notice to or assent from the Holders of the Debt Securities (or of any Coupons)
or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is Outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article
Sixteen or of the Debt Securities (or of any Coupons) relating to the
subordination thereof.
Section 16.09. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent.
- -----------------
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee and the Holders of the Debt Securities (and
of any Coupons) shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which any insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or upon a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Debt Securities (or of any
Coupons), for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable therein, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Sixteen.
Section 16.10. Article Sixteen Not to Prevent Events of Default.
------------------------------------------------
No provision of this Article Sixteen shall prevent the occurrence of
any default or Event of Default hereunder.
Section 16.11. Certain Conversions Not Deemed Payment.
--------------------------------------
For the purposes of this Article Sixteen only, in the case of Debt
Securities of any series that is convertible, (i) the issuance and delivery of
junior securities (as hereinafter defined) upon conversion of such Debt
Securities in accordance with Article Seventeen shall not be deemed to
constitute a payment or distribution on account of the principal of (or premium,
if any) or interest on such Debt Securities or on
113
<PAGE>
account of the purchase or other acquisition of such Debt Securities, and (2)
the payment, issuance or delivery of cash, property or securities (other than
junior securities) upon conversion of a Debt Security of such series shall be
deemed to constitute payment on account of the principal of such Debt Security.
For the purposes of this Section, the term "junior securities" means (a) shares
of any stock of any class of the Company, including Equity Securities and (b)
securities of the Company which are subordinated in right of payment to all
Senior Indebtedness which may be Outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent
than, the Debt Securities are so subordinated as provided in this Article
Sixteen. Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Debt Securities is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of the Debt Securities, the right, which is absolute and unconditional, of the
Holder of any Debt Security of any series that is convertible to convert such
Debt Security in accordance with Article Seventeen.
ARTICLE SEVENTEEN
CONVERSION
Section 17.01. Applicability; Conversion Privilege.
-----------------------------------
Except as otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, the provisions of this Article Seventeen shall be
applicable to any Debt Securities that are convertible into Equity Securities.
Each reference in this Article to a "Debt Security" or "Debt Securities" refers
to the Debt Securities of a particular series that is convertible into Equity
Securities, and references to a "Coupon" or "Coupons" refer to the Coupons
appertaining to the Debt Securities of such series. Without limiting the
generality of the immediately preceding sentence, if two or more series of Debt
Securities with conversion privileges are Outstanding at any time, (i) the
provisions of this Article shall be applied separately to each such series, and
(ii) references to the Trustee refer to the Trustee for the Debt Securities of
such series. If so provided pursuant to Section 3.01 with respect to the Debt
Securities of any series, the Holder of a Debt Security of such series shall
have the right, at such Holder's option, to convert, in accordance with the
terms of such series of Debt Securities and this Article Seventeen, all or any
part (if the portion to be converted and the remaining portion of such Debt
Security are in authorized denominations for that series of Debt Securities) of
such Debt Security into shares of Equity Securities, at any time during the
period specified in the terms of the Debt Securities
114
<PAGE>
of that series pursuant to Section 3.01, at the Conversion Price in effect on
the date of conversion, or, as to any Debt Securities called for redemption, at
any time prior to the time and date fixed for such redemption (unless the
Company shall default in the payment of the Redemption Price, in which case such
right shall not terminate at such time and date).
Section 17.02. Conversion Procedure; Conversion Price; Fractional
--------------------------------------------------
Shares.
- ------
(a) Except as otherwise specified as contemplated by Section 3.01 for
Debt Securities of any series, each Debt Security of such series to which this
Article is applicable shall be convertible at the office of the Conversion
Agent, and at such other place or places, if any, specified pursuant to Section
3.01 with respect to the Debt Securities of such series, into fully paid and
nonassessable shares (calculated to the nearest 1/100th of a share) of Equity
Securities. The Debt Securities will be converted into shares of Equity
Securities at the Conversion Price therefor. No payment or adjustment shall be
made in respect of dividends on the Equity Securities or accrued interest on a
converted Debt Security except as described in Section 17.09 and Section
17.02(c). The Company may, but shall not be required, in connection with any
conversion of Debt Securities, to issue a fraction of a share of any Equity
Security and, if the Company shall determine not to issue any such fraction, the
Company shall, subject to Section 17.03(4), make a cash payment (calculated to
the nearest cent) equal to such fraction multiplied by the Closing Price of such
Equity Security on the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Debt Security shall be entitled to convert
the same into Equity Securities, such Holder shall surrender such Debt Security
duly endorsed to the Company or in blank, or, in the case of Bearer Securities,
together with all unmatured Coupons and any matured Coupons in default attached
thereto, at the office of the Conversion Agent or at such other place or places,
if any, specified pursuant to Section 3.01 (in the case of Registered
Securities) and at an office of the Conversion Agent or at such other place or
places, if any, outside of the United States as is specified pursuant to Section
3.01 (in the case of Bearer Securities), and shall give written notice to the
Company at said office or place that he elects to convert the same and shall
state in writing therein the principal amount of Debt Securities to be converted
and the name or names (with addresses) in which he wishes the certificate or
certificates for Equity Securities to be issued.
If more than one Debt Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares of Equity Securities
which shall be deliverable upon
115
<PAGE>
conversion shall be computed on the basis of the aggregate principal amount of
the Debt Securities (or specified portions thereof to the extent permitted
thereby) so surrendered. Subject to the next succeeding sentence, the Company
will, as soon as practicable after the surrender of a Debt Security for
conversion, issue and deliver at said office or place to the Holder of a Debt
Security or to his nominee or nominees, certificates for the number of full
shares of Equity Securities to which he shall be entitled as aforesaid,
together, subject to the last sentence of paragraph (a) above, with cash in lieu
of any fraction of a share to which he would otherwise be entitled. The Company
shall not be required to deliver certificates for shares of Equity Securities
while the stock transfer books for such stock or the Security Register are duly
closed for any purpose, but certificates for shares of Equity Securities shall
be issued and delivered as soon as practicable after the opening of such books
or Security Register.
(c) If, at the time of surrender pursuant to Section 17.02(a), the
Holder of a Bearer Security is unable to produce all unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such conversion may be effected if the
Bearer Securities to be surrendered for conversion are accompanied by payment in
funds acceptable to the Company in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons
may be waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to any Paying Agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that except as otherwise provided in
-------- -------
Section 12.03, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside the United States.
(d) A Debt Security shall be deemed to have been converted as of the
close of business on the date of the surrender of such Debt Security for
conversion as provided above, and the Person or Persons entitled to receive the
Equity Securities issuable upon such conversion shall be treated for all
purposes as the record Holder or Holders of such Equity Securities as of the
close of business on such date.
(e) In case any Debt Security shall be surrendered for partial
conversion, the Company shall execute and the Trustee shall authenticate and
deliver to or upon the written order of the Holder of the Debt Securities so
surrendered, without charge to such Holder (subject to the provisions of Section
17.08), a new Debt Security or Securities in authorized denominations in an
116
<PAGE>
aggregate principal amount equal to the unconverted portion of the surrendered
Debt Security, together, in the case of Bearer Securities, with any unmatured
Coupons and matured Coupons in default attached thereto.
Section 17.03. Adjustment of Conversion Price for Common Stock.
-----------------------------------------------
The Conversion Price with respect to any Debt Security which is
convertible into Equity Securities shall be adjusted from time to time as
follows:
(1) In case the Company shall, at any time or from time to time while
any of such Debt Securities are Outstanding, (i) pay a dividend in shares
of an Equity Security to holders of such class of Equity Security, (ii)
combine its outstanding shares of an Equity Security into a smaller number
of shares of that Equity Security, (iii) subdivide its outstanding shares
of an Equity Security into a greater number of shares of that Equity
Security or (iv) make a distribution in shares of an Equity Security to
holders of such Equity Security, then the Conversion Price in effect
immediately before such action shall be adjusted so that the Holders of
such Debt Securities, upon conversion thereof into Equity Securities
immediately following such event, shall be entitled to receive the kind and
amount of shares of capital stock of the Company which they would have
owned or been entitled to receive upon or by reason of such event if such
Debt Securities had been converted immediately before the record date (or,
if no record date, the effective date) for such event. An adjustment made
pursuant to this Section 17.03(1) shall become effective retroactively
immediately after the record date in the case of a dividend or distribution
and shall become effective retroactively immediately after the effective
date in the case of a subdivision or combination. For the purposes of this
Section 17.03(1), each Holder of Debt Securities shall be deemed to have
failed to exercise any right to elect the kind or amount of securities
receivable upon the payment of any such dividend, subdivision, combination
or distribution (provided that if the kind or amount of securities
receivable upon such dividend, subdivision, combination or distribution is
not the same for each nonelecting share, then the kind and amount of
securities or other property receivable upon such dividend, subdivision,
combination or distribution for each nonelecting share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
nonelecting shares).
(2) In case the Company shall, at any time or from time to time while
any of such Debt Securities are
117
<PAGE>
Outstanding, issue rights or warrants to all or substantially all holders
of shares of a class of its Equity Securities into which Debt Securities
are convertible entitling them (for a period expiring within 45 days after
the record date for such issuance) to subscribe for or purchase shares of
such Equity Security (or securities convertible into shares of such Equity
Security) at a price per share less than the Current Market Price of the
Equity Security at such record date (treating the price per share of the
securities convertible into such Equity Security as equal to (x) the sum of
(i) the price for a unit of the security convertible into such Equity
Security and (ii) any additional consideration initially payable upon the
conversion of such security into such Equity Security divided by (y) the
number of shares of such Equity Security initially underlying such
convertible security), the Conversion Price with respect to such Debt
Securities shall be adjusted so that it shall equal the price determined
by dividing the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by a fraction, the numerator of which
shall be the number of shares of such Equity Security outstanding on the
date of issuance of such rights or warrants plus the number of additional
shares of such Equity Security offered for subscription or purchase (or
into which the convertible securities so offered are initially
convertible), and the denominator of which shall be the number of shares of
such Equity Security outstanding on the date of issuance of such rights or
warrants plus the number of shares or securities which the aggregate
offering price of the total number of shares or securities so offered for
subscription or purchase (or the aggregate purchase price of the
convertible securities so offered plus the aggregate amount of any
additional consideration initially payable upon conversion of such
securities into such Equity Security) would purchase at such Current Market
Price of such Equity Security. Such adjustment shall become effective
retroactively immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants.
(3) In case the Company shall, at any time or from time to time while
any of such Debt Securities are Outstanding, distribute to all or
substantially all holders of shares of a class of its Equity Securities
into which Debt Securities are convertible (including any such distribution
made in connection with a consolidation or merger in which the Company is
the continuing corporation and such Equity Security is not changed or
exchanged) cash, evidences of its indebtedness, securities or assets
(excluding (i) regular periodic cash dividends in amounts, if any,
determined from time to time by the Board of
118
<PAGE>
Directors (to the extent paid from current or retained earnings of the
Company) or (ii) dividends payable in shares of such Equity Security for
which adjustment is made under Section 17.03(1)) or rights or warrants to
subscribe for or purchase securities of the Company (excluding those
referred to in Section 17.03(2)), then in each such case the Conversion
Price with respect to such Debt Securities shall be adjusted so that it
shall equal the price determined by dividing the Conversion Price in effect
immediately prior to the date of such distribution by a fraction, the
numerator of which shall be the Current Market Price of such Equity
Security on the record date referred to below, and the denominator of which
shall be such Current Market Price of such Equity Security less the then
fair market value (as determined by the Board of Directors of the Company,
whose determination shall be conclusive) of the portion of the cash or
assets or evidences of indebtedness or securities so distributed or of such
subscription rights or warrants applicable to one share of such Equity
Security (provided that such denominator shall never be less than 1.0);
provided, however, that no adjustment shall be made with respect to any
-------- -------
distribution of rights to purchase securities of the Company if a Holder of
Debt Securities would otherwise be entitled to receive such rights upon
conversion at any time of such Debt Securities into such Equity Security
unless such rights are subsequently redeemed by the Company, in which case
such redemption shall be treated for purposes of this Section as a dividend
on such Equity Security. Such adjustment shall become effective
retroactively immediately after the record date for the determination of
stockholders entitled to receive such distribution; and in the event that
such distribution is not so made, the Conversion Price shall again be
adjusted to the Conversion Price which would then be in effect if such
record date had not been fixed.
(4) The Company shall be entitled to make such additional adjustments
in the Conversion Price, in addition to those required by subsections
17.03(1), 17.03(2) and 17.03(3), as shall be necessary in order that any
dividend or distribution of an Equity Security, any subdivision,
reclassification or combination of shares of an Equity Security or any
issuance of rights or warrants referred to above shall not be taxable to
the holders of a class of an Equity Security for United States Federal
income tax purposes.
(5) In any case in which this Section 17.03 shall require that any
adjustment be made effective as of or retroactively immediately following a
record date, the Company may elect to defer (but only for five (5) Trading
119
<PAGE>
Days following the filing of the statement referred to in Section 17.05)
issuing to the Holder of any Debt Securities converted after such record
date the shares of the Equity Security and other capital stock of the
Company issuable upon such conversion over and above the shares of Equity
Security and other capital stock of the Company issuable upon such
conversion on the basis of the Conversion Price prior to adjustment;
provided, however, that the Company shall deliver to such Holder a due bill
-------- -------
or other appropriate instrument evidencing such Holder's right to receive
such additional shares upon the occurrence of the event requiring such
adjustment.
(6) All calculations under this Section 17.03 shall be made to the
nearest cent or one-hundredth of a share or security, with one-half cent
and 0.005 of a share, respectively, being rounded upward. Notwithstanding
any other provision of this Section 17.03, the Company shall not be
required to make any adjustment of the Conversion Price unless such
adjustment would require an increase or decrease of at least 1% of such
price. Any lesser adjustment shall be carried forward and shall be made at
the time of and together with the next subsequent adjustment which,
together with any adjustment or adjustments so carried forward, shall
amount to an increase or decrease of at least 1% in such price. Any
adjustments under this Section 17.03 shall be made successively whenever an
event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an adjustment made
pursuant to this Section 17.03, the Holder of any Debt Security thereafter
surrendered for conversion shall become entitled to receive any shares of
stock of the Company other than shares of an Equity Security into which the
Debt Securities originally were convertible, the Conversion Price of such
other shares so receivable upon conversion of any such Debt Security shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to an
Equity Security contained in subparagraphs (1) through (6) of this Section
17.03, and the provision of Sections 17.01, 17.02 and 17.04 through 17.09
with respect to the Equity Securities shall apply on like or similar terms
to any such other shares and the determination of the Board of Directors as
to any such adjustment shall be conclusive.
(8) No adjustment shall be made pursuant to this Section: (i) if the
effect thereof would be to reduce the Conversion Price below the par value
(if any) of the Common Stock or the stated value of the Preference Stock or
(ii)
120
<PAGE>
subject to 17.03(5) hereof, with respect to any Debt Security that is
converted prior to the time such adjustment otherwise would be made.
Section 17.04. Consolidation or Merger of the Company.
--------------------------------------
In case of either (a) any consolidation or merger to which the Company
is a party, other than a merger or consolidation in which the Company is the
surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value) in, outstanding shares
of an Equity Security or (b) any sale or conveyance of all or substantially all
of the property and assets of the Company to another Person, then each Debt
Security then Outstanding shall be convertible from and after such merger,
consolidation, sale or conveyance of property and assets into the kind and
amount of shares of stock or other securities and property receivable upon such
consolidation, merger, sale or conveyance by a holder of the number of shares of
Equity Securities into which such Debt Securities would have been converted
immediately prior to such consolidation, merger, sale or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article Seventeen (and assuming such holder of
the Equity Security failed to exercise his rights of election, if any, as to the
kind or amount of securities, cash or other property receivable upon such
consolidation, merger, sale or conveyance (provided that, if the kind or amount
of securities, cash or other property receivable upon such consolidation,
merger, sale or conveyance is not the same for each nonelecting share, then the
kind and amount of securities, cash or other property (including cash)
receivable upon such consolidation, merger, sale or conveyance for each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares or securities)). The Company
shall not enter into any of the transactions referred to in clause (a) or (b) of
the preceding sentence unless effective provision shall be made so as to give
effect to the provisions set forth in this Section 17.04. The provisions of this
Section 17.04 shall apply similarly to successive consolidations, mergers, sales
or conveyances.
Section 17.05. Notice of Adjustment.
--------------------
Whenever an adjustment in the Conversion Price with respect to a
series of Debt Securities is required:
(1) the Company shall forthwith place on file with the Trustee and
any Conversion Agent for such Debt Securities a certificate of the
Treasurer of the Company, stating the adjusted Conversion Price determined
as provided herein and
121
<PAGE>
setting forth in reasonable detail such facts as shall be necessary to show
the reason for and the manner of computing such adjustment, such
certificate to be conclusive evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be given by the
Company, or at the Company's request, by the Trustee in the name and at the
expense of the Company, in the manner provided in Section 1.05. Any notice
so given shall be conclusively presumed to have been duly given, whether or
not the Holder receives such notice.
Section 17.06. Notice in Certain Events.
------------------------
In case:
(1) of a consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of
the sale or conveyance to another Person or entity or group of Persons or
entities acting in concert as a partnership, limited partnership, syndicate
or other group (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of all or substantially all of the
property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion Price
pursuant to this Article Seventeen;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Debt Securities, and shall cause to be
given, to the Holders of applicable Debt Securities in the manner provided in
Section 1.05, at least fifteen (15) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article
Seventeen, or, if a record is not to be taken, the date as of which the holders
of record of an Equity Security entitled to such distribution, rights or
warrants are to be determined, or (y) the date on which any reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up
triggering an adjustment to the Conversion Price pursuant to this Article
Seventeen is expected to become effective, and the date as of which it is
expected that holders of the Equity Security of record shall be
122
<PAGE>
entitled to exchange their Equity Securities for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2) or (3) of
this Section.
Section 17.07. Company To Reserve Equity Securities; Registration;
---------------------------------------------------
Listing.
- -------
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of its Equity
Secutities, for the purpose of effecting the conversion of the Debt Securities,
such number of its duly authorized shares of Equity Securities as shall from
time to time be sufficient to effect the conversion of all applicable
outstanding Debt Securities into such Equity Securities at any time (assuming
that, at the time of the computation of such number of shares or securities, all
such Debt Securities would be held by a single holder); provided, however, that
-------- -------
nothing contained herein shall preclude the Company from satisfying its
obligations in respect of the conversion of the Debt Securities by delivery of
purchased shares of Equity Securities which are held in the treasury of the
Company. The Company shall from time to time, in accordance with the laws of
the Commonwealth of Pennsylvania, use its best efforts to cause the authorized
amount of the Equity Securities to be increased if the aggregate of the
authorized amount of the Equity Securities remaining unissued and the issued
shares of such Equity Securities in its treasury (other than any such shares
reserved for issuance in any other connection) shall not be sufficient to permit
the conversion of all Debt Securities. The Company covenants that all shares of
Equity Securities which may be issued upon conversion of Debt Securities will
upon issue be fully paid and nonassessable and free from all liens and charges
and, except as provided in Section 17.08, taxes with respect to the issue
thereof.
(b) If any shares of Equity Securities which would be issuable upon
conversion of Debt Securities hereunder require registration with or approval of
any governmental authority before such shares or securities may be issued upon
such conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company further covenants that so long as the Equity
Securities shall be listed on the New York Stock Exchange, the Company will, if
permitted by the rules of such exchange, list and keep listed all Common Stock
issuable upon conversion of the Debt Securities, and
123
<PAGE>
the Company will endeavor to list the shares of Equity Securities required to be
delivered upon conversion of the Debt Securities prior to such delivery upon any
other national securities exchange upon which the outstanding Equity Securities
are listed at the time of such delivery.
Section 17.08. Taxes on Conversion.
-------------------
The issue of stock certificates on conversion of Debt Securities shall
be made without charge to the converting Holder for any tax in respect of the
issue thereof, and the Company shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the issue or
delivery of shares of Equity Securities on conversion of Debt Securities
pursuant hereto. The Company shall not, however, be required to pay any such
tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of Equity Securities or the portion, if any, of the Debt
Securities which are not so converted in a name other than that in which the
Debt Securities so converted were registered (in the case of Registered
Securities), and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to the Company the amount of such tax or
has established to the satisfaction of the Company that such tax has been paid.
Section 17.09. Conversion After Record Date.
----------------------------
If any Registered Securities are surrendered for conversion subsequent
to the record date preceding an Interest Payment Date but on or prior to such
Interest Payment Date (except Registered Securities called for redemption on a
Redemption Date between such record date and Interest Payment Date), the
Holder of such Registered Securities at the close of business on such record
date shall be entitled to receive the interest payable on such Registered
Securities on such Interest Payment Date notwithstanding the conversion
thereof. Registered Securities surrendered for conversion during the period
from the close of business on any record date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(except in the case of Registered Securities which have been called for
redemption on a Redemption Date within such period in which case, notwith-
standing anything to the contrary contained in this Indenture, no interest
payment shall be made on such Interest Payment Date to the Holders of such
Registered Security on such record date) be accompanied by payment in New York
Clearing House funds or other funds and in the Currency acceptable to the
Company of an amount equal to the interest payable on such Interest Payment
Date on the Registered Securities being surrendered for conversion. Except as
provided in this Section 17.09 and Section 17.02(c), no adjustments in respect
of payments of interest on Debt Securities surrendered for conversion or any
dividends or distributions or interest on the Equity Securities issued upon
conversion shall be made upon the conversion of any Debt Securities.
124
<PAGE>
Section 17.10. Company Determination Final.
---------------------------
Any determination that the Company or the Board of Directors must make
pursuant to this Article shall be conclusive if made in good faith and in
accordance with the provisions of this Article, absent manifest error.
Section 17.11. Trustee's Disclaimer.
--------------------
The Trustee has no duty to determine when an adjustment under this
Article should be made, how it should be made or what it should be. The Trustee
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Debt Securities. The Trustee shall not be respon-
sible for the Company's failure to comply with this Article. Each Conversion
Agent other than the Company shall have the same protection under this Section
as the Trustee.
125
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
SUN COMPANY, INC.
By: /s/ Richard L. Cartlidge
-------------------------------------
Title: Comptroller
----------------------------------
Attest:
/s/ Donald J. Ainsworth
- -----------------------------------
Title: Corporate Secretary
Seal
BANKERS TRUST COMPANY,
as Trustee
By: /s/ Rossana E. Abueva
-------------------------------------
Title: Assistant Treasurer
----------------------------------
Attest:
/s/ Jenna Rossheim
- -----------------------------------
Title: Assistant Vice President
Seal
126
<PAGE>
COMMONWEALTH OF PENNSYLVANIA )
: ss.:
COUNTY OF PHILADELPHIA )
On the 19th day of May, 1994, before me personally came Donald J.
Ainsworth to me known, who, being by me duly sworn, did depose and say that he
resides at 1801 Market Street, Philadelphia, PA. 19103; that he is Corporate
Secretary of Sun Company, Inc., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation, and
that he signed his name thereto by like authority.
/s/ Thomas Brownlie, Jr.
-----------------------------------
Notary Public
Seal
127
<PAGE>
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On the 19th day of May, 1994, before me personally came Rossana E.
Abeuva, to me known, who, being by me duly sworn, did depose and say that she
resides at Four Albany Street, New York, N.Y. 10006; that she is Assistant
Treasurer of Bankers Trust Company, one of the corporations described in the
foregoing instrument; that she knows the seal said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that she signed
her name thereto by like authority.
/s/ John Florio
-----------------------------------
Notary Public
Seal
128
<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
-------------------------
[Insert title or sufficient description
of Debt Securities to be delivered]
This is to certify that as of the date hereof and except as set forth
below _______________ principal amount of the above captioned Debt Securities
held by you for our account (i) is owned by person(s) that are not United States
person(s) (as defined below), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise the Company or the
Company's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the Treasury regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury regulations), and in addition if the owner of the Debt
Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this is
to further certify that such financial institution has not acquired the Debt
Securities for the purpose of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the beneficial
interest in the temporary global Security held by you for our account in
1
<PAGE>
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to _______________
principal amount of Debt Securities held by you for our account as to which we
are not able to provide a certificate in this form. We understand that exchange
of such portion of the temporary global Note for definitive Bearer Securities or
interests in a permanent global Note cannot be made until we are able to provide
a certificate in this form.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: ____________________, 19___
[To be dated no earlier than the 10th day before the Exchange Date]
By:
----------------------------------------
As, or as agent for, the beneficial owner(s)
of the portion of the temporary Global Note
to which this certificate relates.
2
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
-------------------------
[Insert title or sufficient description
of Debt Securities to be delivered]
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof,
_______________ principal amount of the above-captioned Debt Securities (i) is
owned by person(s) that are not United States person(s) (as defined below),
(ii) is owned by United States person(s) that are (a) foreign branches of
United States financial institutions (as defined in Section 1.165-12(c)(1)(v)
of the United States Treasury regulations) ("financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Debt Securities through foreign branches of United States
financial institutions and who hold the Debt Securities through such United
States financial institutions on the date hereof (and in either case (a) or
(b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Company or the Company's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended, and the Treasury
regulations thereunder), or (iii) is owned by United States or foreign
financial institution(s) for the purpose of resale during the restricted
period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States
Treasury regulations), and in addition United States or foreign financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Debt
Securities for the purpose of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We further certify (i) that we are not making available for exchange
or collection of any interest any portion of the temporary Global Note excepted
in such certifications and (ii)
1
<PAGE>
that as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange or collection of any interest are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: ____________________, 19___
[To be dated no earlier than the
Exchange Date]
By:
----------------------------------------
[MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE, as operator of
the Euro-Clear System] [CEDEL, S.A.]
2
<PAGE>
EXHIBIT 4.3
================================================================================
SUN COMPANY, INC.
and
[WARRANT AGENT]
As Warrant Agent
______________
Warrant Agreement -- Debt Securities
Dated as of , 199_
______________
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES . . . . . . . . . . . 2
SECTION 1.1. Issuance of Warrants . . . . . . . . . . . . . . . . . . . 2
SECTION 1.2. Execution and Delivery of Warrants
Certificates . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.3. Issuance of Warrant Certificates . . . . . . . . . . . . . 3
SECTION 1.4. Temporary Warrant Certificate . . . . . . . . . . . . . . . 4
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS . . . . . . . . . . . . . 4
SECTION 2.1. Warrant Price . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.2. Duration of Warrants . . . . . . . . . . . . . . . . . . . 4
SECTION 2.3. Exercise of Warrants . . . . . . . . . . . . . . . . . . . 5
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES . . . . . . . . . 6
SECTION 3.1. No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.2. Lost, Stolen, Mutilated or Destroyed
Warrant Certificates . . . . . . . . . . . . . . . . . . 6
SECTION 3.3. Holder of Warrant Certificate May
Enforce Rights . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.4. Consolidation, Merger, Sale or Conveyance . . . . . . . . . 7
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES . . . . . . . . . . . 8
SECTION 4.1. Exchange and Transfer of Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.2. Treatment of Holders of Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.3. Cancellation of Warrant Certificates . . . . . . . . . . . 9
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
ARTICLE V.
<S> <C>
CONCERNING THE WARRANT AGENT . . . . . . . . . . . 9
SECTION 5.1. Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.2. Conditions of Warrant Agent's
Obligations . . . . . . . . . . . . . . . . . . . . . . . 9
(a) Compensation and Indemnification . . . . . . . . . . . . . . . . 10
(b) Agent for the Company . . . . . . . . . . . . . . . . . . . . . 10
(c) Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(e) Certain Transactions . . . . . . . . . . . . . . . . . . . . . . 10
(f) No Liability for Interest . . . . . . . . . . . . . . . . . . . 10
(g) No Liability for Invalidity . . . . . . . . . . . . . . . . . . 11
(h) No Responsibility for Representations . . . . . . . . . . . . . 11
(i) No Implied Obligations . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.3. Resignation and Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VI.
MISCELLANEOUS . . . . . . . . . . . . . . 13
SECTION 6.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.2. Notices and Demands to the Company and
Warrant Agent . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.3. Addresses . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.4. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.5. Delivery of Prospectus . . . . . . . . . . . . . . . . . . 14
SECTION 6.6. Obtaining of Governmental Approvals . . . . . . . . . . . . 14
SECTION 6.7. Persons Having Rights under Warrant
Agreement . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.8. Headings . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.10. Inspection of Agreement . . . . . . . . . . . . . . . . . . 15
</TABLE>
ii
<PAGE>
SUN COMPANY, INC.
Form of Debt Warrant Agreement/1/
THIS WARRANT AGREEMENT dated as of __________, 199_ between Sun
Company, Inc., a Pennsylvania corporation (hereinafter called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to) and _________________________, as Warrant Agent (herein called the
"Warrant Agent").
WHEREAS, the Company has entered into an indenture (the "[Senior]
[Subordinated] Indenture") dated as of [FOR SENIOR DEBT: May 15, 1994, between
the Company and Citibank, N.A., as trustee (the "Senior Trustee")] [FOR
SUBORDINATED DEBT, May 15, 1994 between the Company and Bankers Trust Company,
as trustee (the "Subordinated Trustee")], providing for the issuance from time
to time of its unsecured [senior] [subordinated] debentures, notes or other
evidences of indebtedness (the "[Senior] [Subordinated] Debt Securities"), to be
issued in one or more series as provided in the [Senior] [Subordinated]
Indenture; [if Warrant Securities are not under same Indenture as Debt
----------------------------------------------------------
Securities to which they are attached -- and an Indenture (the "[Senior]
- -------------------------------------
[Subordinated] Indenture," the Senior and Subordinated Indentures being referred
to collectively as the "Indentures") dated as of ____________ between the
Company and ____________________, as trustee (the "[Senior] [Subordinated]
Trustee," (the Senior and Subordinated Trustees being referred to collectively
as the "Trustee"), providing for the issuance from time to time of its [senior]
[subordinated] debentures, notes or other evidences of indebtedness (the
"[Senior] [Subordinated] Debt Securities", the [Senior] and [Subordinated] Debt
Securities being referred to collectively as the "Debt Securities"), to be
issued in one or more series as provided in the [_______________] Indenture];
and
WHEREAS, the Company proposes to sell [if Warrants are sold with Debt
------------------------------
Securities or Preference Stock -- [title of Debt Securities or Preference Stock
- ------------------------------
being offered] (the "Offered Securities") with] warrant certificates evidencing
one or more warrants (the "Warrants" or individually a "Warrant") representing
the right to purchase [title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
- -----------------------
/1/ Complete or modify the provisions of this Form as appropriate to reflect
the terms of the Warrants, Warrant Securities and Offered Securities. Monetary
amounts may be in U.S. dollars or in foreign currency or European Currency Units
("ECU").
1
<PAGE>
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone -- Upon
-------------------- -----------------
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
--
Offered Securities and Warrants -- Warrants shall be [initially] issued in
- -------------------------------
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after _______________ (the "Detachable Date")] [and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of ____________. [If Offered Securities and
-------------------------
Warrants -- Warrant Certificates shall be initially issued in units with the
- --------
Offered Securities and each Warrant Certificate included in such a unit shall
evidence __________ Warrants for each [__________ principal amount] [________
shares] of Offered Securities included in such unit.]
SECTION 1.2. Execution and Delivery of Warrant Certificates. Each
----------------------------------------------
Warrant Certificate, whenever issued, shall be in [registered] [bearer] form
substantially in the form set forth in Exhibit A hereto, shall be dated
____________ and may have such letters, numbers, or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be executed on behalf of the Company by [the Chairman of the Board, the
President, any Vice Chairman, any Group Executive, any Executive Vice President,
any Senior Managing Director, any Senior Vice President, or any Vice President
and by the Secretary or any Assistant Secretary] under its corporate seal
reproduced thereon. Such signatures may be manual or facsimile signatures of
such authorized officers and may be imprinted or otherwise reproduced in the
Warrant
2
<PAGE>
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificates shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean [the bearer of such Warrant Certificate] [any person in whose name at
the time any Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose] [If Offered Securities and
-------------------------
Warrants are not immediately detachable -- or [the bearer] [upon the register]
- ---------------------------------------
of the Offered Securities prior to the Detachable Date. [Prior to the
Detachable Date, the Company will, or will cause the registrar of the Offered
Securities to, make available at all times to the Warrant Agent such information
as to holders of the Offered Securities with Warrants as may be necessary to
keep the Warrant Agent's records up to date]].
SECTION 1.3. Issuance of Warrant Certificates. Warrant Certificates
--------------------------------
evidencing the right to purchase an aggregate principal amount not exceeding
____________ aggregate principal amount of Warrant Securities (except as
provided in Sections 1.4, 2.3(c), 3.2 and ____) may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Warrant Agreement
or from time to time thereafter. The Warrant Agent shall, upon receipt of
Warrant Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
__________ principal amount of Warrant Securities and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such issuance
of the Warrant Certificates, the Warrant Agent shall countersign a Warrant
Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant
3
<PAGE>
Certificates or in connection with their transfer, as hereinafter provided or as
provided in Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the preparation
-----------------------------
of definitive Warrant Certificates, the Company may execute, and upon the order
of the Company, the Warrant Agent shall authenticate and deliver, temporary
Warrant Certificates which are printed, lithographed, typewritten, mimeographed
or otherwise produced substantially of the tenor of the definitive Warrant
Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or _______________], without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Warrant Certificates the
Company shall execute and the Warrant Agent shall authenticate and deliver in
exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. During the period from ____________,
-------------
through and including ____________, the exercise price of each Warrant shall be
__________ plus [accrued amortization of the original issue discount] [accrued
interest] from ____________. During the period from __________, through and
including __________, the exercise price of each Warrant will be __________ plus
[accrued amortization of the original issue discount] [accrued interest] from
____________. [In each case, the original issue discount will be amortized at a
____% annual rate, computed on an annual basis using the "interest" method and
using a 360-day year consisting of twelve 30-day months]. Such purchase price
of Warrant Securities is referred to in this Agreement as the "Warrant Price".
[The original issue discount for each __________ principal amount of Warrant
Securities is ____________.]
SECTION 2.2. Duration of Warrants. Each Warrant may be exercised in
--------------------
whole at any time, as specified herein, on or after [the date thereof]
[____________] and at or before 5 P.M.,
4
<PAGE>
New York City time, on ____________ [or such later date as the Company may
designate, by notice to the Warrant Agent and the holders of Warrant
Certificates mailed to their addresses as set forth in the record books of the
Warrant Agent] (the "Expiration Date"). Each Warrant not exercised at or before
5 P.M., New York City time, on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificate evidencing such Warrant under
this Agreement shall cease.
SECTION 2.3. Exercise of Warrants. (a) During the period specified
--------------------
in Section 2.2 any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant Certificate
and by paying in full, in [lawful money of the United States of America]
[applicable currency,] [in cash or by certified check or official bank check or
by bank wire transfer, in each case,] [by bank wire transfer] [in immediately
available funds] the Warrant Price for each Warrant exercised, to the Warrant
Agent at its corporate trust office [or at ____________], provided that such
exercise is subject to receipt within five business days of such [payment] [wire
transfer] by the Warrant Agent of the Warrant Certificate with the form of
election to purchase Warrant Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed [including any
applicable certifications if the Warrant Securities are issuable in bearer
form]. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it [if non-dollar denominated
-------------------------
funds -- or in such other account designated by the Company] and shall advise
- -----
the Company by telephone at the end of each day on which a [payment] [wire
transfer] for the exercise of Warrants is received of the amount so deposited to
its account. The Warrant Agent shall promptly confirm such telephone advice to
the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the [Trustee under the Indenture relating to
the Warrant Securities] of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such holder is
entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise, and (iv)
such other information as the Company or such Trustee shall reasonably require.
(c) As promptly as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled, in fully
registered form, registered in such name or names as may be directed by such
5
<PAGE>
holder. If fewer than all of the Warrants evidenced by such Warrant Certificate
are exercised, the Company shall execute, and an authorized officer of the
Warrant Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing the number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.1. No Rights as Warrant Securityholder Conferred by
------------------------------------------------
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
- --------------------------------
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of principal of, premium, if any, or interest on Warrant Securities or
to enforce any of the covenants in the Indenture relating to the Warrant
Securities.
SECTION 3.2. Lost, Stolen, Mutilated or Destroyed Warrant
--------------------------------------------
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
- ------------
satisfactory to it and the Company of the Ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of
6
<PAGE>
this Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
SECTION 3.3. Holder of Warrant Certificate May Enforce Rights.
------------------------------------------------
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.4. Consolidation, Merger, Sale or Conveyance. If at any
-----------------------------------------
time there shall be a consolidation merger, sale or conveyance to which Article
___ of the Indenture relating to the Warrant Securities applies, then in any
such event the successor or assuming corporation referred to therein shall
succeed to and be substituted for the Company, with the same effect, subject to
such Indenture, as if it had been named herein and in the Warrant as the
Company; the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which theretofore shall not have been signed by the
Company, and may execute and deliver Warrant Securities in its own name pursuant
to such Indenture, in fulfillment of its obligations to deliver Warrant
Securities upon exercise of the Warrants. All the Warrants so issued shall in
all respects have the same legal rank and benefit under this Agreement as the
Warrants theretofore or thereafter issued in accordance with the terms of this
Agreement as though all of such Warrants had been issued at the date of the
execution hereof. In any case of any such consolidation, merger, sale or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel
(which may be counsel to the Company) as conclusive evidence that any such
consolidation, merger, sale or conveyance complies with the provisions of this
Section 3.4 and such Indenture.
7
<PAGE>
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
SECTION 4.1. Exchange and Transfer of Warrant Certificates, [If
--------------------------------------------- --
Offered Securities with Warrants which are immediately detachable -- Upon] [If
- ----------------------------------------------------------------- --
Offered Securities with Warrants which are not immediately detachable -- Prior
- ---------------------------------------------------------------------
to the Detachable Date a Warrant Certificate may be exchanged or transferred
only together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security on the register of the Offered Securities
shall operate also to transfer the related Warrant Certificates. After the
Detachable Date upon] surrender at the corporate trust office of the Warrant
Agent [or ________], Warrant Certificates evidencing Warrants may be exchanged
for Warrant Certificates in other denominations evidencing such Warrants [or the
transfer thereof may be registered in whole or in part]; provided that such
other Warrant Certificates evidence the same aggregate number of Warrants as the
Warrant Certificates so surrendered. [The Warrant Agent shall keep, at its
corporate trust office [and at ________], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or ________] for exchange or registration of transfer, properly
endorsed or accompanied by appropriate instruments of registration of transfer
and written instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent.] No service charge shall be made for any exchange [or
registration of transfer] of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange [or
registration of transfer]. Whenever any Warrant Certificates are so surrendered
for exchange [or registration of transfer], an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange [or registration of transfer] which will result
in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange [or registration of transfer] of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Warrant
Certificate surrendered for such exchange [or registration of transfer].
8
<PAGE>
SECTION 4.2. Treatment of Holders of Warrant Certificates. [If
-------------------------------------------- --
Offered Securities and Warrants are not immediately detachable -- Prior to the
- --------------------------------------------------------------
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to exercise
the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date,] [if
--
registered Warrants -- and prior to due presentment of a Warrant Certificate for
- -------------------
registration for registration of transfer,] the Company, the Warrant Agent and
all other persons may treat the holder of a Warrant Certificate [if registered
-------------
Warrants -- in whose name the Warrant Certificate is registered] as the owner
- --------
thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
SECTION 4.3. Cancellation of Warrant Certificates. Any Warrant
------------------------------------
Certificates surrendered for exchange[, registration of transfer] or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.1. Warrant Agent. The Company hereby appoints
-------------
__________________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth; and __________________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
SECTION 5.2. Conditions of Warrant Agent's Obligations. The Warrant
-----------------------------------------
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
9
<PAGE>
(a) Compensation and Indemnification. The Company agrees
--------------------------------
promptly to pay the Warrant Agent the compensation to be agreed upon with
the Company for all services rendered by the Warrant Agent and to reimburse
the Warrant Agent for reasonable out-of-pocket expenses (including counsel
fees) incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part
of the Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, as well as the costs and expenses of defending
against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
---------------------
Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligations or relationship of agency or trust for or with any of the
holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
-------
satisfactory to it (which may be counsel to the Company), and the written
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
---------
incur no liability for or in respect of any action taken or thing suffered
by it in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
--------------------
directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act as depositary, trustee or agent
for, any committee or body of holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in the Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
-------------------------
Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by
10
<PAGE>
it pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have
---------------------------
no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent
-------------------------------------
shall not be responsible for any of the recitals or representations herein
or in the Warrant Certificates (except as to the Warrant Agent's counter-
signature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
----------------------
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take
any action hereunder which may involve it in any expense or liability, the
payment of which within a reasonable time is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or
under any duty or responsibility for the use by the Company of any of the
Warrant Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent
shall have no duty or responsibility in case of any default by the Company
in the performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand
upon the Company.
SECTION 5.3. Resignation and Appointment of Successor. (a) The
----------------------------------------
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying
11
<PAGE>
such removal and the date when it shall become effective. Such resignation or
removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust company
authorized under the laws of the jurisdiction of its organization to exercise
corporate trust powers) and the acceptance of such appointment by such successor
Warrant Agent. The obligation of the Company under Section 5.2(a) shall
continue to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law; or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant Agent
or of its property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
12
<PAGE>
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party or any corporation to
which the Warrant Agent shall be a party ,or any corporation to which
substantially all the assets and business of the Warrant Agent shall have been
transferred, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. Amendment. (a) This Agreement and the Warrant
---------
Certificates may be amended by the Company and the Warrant Agent, without the
consent of the holder of any Warrant Certificate, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained herein or therein, for the purpose of
appointing a successor Warrant Agent in accordance with Section 5.3, or in any
other manner which the Company and the Warrant Agent may deem necessary or
desirable and which will not materially and adversely affect the interests of
the holders of the Warrant Certificates.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of not fewer than a
majority in number of the then outstanding unexercised Warrants affected by such
modification or amendment, for any purpose; provided, however, that no such
-------- -------
modification or amendment that decreases or increases the Exercise Price,
shortens the period of time during which the Warrants may be exercised or
otherwise materially and adversely affects the exercise rights of the Holders or
reduces the percentage of outstanding Warrants the consent of the holder of
which is required for modification or amendment of this Agreement or the Warrant
Certificates, may be made without the consent of each holder affected thereby.
SECTION 6.2. Notices and Demands to the Company and Warrant Agent.
----------------------------------------------------
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.3. Addresses. Any communication from the Company to the
---------
Warrant Agent with respect to this Agreement shall be addressed to
____________________________________, _____________, Attention:
____________________ and any communication from the Warrant Agent to the Company
with respect
13
<PAGE>
to this Agreement shall be addressed to Sun Company, Inc., Ten Penn Center, 1801
Market Street, Philadelphia, Pennsylvania 19103-1699, Attention: Corporate
Secretary (or such other address as shall be specified in writing by the Warrant
Agent or by the Company).
SECTION 6.4. Applicable Law. The validity, interpretation and
--------------
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.5. Delivery of Prospectus. The Company will furnish to the
----------------------
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.6. Obtaining of Governmental Approvals. The Company will
-----------------------------------
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.7. Persons Having Rights under Warrant Agreement. Nothing
---------------------------------------------
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.8. Headings. The descriptive headings of the several
--------
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.9. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
14
<PAGE>
SECTION 6.10. Inspection of Agreement. A copy of this Agreement
-----------------------
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective duly authorized officers, and their respective
corporate seals to be affixed hereunto, and the same to be attested by their
respective Secretaries or one of their respective Assistant Secretaries, all as
of the day and year first above written.
SUN COMPANY, INC.
By _____________________
Title:
Attest:
_____________________
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
_____________________
Title:
15
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Securities Prior to _______________ this Warrant
with Warrants which are not Certificate cannot be transferred or
immediately detachable. exchanged unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants are not Prior to _______________, Warrants
---------------------------------- evidence by this Warrant Certificate
immediately exercisable. cannot be exercised.]
- ----------------------
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
SUN COMPANY, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. NEW YORK CITY TIME, ON _______________
No. __________ __________ Warrants
This certifies that [the bearer is the]
[_________________________________ or registered assigns is the registered]
owner of the above indicated number of Warrants, each Warrant entitling such
owner [if Offered Securities with Warrants which are not immediately detachable
- -- , subject to the [bearer] [registered owner] qualifying as a "holder" of this
Warrant Certificate, as hereinafter defined] to purchase, at any time [after 5
P.M., New York City time, on _______________ and] on or before 5 P.M., New York
City time, on _______________, __________ principal amount of [Title of Warrant
Securities] (the "Warrant Securities"), of Sun Company, Inc. (the "Company"),
issued and to be issued under the Indenture (as hereinafter defined), on the
following basis: during the period from _______________, through and including
_______________ the exercise price of each Warrant will be ________ plus
[accrued amortization of the original issue discount] [accrued interest] from
_______________; during the period from _______________, through and including
_______________, the exercise price of each Warrant will be ________ plus
[accrued amortization of the original issue discount] [accrued interest] from
_______________; [in each case, the original issue discount will be amortized at
a ___% annual rate, computed on an annual basis using the "interest" method and
using a 360-day year consisting of twelve 30-day months] (the "Warrant Price").
[The original issue discount for each ________
A-1
<PAGE>
principal amount of Warrant Securities is ________.] Any Warrants not exercised
on or before 5 P.M., New York City time, on ______________ shall become void and
at such time all rights of the holder of this Warrant Certificate shall cease.
The holder may exercise the Warrants evidenced hereby by providing certain
information set forth on the back hereof, including any applicable
certifications if the Warrant Securities are issuable in bearer form, and by
paying in full [in lawful money of the United States of America] [applicable
currency] [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in immediately available funds,
the Warrant Price for each Warrant exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of
____________________, or its successor as warrant agent (the "Warrant Agent"),
[or ____________] currently at the address specified on the reverse hereof, and
upon compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities
---------------------
with Warrants which are not immediately detachable -- , prior to ____________
- --------------------------------------------------
(the "Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] [the bearer of this Warrant Certificate] [the person in
whose name at the time this Warrant Certificate shall be registered upon the
books to be maintained by the Warrant Agent for that purpose pursuant to Section
4.1 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in denominations
of ____________ and any integral multiples thereof. Upon any exercise of fewer
than all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing the number of
Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ____________ (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at _______________].
A-2
<PAGE>
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an indenture (the "Indenture"), dated as of [FOR SENIOR DEBT:
May 15, 1994, between the Company and Citibank, N.A.] [FOR SUBORDINATED DEBT:
May 15, 1994, between the Company and Bankers Trust Company], as trustee (the
"Trustee"), and will be subject to the terms and provisions contained in the
Indenture. Copies of the Indenture and the form of the Warrant Securities are
on file at the corporate trust office of the Trustee [and at _______________].
[If Offered Securities with Warrants which are not immediately
-------------------------------------------------------------
detachable -- Prior to ____________, this Warrant Certificate may be exchanged
- ----------
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this] [if Offered Securities with
--------------------------
Warrants which are immediately detachable -- Transfer of this] Warrant
- -----------------------------------------
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ____________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.] [effected by delivery and the Company and the Warrant Agent may
treat the bearer hereof as the owner for all purposes.]
[If Offered Securities with Warrants which are not immediately
-------------------------------------------------------------
detachable -- Except as provided in the immediately preceding paragraph, after]
- ----------
[If Offered Securities with Warrants which are immediately detachable or
-----------------------------------------------------------------------
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
- --------------
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ____________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of principal of, premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture.
A-3
<PAGE>
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ____________, 199_.
SUN COMPANY, INC.
By: _____________________
Attest:
_____________________________
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: _________________________
Authorized Signature
A-4
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
[Dollars] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer] [by bank wire transfer] [in immediately
available funds] the Warrant Price in full for Warrants exercised to
_____________________, [corporate trust department] [insert address of Warrant
Agent], Attn. __________ [or ____________], which [payment] [wire transfer] must
specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below
and present this Warrant Certificate in person or by mail (certified or
registered mail is recommended) to the Warrant Agent at the appropriate address
set forth below. This Warrant Certificate, completed and duly executed, must be
received by the Warrant Agent within five business days of the [payment] [wire
transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ____________
Warrants, evidenced by this Warrant Certificate, to purchase ____________
principal amount of the [Title of Warrant Securities ] (the "Warrant
Securities") of Sun Company, Inc. and represents that he has tendered payment
for such Warrant Securities in [Dollars] [applicable currency] [in cash or by
certified check or official bank check or by bank wire transfer, in each case]
[by bank wire transfer] in immediately available funds to the order of Sun
Company, Inc. c/o _________________________, [address of Warrant Agent], in the
amount of ____________ in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Securities be in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
A-5
<PAGE>
Dated: ____________________ Name__________________________
______________________________ Address_______________________
(Insert Social Security or
Other Identifying Number of _______________________
Holder)
Signature_____________________
[If registered Warrant -- [If registered Warrant --
Signature Guaranteed (Signature must conform
_____________________________] in all respects to name
of holder as specified on
face of this Warrant
Certificate and must bear
a signature guarantee by
a bank, trust company or
member broker of the New
York, Midwest or Pacific
Stock Exchanges]
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ___________________________________
___________________________________
___________________________________
___________________________________
By mail at ___________________________________
___________________________________
___________________________________
___________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificated evidencing unexercised Warrants -- complete as
appropriate.]
A-6
<PAGE>
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby sells,
assigns and transfers unto
______________________________ ______________________________
(Please print name) (Please insert social security
or other identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated:
______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by
a bank, trust company or
member broker of the New York,
Midwest or Pacific Stock
Exchange
Signature Guaranteed
_____________________
A-7
<PAGE>
EXHIBIT 4.4
===============================================================================
SUN COMPANY, INC.
and
[WARRANT AGENT]
As Warrant Agent
________________
Warrant Agreement -- [Common Stock]
[Preference Stock]/*/
Dated as of , 199_
_________________
===============================================================================
/*/ Options Represented By Bracketed Or Blank Sections Herein Shall Be
Determined In Conformity With The Applicable Prospectus Supplement Or
Supplements
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES. . . . . . . . 1
SECTION 1.1. Issuance of Warrants. . . . . . . . . . . . . . . . . 1
SECTION 1.2. Execution and Delivery of Warrant
Certificates. . . . . . . . . . . . . . . . . . . . 2
SECTION 1.3. Issuance of Warrant Certificates. . . . . . . . . . . 3
SECTION 1.4. Temporary Warrant Certificate . . . . . . . . . . . . 3
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS. . . . . . . . . . . 4
SECTION 2.1. Warrant Price . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.2. Duration and Exercise of Warrants . . . . . . . . . . 4
SECTION 2.3. No Fractional Shares to Be Issued . . . . . . . . . . 6
SECTION 2.4. Covenant to Reserve Shares for
Issuance on Exercise. . . . . . . . . . . . . . . . 7
SECTION 2.5. Share Record Date . . . . . . . . . . . . . . . . . . 8
SECTION 2.6. Rights Upon Dissolution or Liquidation. . . . . . . . 8
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
[COMMON] [PREFERRED] SHARES PURCHASABLE. . . . . . 9
SECTION 3.1. Adjustment of Warrant Price . . . . . . . . . . . . . 9
SECTION 3.2. Adjustment of [Common] [Preferred]
Shares Purchasable Upon
Exercise of Warrants. . . . . . . . . . . . . . . . 15
SECTION 3.3. Statements on Warrants. . . . . . . . . . . . . . . . 15
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES . . . . . . . 16
SECTION 4.1. No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates. . . . . . . . . . . . . . . . . . . . 16
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed
Warrant Certificates. . . . . . . . . . . . . . . . 16
SECTION 4.3. Holder of Warrant Certificate May
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Enforce Rights. . . . . . . . . . . . . . . . . . . 17
SECTION 4.4. Reclassification, Consolidation, Merger,
Sale or Conveyance. . . . . . . . . . . . . . . . . 17
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES. . . . . . . . . . 18
SECTION 5.1. Exchange and Transfer of Warrant
Certificates. . . . . . . . . . . . . . . . . . . . 18
SECTION 5.2. Treatment of Holders of Warrant
Certificates. . . . . . . . . . . . . . . . . . . . 19
SECTION 5.3. Cancellation of Warrant Certificates. . . . . . . . . 20
ARTICLE VI.
CONCERNING THE WARRANT AGENT. . . . . . . . . 20
SECTION 6.1. Warrant Agent . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.2. Conditions of Warrant Agent's
Obligations . . . . . . . . . . . . . . . . . . . . 20
(a) Compensation and Indemnification . . . . . . . . . . . . . 20
(b) Agent for the Company. . . . . . . . . . . . . . . . . . . 21
(c) Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . 21
(d) Documents. . . . . . . . . . . . . . . . . . . . . . . . . 21
(e) Certain Transactions . . . . . . . . . . . . . . . . . . . 21
(f) No Liability for Interest. . . . . . . . . . . . . . . . . 21
(g) No Liability for Invalidity. . . . . . . . . . . . . . . . 21
(h) No Responsibility for Representations. . . . . . . . . . . 21
(i) No Implied Obligations . . . . . . . . . . . . . . . . . . 22
SECTION 6.3. Resignation and Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VII.
REDEMPTION; ACCELERATED EXPIRATION DATE. . . . . . 24
SECTION 7.1. Redemption. . . . . . . . . . . . . . . . . . . . . . 24
SECTION 7.2. Accelerated Expiration Date . . . . . . . . . . . . . 24
SECTION 7.3. [INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . 25
SECTION 7.4. Notice of Proposed Actions. . . . . . . . . . . . . . 25
ARTICLE VIII.
MISCELLANEOUS . . . . . . . . . . . . 26
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 8.1. Amendment . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 8.2. Notices and Demands to the Company and
Warrant Agent . . . . . . . . . . . . . . . . . . . 26
SECTION 8.3. Addresses . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 8.4. Applicable Law. . . . . . . . . . . . . . . . . . . . 27
SECTION 8.5. Delivery of Prospectus. . . . . . . . . . . . . . . . 27
SECTION 8.6. Obtaining of Governmental Approvals . . . . . . . . . 27
SECTION 8.7. Persons Having Rights under Warrant
Agreement . . . . . . . . . . . . . . . . . . . . . 27
SECTION 8.8. Headings. . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 8.9. Counterparts. . . . . . . . . . . . . . . . . . . . . 27
SECTION 8.10. Inspection of Agreement . . . . . . . . . . . . . . . 28
</TABLE>
iii
<PAGE>
SUN COMPANY, INC.
Form of [Common Stock][Preference Stock]
Warrant Agreement/1/
THIS WARRANT AGREEMENT dated as of ____________, 199_ between Sun
Company, Inc., a Pennsylvania corporation (the "Company,") and [Warrant Agent],
as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold with Debt
------------------------------
Securities or Preference Stock -- [title of Debt Securities or Preference Stock
- ------------------------------
being offered] (the "Offered Securities") with warrant certificates evidencing
one or more warrants (the "Warrants" or individually a "Warrant") representing
the right to purchase [ ] of the Company's Common Stock, par value $1 per
share (the "Common Shares"), [ ] of the Company's Cumulative Preference Stock
(the "Preferred Shares" and collectively, with the Common Shares, the "Warrant
Securities"), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone -- Upon
-------------------- -----------------
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
--
Offered Securities and Warrants -- Warrants shall be [initially] issued in
- -------------------------------
connection with the issuance of
- ------------------
/1/ Complete or modify the provisions of this Form as appropriate to reflect
the terms of the Warrants, Warrant Securities and Offered Securities.
Monetary amounts may be in U.S. dollars or in foreign currency or
European Currency Units ("ECU").
1
<PAGE>
the Offered Securities [but shall be separately transferable on and after
_______________ (the "Detachable Date")][and shall not be separately
transferable] and each Warrant Certificate shall evidence one or more Warrants.]
Each Warrant evidenced thereby shall represent the right, subject to the
provisions contained herein and therein, to purchase __________ Warrant
Securities. [If Offered Securities and Warrants -- Warrant Certificates shall
----------------------------------
be initially issued in units with the Offered Securities and each Warrant
Certificate included in such a unit shall evidence __________ Warrants for each
________ shares of Offered Securities included in such unit.]
SECTION 1.2. Execution and Delivery of Warrant Certificates. Each
----------------------------------------------
Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated ____________ and may
have such letters, numbers, or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be executed on behalf of the Company by
[its Chairman of the Board, the President, any Vice Chairman, any Executive Vice
President, any Senior Vice President, or any Vice President and by the Secretary
or any Assistant Secretary] under its corporate seal reproduced thereon. Such
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced in the Warrant Certificates. The seal
of the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of
2
<PAGE>
the Company by such persons as, at the actual date of the execution of such
Warrant Certificate, shall be the proper officers of the Company, although at
the date of the execution of this Agreement any such person was not such
officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that purpose
[If Offered Securities and Warrants are not immediately detachable -- or upon
-----------------------------------------------------------------
the register of the Offered Securities prior to the Detachable Date. Prior to
the Detachable Date, the Company will, or will cause the registrar of the
Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date].
SECTION 1.3. Issuance of Warrant Certificates. Warrant Certificates
--------------------------------
evidencing the right to purchase an aggregate total number not exceeding
____________ Warrant Securities (except as provided in Sections 1.4, 3.1 and
4.2) may be executed by the Company and delivered to the Warrant Agent upon the
execution of this Warrant Agreement or from time to time thereafter. The
Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evidencing Warrants
representing the right to purchase up to __________ Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as hereinafter provided or as
provided in Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the preparation
-----------------------------
of definitive Warrant Certificates, the Company may execute, and upon the order
of the Company, the Warrant Agent shall authenticate and deliver, temporary
Warrant Certificates which are printed, lithographed, typewritten, mimeographed
or otherwise produced substantially of the tenor of the definitive Warrant
Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender
3
<PAGE>
of the temporary Warrant Certificates at the corporate trust office of the
Warrant Agent [or _______________], without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Warrant Certificates the
Company shall execute and the Warrant Agent shall authenticate and deliver in
exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. (a) During the period from ________,
-------------
through and including ______________, the exercise price of each Warrant will be
______________. During the period from _______________, through and including
________________, the exercise price of each Warrant will be ________________.
Such purchase price of Warrant Securities is referred to in this Warrant
Agreement as the "Warrant Price". No adjustment shall be made for any dividends
on any Warrant Securities issuable upon exercise of any Warrants.
(b) Warrants may be exercised by the holders thereof at any time, at
the Warrant Price then in effect, when the Warrant Securities are registered
pursuant to an effective registration statement under the Securities Act.
Warrants shall in no event be exercisable for the purchase of Warrant Securities
at any time when such Warrant Securities are not registered pursuant to an
effective registration statement under the Securities Act.
The Company shall be required to register the Warrant Securities, or
holders will have such other rights, only as provided in Section 2.3.
The Company shall promptly give all holders notice of the
effectiveness of a registration statement in respect of Warrant Securities and
of any subsequent lapses in the effectiveness of such registration statement.
SECTION 2.2. Duration and Exercise of Warrants. (a) The registered
---------------------------------
holder of any Warrant Certificate may exercise the Warrants evidenced thereby in
whole or in part at any time after ___________ __, ____ upon surrender of the
Warrant Certificate with the form of election to purchase on the reverse side
thereof duly executed, to the Warrant Agent at the principal office of the
Warrant Agent in the Borough of Manhattan, City and State of
4
<PAGE>
New York, together with payment of the Warrant Price for each
[Common][Preferred] Share as to which the Warrants are exercised, at or prior to
5:00 P.M. (New York time) on the earliest of (i) _______ __, ____ (the
"Scheduled Expiration Date"), (ii) the Accelerated Expiration Date as defined in
Section 7.1 hereof, or (iii) the business day immediately preceding the
Redemption Date as defined in Section 7.1 hereof. Each Warrant not exercised at
or prior to 5:00 P.M. New York time on the earliest of (i) the Scheduled
Expiration Date, (ii) the Accelerated Expiration Date, or (iii) the business day
immediately preceding the Redemption Date shall become void and all rights of
the holder of the Warrant Certificate evidencing such Warrant under this
Agreement or the Warrant Certificate shall cease.
(b) The Warrant Price for each [Common][Preferred] Share pursuant to
the exercise of a Warrant shall initially be ____, shall be subject to
adjustment as provided in Article VII hereof, and shall be payable in lawful
money of the United States of America.
(c) Upon receipt of a Warrant Certificate, with the form of election
to purchase on the reverse side thereof, duly executed, accompanied by payment
of the Warrant Price for the shares to be purchased and an amount equal to any
applicable transfer tax in cash, or by certified check or official bank check,
or by bank wire transfer, in each case in immediately available funds payable to
the order of the Company, the Warrant Agent shall thereupon promptly (i)
requisition from any transfer agent of the [Common][Preferred] Shares of the
Company certificates for the number of whole [Common][Preferred] Shares to be
purchased and, when appropriate, for the number of fractional shares to be sold
by the Warrant Agent, and the Company hereby irrevocably authorizes its transfer
agent to comply with all such requests, (ii) when appropriate, requisition from
the Company the amount of cash to be paid in lieu of issuance of fractional
shares or Warrants, and (iii) promptly after receipt of such certificates cause
the same to be delivered to or upon the order of the registered holder of such
Warrant Certificate, registered in such name or names as may be designated by
such holder, and , when appropriate, after receipt promptly deliver such cash to
or upon the order of the registered holder of such Warrant Certificate.
(d) In case the registered holder of any Warrant Certificate shall
exercise less than all the Warrants evidenced thereby, a new Warrant Certificate
evidencing Warrants equivalent to the Warrants remaining unexercised shall be
issued by the Warrant Agent to the registered holder of such Warrant Certificate
or to his duly authorized assigns, subject to the provisions of Section 2.4
hereof.
5
<PAGE>
(e) The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and concurrently pay to the Company all monies
received for the purchase of [Common][Preferred] Shares through the exercise of
Warrants.
(f) The Company shall not be required to pay any stamp or other tax or
governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
SECTION 2.3. No Fractional Shares to Be Issued.
---------------------------------
(a) Notwithstanding anything to the contrary contained in this
Agreement, if the number of [Common][Preferred] Shares purchasable on the
exercise of each Warrant is not a whole number, the Company shall not be
required to issue any fraction of a [Common][Preferred] Share or to distribute
stock certificates that evidence fractional [Common][Preferred] Shares or to
issue a Warrant Certificate representing a fractional Warrant upon exercise of
any Warrants. If Warrant Certificates evidencing more than one Warrant shall be
surrendered for exercise at one time by the same holder, the number of full
shares which shall be issuable upon exercise thereof shall be computed on the
basis of the aggregate number of Warrants so surrendered. [If any fraction of a
[Common][Preferred] Share would, except for the provisions of this Section 2.3,
be issuable on the exercise of any Warrant or Warrants, the Company shall
purchase such fraction for an amount in cash equal to such fraction of the then
current market price of a [Common][Preferred] Share. The Warrant holders, by
their acceptance of the Warrant Certificates, expressly waive their right to
receive any fraction of a [Common][Preferred] Share or a stock certificate
representing a fraction of a [Common] [Preferred] Share.]
(b) If the number of shares purchasable upon the exercise of each
Warrant is adjusted pursuant to Section 3.1(l), the Company shall nonetheless
not be required to issue fractions of shares upon exercise of the Warrants or to
distribute share certificates which evidence fractional shares, nor shall the
Company be required to make any cash adjustment in respect of a fractional
interest in a share, but the fractional interest to which any person is entitled
shall be sold in the manner set forth in subsection (c) of this Section 2.3 by
the Warrant Agent, acting as agent for the person entitled to such fractional
interest, except as otherwise provided in such subsection.
6
<PAGE>
(c) The Warrant Agent shall remit to such person the proceeds of the
sale of any such fractional interest sold by it as such agent. Fractional
interests shall be non-transferable except by or to the Warrant Agent acting as
herein authorized. The Warrant Agent may sell fractional interests on the basis
of market prices of the Warrants or [Common][Preferred] Shares as determined by
the Warrant Agent in its sole discretion. In lieu of making an actual sale of a
fractional interest, the Company may authorize the Warrant Agent to value
fractional interests without actual sale on the basis of the current market
price of the Warrants or [Common][Preferred] Shares as determined by the Warrant
Agent in its sole discretion.
SECTION 2.4. Covenant to Reserve Shares for Issuance on Exercise.
---------------------------------------------------
The Company covenants that it will at all times reserve and keep available out
of its authorized but unissued Warrant Securities or its authorized and issued
Warrant securities held in its Treasury, solely for the purpose of issue upon
exercise of Warrants, the full number of Warrant Securities, if any, then
issuable if all outstanding Warrants then exercisable were to be exercised. The
Company covenants that, subject to payment of the Warrant Price, all
[Common][Preferred] Shares which shall be so issuable shall be duly and validly
issued and fully paid and nonassessable.
[The Company hereby authorizes and directs its current and future
transfer agents for the [Common][Preferred] Shares and for any shares of the
Company's capital stock issuable upon the exercise of any of the Warrants at all
times to reserve such number of authorized shares as shall be requisite for such
purpose. The Company will supply such transfer agents with duly executed stock
certificates for such purposes and will provide or otherwise make available any
cash which may be payable as provided in this Article II.]
The Company covenants that if any [Common][Preferred] Shares required
to be reserved for purposes of exercise of Warrants require, under any federal
or state law or rule or regulation of any national securities exchange,
registration with or approval of any governmental authority, or listing on any
national securities exchange before such shares may be issued upon exercise, the
Company will in good faith and as expeditiously as possible endeavor to cause
such shares to be duly registered, approved or listed on the relevant national
securities exchange, as the case may be; provided, however, that in no event
-------- -------
shall such [Common][Preferred] Shares be issued, and the Company is hereby
authorized to suspend the exercise of all Warrants, for the period during which
such registration, approval or listing is required but not in effect.
The Company further covenants and agrees that it will pay when due and
payable any and all Federal and state transfer
7
<PAGE>
taxes and charges which may be payable in respect of the issuance or delivery of
the Warrant Certificates or of any [Common][Preferred] Shares upon the exercise
of Warrants. The Company shall not, however, be required to pay any transfer
tax which may be payable in respect of any transfer involved in the transfer or
delivery of Warrant Certificates or the issuance or delivery of Certificates for
[Common][Preferred] Shares in a name other than that of the registered holder of
the Warrant Certificate evidencing Warrants surrendered for exercise or to issue
or deliver any certificates for [Common][Preferred] Shares upon the exercise of
any Warrants until any such tax shall have been paid (any such tax being payable
by the holder of such Warrant Certificate at the time of surrender) or until it
has been established to the Company's satisfaction that no such tax is due.
SECTION 2.5. Share Record Date. Each person in whose name any
-----------------
certificate for [Common][Preferred] Shares is issued upon the exercise of
Warrants shall for all purposes be deemed to have become the holder of record of
the [Common][Preferred] Shares represented thereby on, and such certificate
shall be dated, the date upon which the Warrant Certificate evidencing such
Warrants was duly surrendered and payment of the Warrant Price (and any
applicable transfer taxes) was made; provided, however, that if the date of such
-------- -------
surrender and payment is a date upon which the [Common][Preferred] Share
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding business day on which the [Common][Preferred] Share transfer
books of the Company are open. Prior to the exercise of the Warrants evidenced
thereby, the holder of a [Preferred][Common] Share Warrant Certificate shall not
be entitled to any rights of a shareholder of the Company with respect to shares
for which the Warrants shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
SECTION 2.6. Rights Upon Dissolution or Liquidation. Notwithstanding
--------------------------------------
any other provision of this Agreement relating to the rights of holders of
Warrant Certificates, in the event that, at any time after the date hereof,
there shall be a voluntary or involuntary dissolution, liquidation or winding up
of the Company, then the Company shall give notice by first-class mail to each
holder of an outstanding Warrant at such holder's address as it appears on the
Warrant Register at the earliest practicable time (and, in any event, not less
than twenty days before any date set for definitive action), of the date on
which such dissolution, liquidation or winding up shall take place, as the case
may be. Such notice shall also specify the date as of which
8
<PAGE>
the holders of record of [Common][Preferred] Shares or other securities, if any,
underlying the Warrants shall be entitled to exchange their shares for
securities, money or other property deliverable upon such dissolution,
liquidation or winding up, as the case may be, on which date each holder of
outstanding Warrants shall receive cash or other property (taking into account
the Warrant Price then if effect) which it would have been entitled to receive
had the Warrants been exercisable and exercised immediately prior to such
dissolution, liquidation or winding up and the rights to exercise the Warrants
shall terminate.
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
[COMMON] [PREFERRED] SHARES PURCHASABLE
SECTION 3.1. Adjustment of Warrant Price. The Warrant Price
---------------------------
specified in Section 2.1 shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Warrant Securities in shares of its Common or Preferred
Shares, (ii) subdivide the outstanding Warrant Securities into a greater number
of shares, (iii) combine the outstanding Warrant Securities into a smaller
number of shares or (iv) issue any shares of its capital stock in a
reclassification of the [Common][Preferred] Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the Warrant Price in effect at such time
shall be adjusted so that the holder of any Warrant thereafter surrendered for
exercise shall be entitled to receive the number of [Common][Preferred] shares
which he would have owned or have been entitled to receive after the happening
of any of the events described above had such Warrant been exercised immediately
prior to the record date in the case of a dividend or the effective date in the
case of a subdivision or combination. An adjustment made pursuant to this
subparagraph (a) shall become effective immediately after the record date in the
case of a dividend, except as provided in subparagraph (h) below, and shall
become effective immediately after the effective date in the case of a
subdivision or combination.
(b) In case the Company shall issue rights or warrants to all holders
of [Common][Preferred] Shares entitling them (for a period expiring within 45
days after the record date mentioned below) to subscribe for or purchase
[Common] [Preferred] Shares at a price per share less than the current market
price per [Common] [Preferred] Share (as defined for purposes of this
subparagraph (b) in subparagraph (e) below), at the record date
9
<PAGE>
for the determination of stockholders entitled to receive such rights or
warrants, the Warrant Price in effect after such record date shall be determined
by multiplying such Warrant Price by a fraction, the numerator of which shall be
the number of [Common] [Preferred] Shares outstanding at the close of business
on the record date for issuance of such rights or warrants plus the number of
[Common][Preferred] Shares which the aggregate offering price of the total
number of [Common][Preferred] Shares so offered would purchase at such current
market price, and the denominator of which shall be the number of
[Common][Preferred] Shares outstanding at the close of business on the record
date for issuance of such rights or warrants plus the number of additional
[Common][Preferred] Shares receivable upon exercise of such rights or warrants.
Such adjustment shall be made successively whenever any such rights or warrants
are issued, and shall become effective immediately, except as provided in
subparagraph (h) below, after such record date. In case such subscription price
may be paid in a consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined by the Board
of Directors of the Company, whose determination shall be conclusive, and
described in a statement filed with the Warrant Agent. [Common][Preferred]
Shares owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and in the event that
such rights or warrants are not so issued, the Warrant Price shall again be
adjusted to be the Warrant Price which would then be in effect if such record
date had not been fixed.
(c) In case the Company shall distribute to all holders of
[Common][Preferred] Shares (including any such distribution made in connection
with a consolidation or merger in which the Company is the continuing
corporation) any shares of capital stock of the Company (other than
[Common][Preferred] Shares) or evidences of its indebtedness or assets
(excluding cash dividends or distributions paid from retained earnings of the
Company or from any surplus legally available for dividends under the laws of
the state of incorporation of the Company and dividends payable in
[Common][Preferred] Shares) or rights or warrants to subscribe for or purchase
any of its securities (excluding those rights or warrants referred to in
subparagraph (b) above) (any of the foregoing being hereinafter in this
subparagraph (c) called the "Securities"), then, in each such case, unless the
Company elects to reserve such Securities (or, at the option of the Company, pay
cash as provided below) for distribution to the holders of the Warrants upon the
exercise of the Warrants so that any such holder exercising Warrants will
receive upon such exercise, in addition to the [Common][Preferred] Shares to
which such holder is entitled, the amount and kind of such Securities which such
holder would have received if such holder had, immediately prior to the record
date
10
<PAGE>
for the distribution of the Securities, exercised its Warrants for Warrant
Securities (or, at the option of the Company, a sum equal to the value thereof
at the time of distribution as determined by the Company's Board of Directors in
its sole discretion), the Warrant Price shall be adjusted so that the same shall
equal the price determined by multiplying the Warrant Price in effect
immediately prior to the date of such distribution by a fraction the numerator
of which shall be the current market price per share (as defined for purposes of
this subparagraph (c) in subparagraph (e) below) of the [Common][Preferred]
Shares on the record date mentioned above less the then fair market value (as
determined by the Board of Directors of the Company, whose determination shall
be conclusive) of the portion of the Securities so distributed allocable to one
[Common][Preferred] Share, and the denominator of which shall be the current
market price per share (determined as provided in subparagraph (e) below) of the
[Common][Preferred] Share. Such adjustment shall become effective immediately
prior to the opening of business on the day following the record date for the
determination of shareholders entitled to receive such distribution. In the
event that such distribution is not so made, the Warrant Price shall again be
adjusted to be the Warrant Price which would then be in effect if such date
fixed for the determination of shareholders entitled to receive such
distribution had not been fixed.
(d) If, pursuant to subparagraph (b) or (c) above, the number of
shares of Warrant Securities into which a Warrant is convertible shall have
been adjusted because the Company has declared a dividend, or made a
distribution, on the outstanding shares of Warrant Securities in the form of
any right or warrant to purchase securities of the Company, or the Company has
issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the Warrant Price shall forthwith be
adjusted to equal the Warrant Price that would have applied had such right or
warrant never been declared, distributed or issued.
(e) For the purposes of any computation under subparagraph (b)
above, the current market price per [Common][Preferred] Share or of any other
security (herein collectively referred to as a "security") at the date herein
specified shall be deemed to be the average of the reported last sales prices
for the [thirty consecutive Trading Days (as defined below) commencing forty-
five Trading Days (as defined below) before the date in question] [ten
consecutive Trading Days (as defined below) selected by the Company commencing
not less than twenty nor more than thirty days before the date in question].
For the purpose of any computation under subparagraph (c) above, the current
market price per security on any date shall be deemed to be the average of the
reported last sales prices for the ten consecutive Trading Days before the
date in question. The reported last sales price for each day (whether for
purposes of
11
<PAGE>
subparagraph (b) or subparagraph (c)) shall be the reported last sales price,
regular way, or, in case no sale takes place on such day, the average of the
reported closing bid and asked prices, regular way, in either case as reported
on the New York Stock Exchange Composite Tape or, if such security is not listed
or admitted to trading on the New York Stock Exchange at such time, on the
principal national securities exchange on which such security is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, if such
security is not quoted on such National Market System, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for the security on each such day
shall not have been reported through NASDAQ, the average of the bid and asked
prices for such date as furnished by any New York Stock Exchange member firm
regularly making a market in such security selected for such purpose by the
Board of Directors of the Company or a committee thereof or, if no such
quotations are available, the fair market value of such security as determined
by a New York Stock Exchange member firm regularly making a market in the
[Common][Preferred] Shares selected for such purpose by the Board of Directors
of the Company or a committee thereof. As used herein, the term "Trading Day"
with respect to a security means (x) if such security is listed or admitted for
trading on the New York Stock Exchange or another national securities exchange,
a day on which the New York Stock Exchange or such other national securities
exchange is open for business or (y) if such security is quoted on the National
Market System of the NASDAQ, a day on which trades may be made on such National
Market System or (z) otherwise, any day other than a Saturday or Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(f) No adjustment in the Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least [1%] in such
Warrant Price; provided, however, that any adjustments which by reason of this
-------- -------
paragraph (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
III shall be made to the nearest cent or to the nearest .01 of a share, as the
case may be, with one-half cent and .005 of a share, respectively, being
rounded upward. Anything in this Article III to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Warrant Price, in
addition to those required by this paragraph (f), as it in its discretion
shall determine to be advisable in order that any stock dividend, subdivision
of shares, distribution of rights or warrants to purchase stock or securities,
or distribution of other assets (other than cash
12
<PAGE>
dividends) hereafter made by the Company to its stockholders shall not be
taxable.
(g) Whenever the Warrant Price is adjusted as herein provided, the
Company shall file with the transfer agent a certificate, signed by [the
Chairman of the Board, any Vice Chairman, the President, any Group Executive,
Executive Vice President, Senior Vice President, or Vice President] of the
Company, setting forth the Warrant Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment, which
certificate shall be conclusive evidence of the correctness of such
adjustment; provided, however, that the failure of the Company to file such
-------- -------
officers' certificate shall not invalidate any corporate action by the
Company.
(h) In any case in which this Article III provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (i) issuing to
the holder of any Warrant converted after such record date and before the
occurrence of such event the additional shares of Warrant Securities or other
assets issuable upon such exercise by reason of the adjustment required by
such event over and above the Warrant Securities or other assets issuable upon
such exercise before giving effect to such adjustment and (ii) paying to such
holder any amount of cash in lieu of any fractional share; provided, however,
-------- -------
that the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such additional shares
upon the occurrence of the event requiring such adjustment.
(i) Whenever the Warrant Price is adjusted as provided in Article
III, the Company shall cause to be mailed to each holder of Warrants at its
then registered address by first-class mail, postage prepaid, a notice of such
adjustment of the Warrant Price setting forth such adjusted Warrant Price and
the effective date of such adjusted Warrant Price; provided, however, that the
-------- -------
failure of the Company to give such notice shall not invalidate any corporate
action by the Company.
(j) In the event that at any time, as a result of an adjustment made
pursuant to Section 3.1, the holder of any Warrant thereafter exercised shall
become entitled to receive any shares of capital stock of the Company other
than [Common] [Preferred] Shares, thereafter the number of such other shares
so receivable upon exercise of any Warrant shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to
the provisions with respect to the shares contained in Section 3.1(a) through
(c), inclusive and the provisions of Sections 2.3, 2.4 and 2.5 with respect to
the [Common] [Preferred] Shares shall apply on like terms to any such other
shares.
13
<PAGE>
(k) All Warrants originally issued by the Company subsequent to any
adjustment made to the Warrant Price hereunder shall evidence the right to
purchase, at the adjusted Warrant Price, the number of [Common] [Preferred]
Shares purchasable from time to time hereunder upon exercise of the Warrants,
all subject to further adjustment as provided herein.
(l) Unless the Company shall have exercised its election as provided
in Section 3.1(m), upon each adjustment of the Warrant Price as a result of
the calculations made in Section 3.1(a),(b) or (c), each Warrant outstanding
immediately prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Warrant Price, that number of shares
(calculated to the nearest hundredth) obtained by (i) multiplying the number
of shares covered by a Warrant immediately prior to this adjustment of the
number of shares by the Warrant Price in effect immediately prior to such
adjustment of the Warrant Price and (ii) dividing the product so obtained by
the Warrant Price in effect immediately after such adjustment of the Warrant
Price.
(m) The Company may elect on or after the date of any adjustment of
the Warrant Price to adjust the number of Warrants, in substitution for any
adjustment in the number of [Common] [Preferred] Shares purchasable upon the
exercise of a Warrant as provided in Section 3.2. Each of the Warrants
outstanding after such adjustment of the number of Warrants shall be
exercisable for one [Common] [Preferred] Share. Each Warrant held of record
prior to such adjustment of the number of Warrants shall become that number of
Warrants (calculated to the nearest hundredth) obtained by dividing the
Warrant Price in effect prior to adjustment of the Warrant Price by the
Warrant Price in effect after adjustment of the Warrant Price. The Company
shall make a public announcement of its election to adjust the number of
Warrants, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may be the
date on which the Warrant Price is adjusted or any day thereafter, but shall
be at least 10 days later than the date of the public announcement. Upon each
adjustment of the number of Warrants pursuant to this subsection (l) the
Company shall, as promptly as practicable, cause to be distributed to holders
of record of Warrant Certificates on such record date Warrant Certificates
evidencing, subject to Section 2.4, the additional Warrants to which such
holders shall be entitled as a result of such adjustment, or, at the option of
the Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Warrant Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by
the Company, new Warrant Certificates evidencing all the Warrants to which
such holders shall be entitled after such adjustment. Warrant Certificates so
to be distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of
14
<PAGE>
the Company, the adjusted Warrant Price) and shall be registered in the names of
the holders of record of Warrant Certificates on the record date specified in
the public announcement.
(n) Irrespective of any adjustment or change in the Warrant Price or
the number of [Common] [Preferred] Shares issuable upon the exercise of the
Warrants, the Warrant Certificates theretofore and thereafter issued may
continue to express the Warrant Price per share and the number of shares which
were expressed upon the initial Warrant Certificates issued hereunder.
(o) Anything in this Article III to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Warrant Price, in
addition to those adjustments required by this Article III, as it in its sole
discretion shall determine to be advisable in order that any consolidation or
subdivision of the [Common] [Preferred] Shares, issuance wholly for cash of
any [Common] [Preferred] Shares at less than the current market price,
issuance wholly for cash of [Common] [Preferred] Shares or securities which by
their terms are convertible into or exchangeable for Common Shares, stock
dividend, issuance of rights, options or warrants referred to hereinabove in
this Article III, or other event referred to hereinabove in this Article III
treated for Federal income tax purposes as a dividend of stock or stock
rights, hereinafter made by the Company to its common shareholders, shall not
be taxable to the recipients.
SECTION 3.2. Adjustment of [Common] [Preferred] Shares Purchasable
-----------------------------------------------------
Upon Exercise of Warrants. The number of Warrant Securities that may be
- -------------------------
purchased upon exercise of a Warrant shall be determined by multiplying the
number of [Common] [Preferred] Shares which would otherwise (but for the
provisions of this Section 3.2) be issuable upon such exercise by a fraction of
which (a) the numerator is _________ and (b) the denominator is $_________ minus
deductions made from (and/or plus additions to) the Warrant Price pursuant to
Sections 3.1(a) or (c) hereof. The Warrant Price per [Common] [Preferred] Share
shall be adjusted and readjusted from time to time as provided in this Article
III and, as so adjusted or readjusted, shall remain in effect until a further
adjustment or readjustment thereof is required by this Article III.
SECTION 3.3. Statements on Warrants. The form of Warrant Certificate
----------------------
need not be changed because of any adjustment made pursuant to this Article III,
and Warrant Certificates issued after such adjustment may state the same Warrant
Price and the same number of [Common] [Preferred] Shares as are stated in the
Warrant Certificates initially issued pursuant to this Agreement. The Company,
however, may at any time in its sole discretion (which shall be conclusive) make
any change in the
15
<PAGE>
form of Warrant Certificate that it may deem appropriate and that does not
affect the substance thereof, and any Warrant Certificate thereafter issued or
countersigned, whether in exchange or substitution for an outstanding Warrant
Certificate or otherwise, may be in the form as so changed.
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 4.1. No Rights as Warrant Securityholder Conferred by
------------------------------------------------
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
- --------------------------------
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to vote at, or to
receive notice of, any meeting of shareholders of the Company; the consent of
action or proceeding of the Company; no such holder, by reason of the ownership
or possession of a Warrant or the Warrant Certificate representing the same,
either at, before or after exercising such Warrant, shall have any right to
receive any cash dividends, stock dividends, allotments or rights, or other
distributions (except as specifically provided herein), paid, allotted or
distributed or distributable to the stockholders of the Company prior to the
date of the exercise of such Warrant; and no such holder shall have any right
not expressly conferred by the Warrant or Warrant Certificate that such holder
holds.
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant
--------------------------------------------
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
- ------------
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
16
<PAGE>
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 4.3. Holder of Warrant Certificate May Enforce Rights.
------------------------------------------------
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 4.4. Reclassification, Consolidation, Merger, Sale or
------------------------------------------------
Conveyance. In case any of the following shall occur while any Warrants are
- ----------
outstanding: [(a) any reclassification or change of the outstanding shares of
Warrant Securities (other than a change in par value, or from par value to no
par value, or as a result of a subdivision or combination of the Warrant
Securities);] or (b) any consolidation, merger or combination of the Company
with or into another corporation (other than a merger or consolidation of the
Company in which the Company is the continuing corporation and which does not
result in any reclassification or change of outstanding [Common][Preferred]
Shares) as a result of which holders of Warrant Securities shall be entitled to
receive stock, securities or other property or assets (including cash) with
respect to or in exchange for such Warrant Securities; or (c) any sale or
conveyance of the property or assets of the Company as, or substantially as, an
entirety to any other entity as a result of which holders of Warrant Securities
shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Warrant Securities;
then the Company, or such successor or purchasing corporation, as the case may
be, shall make appropriate provision by amendment of this Agreement or otherwise
so that the holders of the Warrants then outstanding shall have the right at any
time thereafter, upon exercise of such Warrants, to receive the kind and amount
of shares of stock and other securities and property or assets receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance [(or at the option of the Company, a sum equal to the value thereof
at the time of the distribution as determined by the Board of Directors in its
sole discretion)] as would be received by a holder of the number of shares of
Warrant
17
<PAGE>
Securities issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance, and, in the
case of a consolidation, merger, sale or conveyance the Company shall thereupon
be relieved of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Warrants issuable hereunder which
theretofore shall not have been signed by the Company, and may execute and
deliver Warrant Securities in its own name, in fulfillment of its obligations to
deliver Warrant Securities upon exercise of the Warrants. All the Warrants so
issued shall in all respects have the same legal rank and benefit under this
Agreement as the Warrants theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Warrants had been issued at
the date of the execution hereof. In any case of any such reclassification,
change, consolidation, merger, sale or conveyance, such changes in phraseology
and form (but not in substance) may be made in the Warrants thereafter to be
issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel
(which may be counsel to the Company) as conclusive evidence that any such
reclassification, change, merger, consolidation, sale or conveyance complies
with the provisions of this Section 4.4.
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 5.1. Exchange and Transfer of Warrant Certificates, [If
--------------------------------------------- --
Offered Securities with Warrants which are immediately detachable -- Upon] [If
- ----------------------------------------------------------------- --
Offered Securities with Warrants which are not immediately detachable -- Prior
- ---------------------------------------------------------------------
to the Detachable Date a Warrant Certificate may be exchanged or transferred
only together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security on the register of the Offered Securities
shall operate also to transfer the related Warrant Certificates. After the
Detachable Date upon] surrender at the corporate trust office of the Warrant
Agent [or ________], Warrant Certificates evidencing Warrants may be exchanged
for Warrant Certificates in other denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided that such other
Warrant Certificates evidence the
18
<PAGE>
same aggregate number of Warrants as the Warrant Certificates so surrendered.
The Warrant Agent shall keep, at its corporate trust office [and at ________],
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
Agent at its corporate trust office [or ________] for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such
exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates duly
authorized and executed by the Company, as so requested. The Warrant Agent
shall not be required to effect any exchange or registration of transfer which
will result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Warrant Certificate surrendered for such exchange or registration of transfer.
SECTION 5.2. Treatment of Holders of Warrant Certificates. [If
-------------------------------------------- --
Offered Securities and Warrants are not immediately detachable -- Prior to the
- --------------------------------------------------------------
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to exercise
the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date, and]
[P]rior to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and all other persons may treat the
person in whose name the Warrant Certificate is registered as the owner thereof
for any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.
19
<PAGE>
SECTION 5.3. Cancellation of Warrant Certificates. Any Warrant
------------------------------------
Certificates surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE VI.
CONCERNING THE WARRANT AGENT
SECTION 6.1. Warrant Agent. The Company hereby appoints [Warrant
-------------
Agent] as Warrant Agent of the Company in respect of the Warrants and the
Warrant Certificates upon the terms and subject to the conditions herein set
forth; and [Warrant Agent] hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 6.2. Conditions of Warrant Agent's Obligations. The Warrant
-----------------------------------------
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
--------------------------------
promptly to pay the Warrant Agent the compensation to be agreed upon with
the Company for all services rendered by the Warrant Agent and to reimburse
the Warrant Agent for reasonable out-of-pocket expenses (including counsel
fees) incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part
of the Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, as well as the costs and expenses of defending
against any claim of such liability.
20
<PAGE>
(b) Agent for the Company. In acting under this Warrant
---------------------
Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligations or relationship of agency or trust for or with any of the
holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
-------
satisfactory to it (which may be counsel to the Company), and the written
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
---------
incur no liability for or in respect of any action taken or thing suffered
by it in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
--------------------
directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act as depositary, trustee or agent
for, any committee or body of holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in the Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
-------------------------
Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have
---------------------------
no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent
-------------------------------------
shall not be responsible for any of the recitals or representations herein
or in the Warrant
21
<PAGE>
Certificates (except as to the Warrant Agent's counter-signature thereon),
all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
----------------------
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take
any action hereunder which may involve it in any expense or liability, the
payment of which within a reasonable time is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or
under any duty or responsibility for the use by the Company of any of the
Warrant Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent
shall have no duty or responsibility in case of any default by the Company
in the performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 7.2 hereof, to make any demand
upon the Company.
SECTION 6.3. Resignation and Appointment of Successor.
----------------------------------------
(a) The Company agrees, for the benefit of the holders from time to
time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company
22
<PAGE>
under Section 6.2(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or under any other applicable Federal
or State bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take corporate action in furtherance of
any such action, or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the Warrant
Agent in an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or similar law; or a decree or order by a court having jurisdiction
in the premises shall have been entered for the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or similar official)
of the Warrant Agent or of its property or affairs, or any public officer
shall take charge or control of the Warrant Agent or of its property or
affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation
23
<PAGE>
resulting from any merger, conversion or consolidation to which the Warrant
Agent shall be a party or any corporation to which the Warrant Agent shall be a
party ,or any corporation to which substantially all the assets and business of
the Warrant Agent shall have been transferred, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VII.
REDEMPTION; ACCELERATED EXPIRATION DATE
SECTION 7.1. Redemption. The Company may, at its option, at any time
----------
from and after __________ __, ____ and at or prior to 5:00 p.m., New York time,
on the earlier of the Scheduled Expiration Date or the Accelerated Expiration
Date (as defined in Section 7.2, redeem all but not less than all of the then
outstanding Warrants at a redemption price of $__ per Warrant, subject to
adjustment pursuant to the provisions of Section 7.3(b). Such price, as the
same may be from time to time adjusted, is hereinafter referred to as the
"Redemption Price." If the Company should desire to exercise such right to
redeem all of the then outstanding Warrants, it will give notice of such
redemption to the holders thereof as follows:
Notice of such redemption to holders of Warrants shall be mailed to
all such holders not less than 30 nor more than 90 days prior to the date fixed
for redemption at their last addresses as they appear upon the registry books of
the Warrant Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each such
notice of redemption will specify the date fixed for redemption ("Redemption
Date") and the Redemption Price. The notice will state that payment of the
Redemption Price will be made at the office or agency of the Warrant Agent or at
the option of the Company at a specified office of the Company in the City of
New York, State of New York, upon presentation and surrender of such Warrants,
and will also state that the right to exercise the Warrants will terminate at
the close of business on the business day immediately preceding the Redemption
Date.
On or before the Redemption Date, the Company shall deposit with the
Warrant Agent funds in form satisfactory to the Warrant Agent sufficient to
redeem the then outstanding Warrants at the Redemption Price.
SECTION 7.2. Accelerated Expiration Date. If the price of a [Common]
---------------------------
[Preferred] Share (as determined pursuant to the second sentence of Section
3.1(e)) for each of 10 consecutive
24
<PAGE>
trading days is at least $___, subject to adjustment pursuant to the provisions
of Section 7.3(b) (such price, as the same may from time to time be adjusted, is
hereinafter referred to as the "Acceleration Price"), then the Company may, at
its option, accelerate the date by which the Warrants must be exercised to
purchase [Common] [Preferred] Shares and therafter cease to be exercisable. If
the Company shall so accelerate such date, it shall give notice of such
acceleration within 30 days after the end of any such 10 consecutive trading day
period to the holders of Warrants as follows:
Notice of such acceleration shall be mailed to all holders of Warrants
not less than 30 nor more than 90 days prior to the date specified in such
notice as the date by which the Warrants must be exercised to purchase [Common]
[Preferred] Shares and cease to be exercisable (the "Accelerated Expiration
Date") to their last addresses as they appear upon the registry books of the
Warrant Agent. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each such
notice of acceleration will specify the Accelerated Expiration Date and the
Acceleration Price.
SECTION 7.3. [INTENTIONALLY OMITTED]
SECTION 7.4. Notice of Proposed Actions. In case the Company shall
--------------------------
propose (a) to pay any dividend payable in stock of any class to the holders of
its Common [or Preferred] Shares or to make any other distribution to the
holders of its Common [or Preferred] Shares (other than a cash dividend), or (b)
to offer to the holders of its Common Shares rights or warrants to subscribe for
or to purchase any additional Common Shares or shares of stock of any class or
any other securities, rights or options, or (c) to effect any reclassification
of its Common [or Preferred] Shares (other than a reclassification involving
only the subdivision or combination of outstanding Common [or Preferred]
Shares), or (d) to effect any consolidation, merger or sale, transfer or other
disposition of all or substantially all of the property, assets or business of
the Company, or (e) to effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to each holder of a
Warrant, in accordance with Section 8.2, a notice of such proposed action, which
shall specify the record date for the purposes of such stock dividend,
distribution or rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, disposition, liquidation, dissolution, or
winding up is to take place and the date of participation therein by the holders
of Common [or Preferred] Shares, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by clause (a) or (b)
above at least ten days prior to the record date for determining holders of the
Common [or Preferred] Shares for purposes of such
25
<PAGE>
action, and in the case of any such action, at least ten days prior to the date
of the taking of such proposed action or the date of participation therein by
the holders of Common [or Preferred] Shares, whichever shall be the earlier.
The failure to give notice required by this Section 7.4 or any defect therein
shall not affect the legality or validity of the action taken by the Company or
the vote upon any such action.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Amendment. (a) This Agreement and the Warrant
---------
Certificates may be amended by the Company and the Warrant Agent, without the
consent of the registered holders of the Warrant Certificates or the Warrant
holders, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or
therein, for the purpose of appointing a successor Warrant Agent in accordance
with Section 6.3 or in any other manner which the Company may deem to be
necessary or desirable and which will not materially and adversely affect the
interests of the Warrant holders.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of the holders of not
fewer than a majority in number of the then outstanding unexercised Warrants
affected by such modification or amendment, for any purpose; provided, however,
-------- -------
that no such modification or amendment that decreases or increases the Warrant
Price, shortens the period of time during which the Warrants may be exercised,
or otherwise materially and adversely affects the exercise rights of the holders
or reduces the percentage of outstanding Warrants the consent of the holders of
which is required for modification or amendment of this Agreement or the Warrant
Certificates, may be made without the consent of each Warrant holder affected
thereby.
SECTION 8.2. Notices and Demands to the Company and Warrant Agent.
----------------------------------------------------
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 8.3. Addresses. Any communication from the Company to the
---------
Warrant Agent with respect to this Agreement shall be addressed to [Warrant
Agent], _____________, Attention: ____________________ and any communication
from the Warrant Agent to the Company with respect to this Agreement shall be
addressed to Sun Company, Inc., Ten Penn Center, 1801 Market Street,
26
<PAGE>
Philadelphia, Pennsylvania 19103-1699, Attention: Corporate Secretary (or such
other address as shall be specified in writing by the Warrant Agent or by the
Company).
SECTION 8.4. Applicable Law. The validity, interpretation and
--------------
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Pennsylvania.
SECTION 8.5. Delivery of Prospectus. The Company will furnish to the
----------------------
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 8.6. Obtaining of Governmental Approvals. The Company will
-----------------------------------
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 8.7. Persons Having Rights under Warrant Agreement. Nothing
---------------------------------------------
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any legal or equitable right,
remedy or claim under or by reason of this Agreement.
SECTION 8.8. Headings. The descriptive headings of the several
--------
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 8.9. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
27
<PAGE>
SECTION 8.10. Inspection of Agreement. A copy of this Agreement
-----------------------
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective duly authorized officers, and their respective
corporate seals to be affixed hereunto, and the same to be attested by their
respective Secretaries or one of their respective Assistant Secretaries, all as
of the day and year first above written.
SUN COMPANY, INC.
By _________________________
Title:
Attest:
______________________________
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
______________________________
Title:
28
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Securities Prior to _______________ this Warrant
with Warrants which are not Certificate cannot be transferred or
immediately detachable. exchanged unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants are not Prior to _______________, Warrants
---------------------------------- evidence by this Warrant Certificate
immediately exercisable. cannot be exercised.]
- -----------------------
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
SUN COMPANY, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. NEW YORK CITY TIME ON _______________ OR EARLIER IF
NOTICE OF REDEMPTION OR ACCELERATION IS GIVEN
No. __________ __________ Warrants
This certifies that [the bearer is the] [__________________________
________________ or registered assigns is the registered] owner of the above
indicated number of Warrants, each Warrant entitling such owner [if Offered
Securities with Warrants which are not immediately detachable-- , subject to
the registered owner qualifying as a "holder" of this Warrant Certificate, as
hereinafter defined] to purchase, at any time [after 5 P.M., New York City
time, on _______________ and] on or before the earliest of (i) 5 P.M. New York
City time on __, __, (the "Scheduled Expiration Date") (ii) the Accelerated
Expiration Date as defined in the Warrant Agreement (referred to herein) or
(iii) the business day immediately prior to the Redemption Date as defined in
the Warrant Agreement, [Common Stock, par value $1 per share] [Cumulative
Preference Stock] (the "Warrant Securities"), of Sun Company, Inc. (the
"Company"), issued and to be issued under the Warrant Agreement (as
hereinafter defined), on the following basis: during the period from
_______________, through and including _______________ the exercise price of
each Warrant will be $________ per share; during the period from
_______________, through and including _______________, the exercise price of
each Warrant will be $________ per share (the "Warrant Price"). Each Warrant
not exercised at or prior to 5:00 P.M. New York time on the earliest of (i)
the Scheduled Expiration Date, (ii) the
A-1
<PAGE>
Accelerated Expiration Date, and (ii) the business day immediately prior to the
Redemption Date shall become void and all rights of the holder of this Warrant
Ceriticate under the Warrant Agreement and this Warrant Certificate shall cease.
No adjustment shall be made for any dividends on any Warrant Securities issuable
upon exercise of any Warrant.
The holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof, including any applicable
certifications if the Warrant Securities are issuable in bearer form, and by
paying in full [in lawful money of the United States of America] [applicable
currency] [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in immediately available funds,
the Warrant Price for each Warrant exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of
[Warrant Agent], or its successor as warrant agent (the "Warrant Agent"), [or
____________] currently at the address specified on the reverse hereof, and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities
---------------------
with Warrants which are not immediately detachable -- , prior to ____________
- --------------------------------------------------
(the "Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 5.1 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in denominations
of ____________ and any integral multiples thereof. Upon any exercise of fewer
than all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing the number of
Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _____________ (the "Warrant Agreement") between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ____________].
A-2
<PAGE>
[If Offered Securities with Warrants which are not immediately
-------------------------------------------------------------
detachable -- Prior to ____________, this Warrant Certificate may be exchanged
- ----------
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this] [if Offered Securities with
--------------------------
Warrants which are immediately detachable -- Transfer of this] Warrant
- -----------------------------------------
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ____________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.]
[If Offered Securities with Warrants which are not immediately
-------------------------------------------------------------
detachable -- Except as provided in the immediately preceding paragraph, after]
- ----------
[If Offered Securities with Warrants which are immediately detachable or
-----------------------------------------------------------------------
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
- --------------
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ____________]
for Warrant Certificates representing the same aggregate number of Warrants.
The Warrants evidenced by this Certificate may be redeemed by the
Company at its option at any time from and after [ ] but before they are
exercised to purchase [Common] [Preferred] Shares, at a redemption price of [ ]
per Warrant subject to adjustment, in accordance with the terms of the Warrant
Agreement.
If the price of a [Common] [Preferred] Share (determined in accordance
with the Warrant Agreement) for each of 10 consecutive trading days is at least
[ ] (subject to adjustment as provided in the Warrant Agreement), the Company
may, at its option, accelerate the date by which the Warrants must be exercised
to purchase [Common] [Preferred] Shares and thereafter cease to be exercisable.
No holder of this Warrant Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of [Common]
[Preferred] Shares or of any other securities of the Company which may at any
time be issuable on the exercise thereof, nor shall anything contained in the
Warrant Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a shareholder of the Company or any right to vote
upon any mater submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether upon any recapitalization,
issue of stock, reclassification of stock, change of par value, consolidation,
merger, conveyance, or otherwise) or, except as provided in the Warrant
Agreement, to receive notice of meetings, or to receive dividends or
subscription rights or otherwise, until the Warrant
A-3
<PAGE>
or Warrants evidenced by this Warrant Certificate shall have been exercised as
provided in the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of _______________
SUN COMPANY, INC.
By: __________________________
Attest:
_____________________________
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: _________________________
Authorized Signature
A-4
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
[Dollars] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer] [by bank wire transfer] [in immediately
available funds] the Warrant Price in full for Warrants exercised to [Warrant
Agent], [corporate trust department] [insert address of Warrant Agent], Attn.
__________ [or ____________], which [payment] [wire transfer] must specify the
name of the holder and the number of Warrants exercised by such holder. In
addition, the holder must complete the information required below, including any
applicable certifications if the Warrant Securities are issuable in bearer form,
and present this Warrant Certificate in person or by mail (certified or
registered mail is recommended) to the Warrant Agent at the appropriate address
set forth below. This Warrant Certificate, completed and duly executed, must be
received by the Warrant Agent at the time of the exercise of the Warrant.
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ____________
Warrants, evidenced by this Warrant Certificate, to purchase ____________
[Common Shares] [Preferred Shares] of Sun Company, Inc. (the "Warrant
Securities") and represents that he has tendered payment for such Warrant
Securities in [Dollars] [applicable currency] [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds to the order of Sun Company, Inc., c/o
[insert name and address of Warrant Agent], in the amount of ____________ in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Securities be in fully registered form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
A-5
<PAGE>
Dated: ____________________ Name__________________________
_____________________________ Address_______________________
(Insert Social Security or
Other Identifying Number of _______________________
Holder)
Signature_____________________
Signature Guaranteed (Signature must conform
_____________________________ in all respects to name
of holder as specified on
face of this Warrant
Certificate and must bear
a signature guarantee by
a bank, trust company or
member broker of the New
York, Midwest or Pacific
Stock Exchanges)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ___________________________________
___________________________________
___________________________________
___________________________________
By mail at ___________________________________
___________________________________
___________________________________
___________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificated evidencing unexercised Warrants -- complete as
appropriate.]
A-6
<PAGE>
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby sells,
assigns and transfers unto
______________________________ ______________________________
(Please print name) (Please insert social security
or other identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated:
______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by
a bank, trust company or
member broker of the New York,
Midwest or Pacific Stock
Exchange)
Signature Guaranteed
_____________________
A-7
<PAGE>
EXHIBIT 4.5
Articles of Incorporation
of Sun Company, Inc.
<PAGE>
Articles of Incorporation of Sun Company, Inc.
First: The name of the Corporation is "Sun Company, Inc."
Second: The location and post office address of its registered office in this
Commonwealth is 1801 Market Street, Philadelphia, Pennsylvania 19103.
Third: The Corporation shall have unlimited power to engage in and to do any
lawful act concerning any or all lawful business for which corporations may be
incorporated under the provisions of the Act of May 5, 1933 (P.L. 364, as
amended). The Corporation is incorporated under the provisions of said Act.
Fourth: The total number of shares of capital stock which this Corporation
shall have authority to issue is Two Hundred Fifteen Million (215,000,000) to be
divided into two classes consisting of Fifteen Million (15,000,000) shares
designated as "Cumulative Preference Stock" (hereinafter called "Preference
Stock"), without par value, and Two Hundred Million (200,000,000) shares
designated as "Common Stock,"(hereinafter called "Common Stock"), $1 par value.
The following is a description of each class of capital stock and a statement
of the preferences, qualifications, privileges, limitations, restrictions, and
other special or relative rights granted to or imposed upon the shares of each
class-:
Preference Stock
1. Authority of Board of Directors. Authority is hereby vested in the Board
of Directors, by resolution, to divide any or all of the authorized shares of
Preference Stock into series and, within the limitations provided by law and
this Article Fourth, to fix and determine the designations, preferences,
qualifications, privileges, limitations, options, conversion rights, and other
special rights of each such series, including but not limited to the right to
fix and determine:
(a) the designation of and the number of shares issuable in each such series;
(b) the annual dividend rate, expressed in a dollar amount per share, for each
such series;
(c) the right, if any, of the Corporation to redeem shares of any such series,
and the terms and conditions on which shares of each such series may be
redeemed;
(d) the amounts payable upon shares of each such series in the event of the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;
(e) the sinking fund provisions, if any, for the redemption or purchase of
shares of each such series;
(f) the voting rights, if any, for the shares of each such series; provided,
however, that the number of votes per share of Preference Stock shall in no
event exceed one (1);
(g) the terms and conditions, if any, on which shares of each such series may
be converted into shares of stock of this Corporation; provided, however, that
shares of Preference Stock shall not be convertible into shares of any class of
stock of the Corporation other than Common Stock and shall not be convertible
into more than one share of Common Stock, or such greater or lesser number as
will reflect the effect of stock dividends, stock splits or stock combinations
affecting Common Stock and occurring after May 9, 1980, subject to such terms
and conditions, including provision for fractional shares, as the Board of
Directors shall authorize;
<PAGE>
(h) the stated value per share for each such series; and
(i) any and all such other provisions as may be fixed or determined by the
Board of Directors of the Corporation pursuant to Pennsylvania law.
2. Parity of Series of Preference Stock and Shares Within Series; Priority of
Preference Stock. All shares of the same series of Preference Stock shall be
identical with each other share of such series in all respects, except that
shares of any one series issued at different times may differ as to the dates
from which dividends thereon shall be cumulative. Except as determined by the
Board of Directors as permitted by the provisions of paragraph 1 hereof, all
series of Preference Stock shall rank equally with and be identical in all
respects to each other series.
Preference Stock shall rank, as to dividends and upon liquidation, dissolution
or winding up, prior to Common Stock and to any other capital stock of the
Corporation hereafter authorized, other than capital stock which shall by its
terms rank prior to or on a parity with Preference Stock and which shall be
authorized pursuant to subparagraph 9(a) hereof.
3. Dividends. Before any dividends (other than dividends payable in stock
ranking junior to Preference Stock) on any class or classes of stock of the
Corporation ranking junior to Preference Stock as to dividends or upon
liquidation shall be declared and set apart for payment or paid, the holders of
shares of Preference Stock of each series shall be entitled to receive cash
dividends, when and as declared by the Board of Directors at the annual rate,
and no more, fixed in the resolution adopted by the Board of Directors providing
for the issue of such series. Such dividends shall be payable in cash
quarterly, each such quarterly payment to be in respect of the quarterly period
ending with the day next preceding the date of such payment (except in the case
of the first dividend which shall be in respect of the period beginning with the
initial date of issue of such shares and ending with the day next preceding the
date of such payment), to holders of Preference Stock of record on the
respective dates, not exceeding forty (40) days preceding such quarterly
dividend payment dates, fixed for that purpose by the Board of Directors. With
respect to each series of Preference Stock, such dividends shall be cumulative
from the date or dates of issue of such series, which date or dates may be set
by the Board of Directors pursuant to the provisions of paragraph 1 hereof. No
dividends shall be declared or paid or set apart for payment on any series of
Preference Stock in respect of any quarterly dividend period unless there shall
likewise be or have been declared and paid or set apart for payment on all
shares of Preference Stock of each other series at the time outstanding like
dividends in proportion to the respective annual dividend rates fixed therefor
as hereinbefore provided for all quarterly dividend periods coinciding with or
ending before such quarterly dividend period. Accruals of dividends shall not
bear interest.
4. Redemption. The Corporation, at the option of the Board of Directors, may,
at any time permitted by the resolution adopted by the Board of Directors
providing for the issue of any series of Preference Stock and at the redemption
price or prices stated in said resolution, redeem the whole or any part of the
shares of such series at the time outstanding. If at any time less than all of
the shares of Preference Stock then outstanding are to be called for redemption,
the shares to be redeemed may be selected by lot or by such other equitable
method as the Board of Directors in its discretion may determine. Notice of
every redemption, stating the redemption date, the redemption price, and the
placement of payment
<PAGE>
thereof, shall be given by mailing a copy of such notice at least thirty (30)
days and not more than sixty (60) days prior to the date fixed for redemption to
the holders of record of the shares of Preference Stock to be redeemed at their
addresses as the same shall appear on the books of the Corporation. The
Corporation, upon mailing notice of redemption as aforesaid or upon irrevocably
authorizing the bank or trust company hereinafter mentioned to mail such notice,
may deposit or cause to be deposited in trust with a bank or trust company in
the City of Philadelphia, Commonwealth of Pennsylvania, or in the Borough of
Manhattan, City and State of New York, an amount equal to the redemption price
of the shares to be redeemed plus any accrued and unpaid dividends thereon,
which amount shall be payable to the holders of the shares to be redeemed upon
surrender of certificates therefor on or after the date fixed for redemption or
prior thereto if so directed by the Board of Directors. Upon such deposit, or
if no such deposit is made, then from and after the date fixed for redemption
unless the Board of Directors shall default in making payment of the redemption
price plus accrued and unpaid dividends upon surrender of certificates as
aforesaid, the shares called for redemption shall cease to be outstanding and
the holders thereof shall cease to be stockholders with respect to such shares
and shall have no interest in or claim against the Corporation with respect to
such shares other than the right to receive the redemption price plus accrued
and unpaid dividends from such bank or trust company or from the Corporation, as
the case may be, without interest thereon, upon surrender of certificates as
aforesaid; provided, that conversion rights, if any, of shares called for
redemption shall terminate at the close of business on the business day prior to
the date fixed for redemption. Any funds so deposited which shall not be
required for such redemption because of the exercise of conversion rights
subsequent to the date of such deposit shall be returned to the Corporation. In
case any holder of shares of Preference Stock which have been called for
redemption shall not, within six (6) years after the date of such deposit, have
claimed the amount deposited with respect to the redemption thereof, such bank
or trust company, upon demand, shall pay over to the Corporation such unclaimed
amount and shall thereupon be relieved of all responsibility in respect thereof
to such holder, and thereafter such holder shall look only to the Corporation
for payment thereof. Any interest which may accrue on funds so deposited shall
be paid to the Corporation from time to time.
5. Status of Shares of Preference Stock Redeemed or Acquired. Unless
otherwise specifically provided in the resolutions of the Board of Directors
authorizing the issue of any series of Preference Stock, shares of any series of
Preference Stock which have been redeemed, purchased or acquired by the
Corporation by means other than conversion (whether through the operation of a
sinking fund or otherwise) shall have the status of authorized and unissued
shares of Preference Stock and may be reissued as a part of the series of which
they were originally a part or may be reclassified and reissued as part of a new
series of Preference Stock to be created by resolution of the Board of Directors
or as part of any other series of Preference Stock. Shares of any series of
Preference Stock converted shall not be reissued and the Board of Directors
shall take appropriate actions to reflect the conversion of Preference Stock
from time to time by effecting reductions in the number of shares of Preference
Stock which the Corporation is authorized to issue.
<PAGE>
6. Redemption or Acquisition of Preference Stock During Default in Payment of
Dividends. If at any time the Corporation shall have failed to pay dividends in
full on Preference Stock, thereafter and until dividends in full including all
accrued and unpaid dividends on shares of all series of Preference Stock at the
time outstanding, shall have been declared and set apart for payment or paid,
(i) the Corporation, without the affirmative vote or consent of the holders of
at least a majority of the shares of Preference Stock at the time outstanding,
voting or consenting separately as a class without regard to series, given in
person or by proxy, either in writing or by resolution adopted at a meeting,
shall not redeem less than all the shares of Preference Stock at such time
outstanding, regardless of series, other than in accordance with paragraph 8
hereof and (ii) neither the Corporation nor any subsidiary shall purchase any
shares of Preference Stock except in accordance with a purchase offer made in
writing or by publication, as determined by the Board of Directors, in their
sole discretion after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series, shall determine
(which determination shall be final and conclusive) will result in fair and
equitable treatment among the respective series; provided, however, that (iii)
unless prohibited by the provisions applicable to any series, the Corporation,
to meet the requirements of any sinking fund provision with respect to any
series, may use shares of such series acquired by it prior to such failure and
then held by it as treasury stock, and (iv) nothing shall prevent the
Corporation from completing the purchase or redemption of shares of Preference
Stock for which a purchase contract was entered into for any sinking fund
purposes or the notice of redemption of which was mailed to the holders thereof,
prior to such default.
7. Dividends and Distributions on and Redemption and Acquisition of Junior
Classes of Stock. So long as any shares of Preference Stock are outstanding,
the Corporation shall not declare or set apart for payment or pay any dividends
(other than stock dividends payable on shares of stock ranking junior to
Preference Stock) or make any distribution on any other class or classes of
stock of the Corporation ranking junior to Preference Stock as to dividends or
upon liquidation and shall not redeem, purchase or otherwise acquire, or permit
any subsidiary to purchase or otherwise acquire, any shares of any such junior
class if at the time of making such declaration, payment, distribution,
redemption, purchase or acquisition the Corporation shall be in default with
respect to any dividend payable on, or any obligation to purchase, shares of any
series of Preference Stock; provided, however, that, notwithstanding the
foregoing, the Corporation may at any time redeem, purchase or otherwise acquire
shares of stock of any such junior class in exchange for, or out of the net cash
proceeds from the sale of, other shares of stock of any junior class.
8. Retirement of Shares. If in any case the amounts payable with respect to
any obligations to retire shares of Preference Stock are not paid in full in the
case of all series with respect to which such obligations exist, the number of
shares of the various series to be retired shall be in proportion to the
respective amounts which would be payable on account of such obligations if all
amounts payable were discharged in full.
9. Action by Corporation Requiring Approval of Preference Stock. The
Corporation shall not, without the affirmative vote or consent of the holders of
at least 66 2/3% of the number of shares of Preference Stock at the time
outstanding, voting or consenting (as the case may be) separately
<PAGE>
as a class without regard to series, given in person or by proxy, either in
writing or by resolution adopted at a meeting:
(a) create any class of stock ranking prior to or on a parity with Preference
Stock as to dividends or upon liquidation or increase the authorized number of
shares of any such previously authorized class of stock;
(b) alter or change any of the provisions hereof so as adversely to affect the
preferences, special rights or powers given to the Preference Stock;
(c) increase the number of shares of Preference Stock which the Corporation is
authorized to issue; or
(d) alter or change any of the provisions hereof or of the resolution adopted
by the Board of Directors providing for the issue of such series so as adversely
to affect the preferences, special rights or powers given to such series.
10. Special Voting Rights. If the Corporation shall have failed to pay, or
declare and set apart for payment, dividends on Preference Stock in an aggregate
amount equivalent to six (6) full quarterly dividends on all shares of
Preference Stock at the time outstanding, the number of Directors of the
Corporation shall be increased by two (2) at the first annual meeting of the
shareholders of the Corporation held thereafter, and at such meeting and at each
subsequent annual meeting until dividends payable for all past quarterly
dividend periods on all outstanding shares of Preference Stock shall have been
paid, or declared and set apart for payment, in full, the holders of the shares
of Preference Stock shall have, in addition to any other voting rights which
they otherwise may have, the exclusive and special right, voting separately as a
class without regard to series, each share of Preference Stock entitling the
holder thereof to one (1) vote per share, to elect two (2) additional members of
the Board of Directors to hold office for a term of one (1) year; provided, that
the right to vote as a class upon the election of such two (2) additional
Directors shall not limit the right of holders of any series of Preference Stock
to vote upon the election of all other Directors and upon other matters if and
to the extent that such holders are entitled to vote pursuant to the resolution
adopted by the Board of Directors pursuant to paragraph 1 hereof, providing for
the issue of such series. Upon such payment, or declaration and setting apart
for payment, in full, the terms of the two (2) additional Directors so elected
shall forthwith terminate, and the number of Directors of the Corporation shall
be reduced by two (2) and such voting right of the holders of shares of
Preference Stock shall cease, subject to increase in the number of Directors as
aforesaid and to revesting of such voting right in the event of each and every
additional failure in the payment of dividends in an aggregate amount equivalent
to six (6) full quarterly dividends as aforesaid.
11. Liquidation of the Corporation. Upon the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, Preference Stock
shall be preferred as to assets over Common Stock and any other class or classes
of stock ranking junior to Preference Stock so that the holders of shares of
Preference Stock of each series shall be entitled to be paid or to have set
apart for payment, before any distribution is made to the holders of Common
Stock and any other class or classes of stock ranking junior to Preference
Stock, the amount fixed in accordance with paragraph 1
<PAGE>
hereof plus an amount equal to all dividends accrued and unpaid up to and
including the date fixed for such payment and the holders of Preference Stock
shall not be entitled to any other payment.
If upon any such liquidation, dissolution or winding up of the Corporation,
its net assets shall be insufficient to permit the payment in full of the
respective amounts to which the holders of all outstanding shares of Preference
Stock are entitled as above provided, the entire remaining net assets of the
Corporation shall be distributed among the holders of Preference Stock in
amounts proportionate to the full preferential amounts to which they are
respectively entitled.
For the purposes of this paragraph 11, the voluntary sale, lease, exchange or
transfer for cash, shares of stock (securities or other consideration) of all or
substantially all the Corporation's property or assets to, or its consolidation
or merger with, one or more corporations shall not be deemed to be a voluntary
or involuntary liquidation, dissolution or winding up of the Corporation.
12. Voting Rights. Except as otherwise provided by the provisions of this
Article Fourth or by statute or when fixed in accordance with the provisions of
paragraph 1 hereof, the holders of shares of Preference Stock shall not be
entitled to any voting rights.
13. Definitions. For the purposes of this Article Fourth and of any resolution
of the Board of Directors providing for the issue of any series of Preference
Stock or of any statement filed with the Secretary of State of the Commonwealth
of Pennsylvania (unless otherwise provided in any such resolution or statement):
(a) The term "outstanding," when used in reference to shares of stock, shall
mean issued shares excluding:
(i) shares held by the Corporation or a subsidiary; and
(ii) shares called for redemption if funds for the redemption thereof
have been deposited in trust.
(b) Any class or classes of stock of the Corporation shall be deemed to rank:
(i) prior to Preference Stock, either as to dividends or upon liquidation,
if the holders of such class or classes shall be entitled to the receipt of
dividends or amounts distributable upon liquidation, dissolution or winding up,
as the case may be, in preference or priority to the holders of Preference
Stock;
(ii) on a parity with Preference Stock, either as to dividends or upon
liquidation, whether or not the dividend rates or dividend payment dates or the
redemption or liquidation prices per share thereof be different from those of
Preference Stock, if the holders of such class or classes shall be entitled to
the receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in proportion to their respective
dividend rates or liquidation prices, without preference or priority one (1)
over the other as between the holders of such class or classes and the holders
of Preference Stock; and
(iii) junior to Preference Stock, either as to dividends or upon
liquidation, if the rights of the holders of such class or classes shall be
subject or subordinate to the rights of the holders of Preference Stock in
respect of the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be.
(c) The term "subsidiary" as used herein shall mean any corporation 51% or
more of the outstanding stock having voting rights of which is at the time owned
or controlled directly or indirectly by the Corporation.
<PAGE>
Common Stock
Each holder of record of Common Stock shall have the right to one (1) vote for
each share of Common Stock standing in his name on the books of the Corporation.
Except as required by law or as otherwise specifically provided in this Article
Fourth, the holders of Preference Stock having voting rights and holders of
Common Stock shall vote together as one class.
Preemptive Rights
Neither the holders of Preference Stock nor the holders of Common Stock shall
have any preemptive rights, and the Corporation shall have the right to issue
and to sell to any person or persons any shares of its capital stock or any
option rights or any securities having conversion or option rights, without
first offering such shares, rights or securities to any holders of Preference
Stock or Common Stock.
Fifth: 1. The affirmative vote of the holders of not less than 75% of the
outstanding shares of "Voting Stock" held by shareholders other than a "Related
Person" shall be required for the approval or authorization of any "Business
Combination" of the Corporation with any Related Person; provided, however, that
the 75% voting requirement shall not be applicable if:
(i) The "Continuing Directors" of the Corporation by at least a two-thirds
vote of such Continuing Directors have expressly approved such Business
Combination either in advance of or subsequent to such Related Person's having
become a Related Person; or
(ii) The cash or fair market value (as determined by at least two-thirds of
the Continuing Directors) of the property, securities or other consideration to
be received per share by holders of Voting Stock of the Corporation in the
Business Combination is not less than the "Highest Per Share Price" or the
"Highest Equivalent Price" paid by the Related Person in acquiring any of its
holdings of the Corporation's Voting Stock.
2. For purposes of this Article FIFTH:
(i) The term "Business Combination" shall mean (a) any merger or
consolidation of the Corporation or a subsidiary of the Corporation with or into
a Related Person, (b) any sale, lease, exchange, transfer or other disposition,
including without limitation a mortgage or any other security device, of all or
any "Substantial Part" of the assets either of the Corporation (including
without limitation any voting securities of a subsidiary) or of a subsidiary of
the Corporation to a Related Person, (c) any merger or consolidation of a
Related Person with or into the Corporation or a subsidiary of the Corporation,
(d) any sale, lease, exchange, transfer or other disposition, including without
limitation a mortgage or other security device, of all or any Substantial Part
of the assets of a Related Person to the Corporation or a subsidiary of the
Corporation, (e) the issuance of any securities of the Corporation or a
subsidiary of the Corporation to a Related Person other than the issuance on a
pro rata basis to all holders of shares of the same class pursuant to a stock
split or stock dividend, or a distribution of warrants or rights, (f) any
recapitalization that would have the effect of increasing the voting power of a
Related Person, and (g) any agreement, contract or other arrangement providing
for any of the transactions described in this definition of Business
Combination.
<PAGE>
(ii) The term "Related Person" shall mean and include any individual,
corporation, partnership or other person or entity which, together with its
"Affiliates" and "Associates" becomes the "Beneficial Owner" of an aggregate of
10% or more of the outstanding Voting Stock of the Corporation, and any
Affiliate or Associate of any such individual, corporation, partnership or other
person or entity; provided, however, that the term "Related Person" shall not
include (1) a person or entity whose acquisition of such aggregate percentage of
Voting Stock was approved in advance by two-thirds of the Continuing Directors
or (2) any trustee or fiduciary when acting in such capacity with respect to any
employee benefit plan of the Corporation or a wholly owned subsidiary of the
Corporation. No person who became a Related Person prior to December 31, 1983
shall be treated as a Related Person for the purpose of voting on any amendment,
alteration, change or repeal of this Article FIFTH or voting on any Business
Combination to which such Related Person is not a party.
(iii) The term "Substantial Part" shall mean an amount equal to 10% or more of
the fair market value as determined by two-thirds of the Continuing Directors of
the total consolidated assets of the Corporation and its subsidiaries taken as a
whole as of the end of its most recent fiscal year ended prior to the time the
determination is being made.
(iv) The term "Beneficial Owner" shall mean any person (1) who beneficially
owns shares of Voting Stock within the meaning ascribed in Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on the date of adoption of this Article FIFTH by the shareholders of the
Corporation, or (2) who has the right to acquire Voting Shares (whether or not
such right is exercisable immediately) pursuant to any agreement, contract,
arrangement or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise.
(v) For purposes of subparagraph 1(ii) of this Article FIFTH, the term "other
consideration to be received" shall include, without limitation, the value per
share of Common Stock or other capital stock of the Corporation retained by its
existing shareholders as adjusted to give effect to the proposed Business
Combination in the event of any Business Combination in which the Corporation is
a surviving corporation.
(vi) The term "Voting Stock" shall mean all of the outstanding shares of
Common Stock entitled to vote on each matter on which the holders of record of
Common Stock shall be entitled to vote, and each reference to a proportion of
shares of Voting Stock shall refer to such proportion of the votes entitled to
be cast by such shares.
(vii) The term "Continuing Director" shall mean a Director who was a member of
the Board of Directors of the Corporation immediately prior to the time that the
Related Person involved in a Business Combination became a Related Person. As
to any person who became a Related Person prior to December 31, 1983, a
Continuing Director shall mean a Director who was a member of the Board of
Directors on December 31, 1983.
(viii) A Related Person shall be deemed to have acquired a share of the Voting
Stock of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. With respect to the shares owned by Affiliates,
Associates or other persons whose ownership is attributed to a
<PAGE>
Related Person under the foregoing definition of Related Person, if the price
paid by such Related Person for such shares is not determinable by two-thirds of
the Continuing Directions, the price so paid shall be deemed to be the higher of
(a) the price paid upon the acquisition thereof by the Affiliate, Associate or
other person or (b) the market price of the shares in question at the time when
the Related Person became the Beneficial Owner thereof.
(ix) The terms "Highest Per Share Price" and "Highest Equivalent Price" as
used in this Article FIFTH shall mean the following: If there is only one (1)
class of capital stock of the Corporation issued and outstanding, the Highest
Per Share Price shall mean the highest price that can be determined to have been
paid at any time by the Related Person for any share or shares of that class of
capital stock. If there is more than one class of capital stock of the
Corporation issued and outstanding, the Highest Equivalent Price shall mean,
with respect to each class and series of capital stock of the Corporation, the
amount determined by two-thirds of the Continuing Directors, on whatever basis
they believe is appropriate, to be the highest per share price equivalent of the
highest price that can be determined to have been paid at any time by the
Related Person for any share or shares of any class of series of capital stock
of the Corporation. In determining the Highest Per Share Price and Highest
Equivalent Price, all purchases by the Related Person shall be taken into
account regardless of whether the shares were purchased before or after the
Related Person became a Related Person. Also, the Highest Per Share Price and
the Highest Equivalent Price shall include any brokerage commissions, transfer
taxes and soliciting dealers' fees or other value paid by the Related Person
with respect to the shares of capital stock of the Corporation acquire by the
Related Person.
(x) The terms "Affiliate" and "Associate" shall have the same meaning as in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934 as on the date of the adoption of this Article FIFTH by the
shareholders of the Corporation.
3. The provisions set forth in this Article FIFTH may not be amended, altered,
changed or repealed in any respect unless such action is approved by the
affirmative vote of the holders of not less than 75% of the outstanding shares
of Voting Stock of the Corporation at a meeting of the shareholders duly called
for the consideration of such amendment, alteration, change or repeal; provided,
however, that if there is a Related Person, such action must also be approved by
the affirmative vote of the holders of not less than 75% of the outstanding
shares of Voting Stock not held by any Related Person.
Sixth: The duration of the Corporation shall be perpetual.
Seventh: The business and affairs of the Corporation shall be managed by a
Board of Directors. The number of Directors of the Corporation shall be fixed
from time to time by the Bylaws but shall not be fixed at less than five (5).
The number of the Directors may be increased or diminished (but not to less than
five (5)), as may from time to time be provided in the Bylaws. In case of any
increase in the number of Directors the additional Directors shall be elected as
may be provided in the Bylaws, either by the Directors or by the shareholders.
<PAGE>
The shareholders of the Corporation shall not be entitled to cumulative voting
rights in the election of Directors.
Any officer elected or appointed by the Board of Directors may be removed at
any time by affirmative vote of a majority of the whole Board of Directors.
The Board of Directors, by the affirmative vote of a majority of the whole
Board, may appoint from the Directors an Executive Committee, of which a
majority shall constitute a quorum, and to such extent as shall be provided in
the Bylaws such Committee shall have and may exercise all or any of the powers
of the Board of Directors, including the power to cause the seal of the
Corporation to be affixed to all papers that may require it.
The Board of Directors, by the affirmative vote of a majority of the whole
Board, may appoint any other standing committees, and such standing committees
shall have and may exercise such powers as shall be conferred or authorized by
the Bylaws.
The Board of Directors shall have power from time to time to fix and to
determine and to vary the amount of the working capital of the Corporation and
to direct and determine the use and disposition of any surplus or net profits
over and above the capital stock paid in.
Subject always to alteration and repeal by the shareholders, and to Bylaws
made by the shareholders, the Board of Directors may make Bylaws and from time
to time to time may alter, amend or repeal any Bylaws; and any Bylaws made by
the Board of Directors may be so altered or repealed by the shareholders at any
annual meeting or at any special meeting, provided notice of such proposed
alteration or repeal be included in the notice of the special meeting.
Eighth: 1. Any direct or indirect purchase or other acquisition by the
Corporation of any "Equity Security" of any class or series from any "Five
Percent Holder", if such Five Percent Holder has been the "Beneficial Owner" of
such security for less than two years prior to the earlier of the date of such
purchase or any agreement in respect thereof at a price in excess of the "Fair
Market Value" thereof, shall, except as hereinafter expressly provided, require
the affirmative vote of the holders of at least a majority of the "Voting Stock"
excluding Voting Stock of which such Five Percent Holder is the Beneficial
Owner; provided, however, that the foregoing majority voting requirement shall
not be applicable with respect to (i) any purchase or other acquisition of an
Equity Security made as part of a tender or exchange offer by the Corporation to
purchase Equity Securities of the same class made on the same terms to all
holders of such security, or (ii) a purchase program effected on the open market
and not the result of a privately-negotiated transaction, or (iii) any optional
or required redemption of an Equity Security pursuant to the terms of such
security.
2. For purposes of this Article EIGHTH:
(i) The term "Equity Security" means an equity security of the Corporation
within the meaning ascribed to such term in Section 3(a)(11) of the Securities
Exchange Act of 1934, as in effect on January 1, 1985.
(ii) The term "Fair Market Value" means, in the case of any Equity Security,
the closing sale price on the trading day immediately preceding the earlier of
the date of any purchase subject to Paragraph 1 of this Article EIGHTH, or the
date of any agreement in respect thereof (such earlier date, the "Valuation
Date"), of a share of such Equity Security on
<PAGE>
the Composite Tape for New York Stock Exchange Listed Stocks, or, if such
security is not quoted on the Composite Tape, on the New York Stock Exchange,
or, if such security is not listed on such Exchange, on the principal United
States securities exchange registered under the Securities Exchange Act of 1934
on which such security is listed, or, if such security is not listed on any such
Exchange, the closing bid quotation with respect to such security on the trading
day immediately preceding the Valuation Date on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system then in use,
or if no such quotations are available, the Fair Market Value on the Valuation
Date of such security as determined by the Board of Directors in good faith.
(iii) The term "Person" shall mean any individual, corporation, partnership or
other entity and shall include any group comprised of any Person and any other
Person with whom such Person or any Affiliate or Associate of such Person has
any agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Voting Stock, and any
member of such group.
(iv) The term "Five Percent Holder" shall mean and include any Person which,
together with its "Affiliates" and "Associates" becomes the Beneficial Owner of
an aggregate of five percent (5%) or more of any class of Voting Stock of the
Corporation, and any Affiliate or Associate of any such Person; provided,
however, that for purposes of this Article EIGHTH, including, without
limitation, Paragraphs 1 and 4 hereof, the term Five Percent Holder shall not
include (1) any trustee or fiduciary when acting in such capacity with respect
to any employee benefit plan of the Corporation or a wholly owned subsidiary of
the Corporation or (2) any Person that would have been a Five Percent Holder on
December 31, 1984 if this Article EIGHTH were then in effect.
(v) The terms "Affiliate" and "Associate" shall have the meanings ascribed to
them in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on May 3, 1984.
(vi) The term "Beneficial Owner" shall mean any person (1) who beneficially
owns shares of Voting Stock within the meaning ascribed in Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on May 3, 1984, or (2) who has the right to acquire Voting Stock (whether
or not such right is exercisable immediately) pursuant to any agreement,
contract, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise.
(vii) The term "Voting Stock" shall mean all of the outstanding share of
Common Stock, and the outstanding shares of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation entitled
to vote on each matter on which the holders of Common Stock shall be entitled to
vote, and each reference to a vote of a proportion of shares of Voting Stock
shall refer to such proportion of the votes entitled to be cast by such shares.
(viii) In any determination whether a Person is a Five Percent Holder for
purposes of this Article EIGHTH, the relevant class of securities outstanding
shall be deemed to comprise all such securities deemed owned by such Person and
its Affiliates and Associates through application of
<PAGE>
Paragraph 2(vi)(2) of this Article EIGHTH, but shall not include any other
securities of such class which may be issuable pursuant to any agreement,
contract, arrangement or understanding, or upon exercise of conversion rights,
exchange rights, warrants or options, or otherwise.
3. The Board of Directors shall have the power to interpret all the provisions
of this Article EIGHTH and their application to a particular transaction,
including, without limitation, the power to determine (a) whether a Person is a
Five Percent Holder, (b) the number of shares of Voting Stock or other Equity
Securities of which any Person and its Affiliates and Associates are the
Beneficial Owners, (c) whether a Person is an Affiliate or Associate of another,
and (d) what is Fair Market Value and whether a price is above Fair Market Value
as of a given date. Any such determination made by the Board of Directors shall
be conclusive and binding to the fullest extent permitted by law.
4. The provisions set forth in this Article EIGHTH may not be amended, altered,
changed or repealed in any respect and no provision inconsistent herewith shall
be adopted unless such action is approved by the affirmative vote of the holders
of at least 75% of the Voting Stock of the Corporation at any annual meeting of
shareholders or at any special meeting duly called for that purpose, provided
notice of such amendment, alteration, change or repeal or adoption be included
in the notice of the special meeting; provided, however, that if there is a Five
Percent Holder such action must also be approved by the affirmative vote of the
holders of at least 75% of the Voting Stock excluding Voting Stock of which any
Five Percent Holder is the Beneficial Owner.
Ninth: 1. Directors and Officers as Fiduciaries. A Director or Officer of the
Corporation shall stand in a fiduciary relation to the Corporation and shall
perform his or her duties as a Director or officer, including his or her duties
as a member of any committee of the board upon which he or she may serve, in
good faith, in a manner he or she reasonably believes to be in the best
interests of the Corporation, and with such care, including reasonable inquiry,
skill and diligence, as a person of ordinary prudence would use under similar
circumstances. In performing his or her duties, a Director or officer shall be
entitled to rely in good faith on information, opinions, reports or statements,
including financial statements and other financial data, in each case prepared
or presented by one or more officers of employees of the Corporation whom the
Director or officer reasonably believes to be reliable and competent with
respect to the matters presented, counsel, public accountants or other persons
as to matters that the Director or officer reasonably believes to be within the
professional or expert competence of such person, or a committee of the Board of
Directors upon which the Director or officer does not serve, duly designated in
accordance with law, as to matters within its designated authority, which
committee the Director or officer reasonably believes to merit confidence. A
Director or officer shall not be considered to be acting in good faith if he or
she has knowledge concerning the matter in question that would cause his or her
reliance to be unwarranted. Absent breach of fiduciary duty, lack of good faith
or self-dealing, actions taken as a Director or officer of the Corporation or
any failure to take any action shall be presumed to be in the best interests of
the Corporation.
2. Personal Liability of Directors. A Director of the Corporation shall not be
personally liable, as such, for monetary damages (including without
<PAGE>
limitation, any judgment, amount paid in settlement, penalty, punitive damages
or expense of any nature (including, without limitation, attorneys' fees and
disbursements)) for any action taken, or any failure to take any action, unless
(1) the Director has breached the duties of his or her office or has failed to
perform his or her duties as a Director in good faith, in a manner he or she
reasonably believed to be in the best interests of the Corporation and with such
care, including reasonable inquiry, skill and diligence, as a person of ordinary
prudence would use under similar circumstances; and (2) the breach or failure to
perform constitutes self-dealing, willful misconduct or recklessness.
3. Personal Liability of Officers. An officer of the Corporation shall not be
personally liable, as such, to the Corporation or its shareholders for monetary
damages (including without limitation, any judgment, amount paid in settlement,
penalty, punitive damages or expense or any nature (including, without
limitation, attorneys' fees and disbursements)) for any action taken, or any
failure to take any action, unless (1) the officer has breached the duties of
his or her office or has failed to perform his or her duties as an officer in
good faith, in a manner he or she reasonably believed to be in the best
interests of the Corporation and with such care, including reasonable inquiry,
skill and diligence, as a person of ordinary prudence would use under similar
circumstances; and (2) the breach or failure to perform constitutes self-
dealing, willful misconduct or recklessness.
Tenth: Statement with Respect to Continuation of Procedure. Effective October
1, 1989:
1. On the petition of a qualified shareholder, as defined in Section 107(f) of
the General Association Act of 1988, which petition shall be directed to, and
filed with the Board of Directors, the entire Board of Directors, or a class of
the Board, where the Board is classified with respect to the power to elect
Directors (which term includes Directors elected for terms of more than one (1)
year and Directors elected by holders of specified classes or series of shares),
or any individual Director may be removed from office without assigning any
cause by the vote of shareholders entitled to cast at least a majority of the
votes which all shareholders would be entitled to cast at any annual election of
Directors or of such class of Directors.
2. Special meetings of the shareholders may be called at any time by a qualified
shareholder as defined in Section 107(f) of the General Association Act of 1988.
3. Every amendment to the articles shall be proposed by either the Board of
Directors by the adoption of a resolution setting forth the proposed amendment
or by petition of any qualified shareholder as defined in Section 107(f) of the
General Association Act of 1988, setting forth the proposed amendment, which
petition shall be directed to, and filed with, the Board of Directors.
<PAGE>
Approved and Filed: August 4, 1971
Amended and Restated: March 30, 1990
Amended: December 23, 1992
I, Secretary of Sun Company, Inc.
hereby certify that the foregoing is a true and correct copy of the Articles of
Incorporation of Sun Company, Inc.
Date:
Secretary
- -----------------------------------
<PAGE>
1
EXHIBIT 4.6
SUN COMPANY, INC.
BYLAWS
eff. 5/91
<PAGE>
2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
ARTICLE I PAGE
Directors
Section 1 - Membership......................... 1
Section 2 - Vacancies.......................... 1
Section 3 - Emergency Board.................... 1
Section 4 - Liability of Directors............. 2
Section 5 - Nomination of Directors............ 2
ARTICLE II
Meetings of the Board of Directors
Section 1 - Place.............................. 2
Section 2 - Annual & Regular Meetings.......... 2
Section 3 - Special Meetings................... 2
Section 4 - Notice............................. 2
Section 5 - Waiver of Notice................... 3
Section 6 - Notice of Adjourned Meeting........ 3
Section 7 - Quorum............................. 3
Section 8 - Consent Action..................... 3
ARTICLE III
Committees
Section 1 - Executive Committee................ 3
Section 2 - Notice............................. 3
Section 3 - Special Committees................. 3
Section 4 - Relationship to Board.............. 3
Section 5 - Quorum............................. 3
Section 6 - Vacancies.......................... 3
ARTICLE IV
Officers
Section 1 - Designation........................ 4
Section 2 - Authority.......................... 4
Section 3 - Chairman of the Board.............. 4
Section 4 - Vice Chairman of the Board......... 4
Section 5 - President.......................... 4
Section 6 - Executive Vice Presidents.......... 4
Section 7 - Vice Presidents.................... 4
Section 8 - Secretary.......................... 4
Section 9 - Treasurer.......................... 5
Section 10 - Comptroller........................ 5
Section 11 - General Auditor.................... 5
Section 12 - Assistant Officers................. 5
ARTICLE V
Meetings of Shareholders
Section 1 - Annual Meetings.................... 5
Section 2 - Special Meetings................... 5
Section 3 - Notice............................. 5
Section 4 - Quorum............................. 5
Section 5 - Voting............................. 5
Section 6 - Adjournment........................ 6
Section 7 - Proxies............................ 6
Section 8 - Shareholders List.................. 6
Section 9 - Record Date........................ 6
Section 10 - Certification by Nominee........... 6
Section 11 - Judge of Election.................. 7
</TABLE>
<PAGE>
3
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE VI
Stock Certificates
Section 1 - Description........................ 7
Section 2 - Transfers.......................... 7
Section 3 - Registered Shareholders............ 7
Section 4 - Lost Certificates.................. 7
Section 5 - Dividends.......................... 7
ARTICLE VII
Indemnification
Section 1 - General............................ 7
Section 2 - Agreements for Indemnification and
Funding............................ 8
Section 3 - Expenses........................... 8
Section 4 - Disputes........................... 8
ARTICLE VIII
General Provisions
Section 1 - Voting Shares of Other Corporations 8
Section 2 - Seal............................... 8
Section 3 - Inapplicability of Certain Sections
of the Pennsylvania Business
Corporation Law.................... 8
Section 4 - Amendments......................... 8
</TABLE>
<PAGE>
4
SUN COMPANY, INC. BYLAWS
ARTICLE I: DIRECTORS
MEMBERSHIP
Section 1. The business and affairs of the Corporation shall be managed by a
Board of Directors consisting of the number of Directors equal to those elected
at the annual meeting of shareholders or as may from time to time be determined
by the Board, except that it shall not consist of less than five members.
Except as hereinafter provided in the case of vacancies, Directors shall be
elected by ballot at the annual meeting of shareholders and shall hold office
for one year and until successors are duly elected and qualified, or until
earlier resignation or removal. Directors need not be residents of the
Commonwealth of Pennsylvania.
VACANCIES
Section 2. Vacancies in the Board of Directors may be filled by a majority
of the incumbent members of the Board, though such majority be less than a
quorum. If the number of Directors is at any time increased, the incumbent
Directors may by majority vote elect any additional Director. Such newly
elected Director shall hold office until the next annual meeting of the
shareholders and until a successor is elected and qualified, or until earlier
resignation or removal.
EMERGENCY BOARD
Section 3. In the event of any emergency by reason of nuclear attack or
other attacks by enemy forces upon the North American Continent, there shall be
constituted without further action or authority an Emergency Board of Directors.
In the event of an emergency by reason of physical disasters of national or
greater scope, an attack upon the United States outside the North American
Continent, or an imminent threat of an attack or physical disaster of national
or greater scope upon the North American Continent, there shall be constituted
an Emergency Board of Directors by declaration of the Chairman of the Board of
Directors. The Emergency Board shall consist of at least three members from the
regular Board of Directors or from officers of the Corporation or its
subsidiaries who are not members of the regular Board of Directors but who have
been designated as alternate members of the Emergency Board. The Emergency
Board may exercise all of the powers of the regular Board of Directors in the
management of the business, affairs and property of the Corporation during the
emergency and until such time as the regular Board of Directors shall resume the
exercise of its powers.
The original members of the Emergency Board shall be the Chairman, the
President and the Executive Vice Presidents who are members of the Board of
Directors, provided however, that any vacancy existing because of the
unavailability of any two of the foregoing persons shall be filled by the
alternate members. The Chairman of the Board shall serve as Chairman of any
meeting of the Emergency Board or, in the event of his unavailability for any
reason, the President or an Executive Vice President, in an order designated by
the Chairman of the Board, shall serve in this capacity. In the event of the
unavailability for any reason of all of the foregoing persons, an alternate
member shall serve as Chairman at any meeting of the Emergency Board in the
order previously designated for membership by resolution of the regular Board of
Directors.
<PAGE>
5
Meetings may be called by any member of the Emergency Board. Two members
shall constitute a quorum for the transaction of business and the act of any two
members present at a meeting shall be the act of the Emergency Board. Meetings
may be held by any means of communication and Directors shall be deemed present
if they are in communication with other Directors by any means. Notice of
meetings may be given at any time and in any manner, provided that a reasonable
effort shall be made to give actual notice to each member of the Emergency
Board.
To the extent not inconsistent with this Section 3 of Article I, the Bylaws
in their entirety shall remain in effect during any such emergency. No officer,
Director or employee acting in good faith in accordance with this Section 3 of
Article I or any resolutions made pursuant hereto, shall be liable for his
conduct unless it is willful misconduct.
LIABILITY OF DIRECTORS
Section 4. A Director of the Corporation shall not be personally liable for
monetary damages, as such, for any action taken or any failure to take any
action, unless (1) he has breached the duties of his office or has failed to
perform his duties as a Director in good faith, in a manner he reasonably
believed to be in the best interests of the Corporation and with such care,
including reasonable inquiry, skill and diligence, as a person of ordinary
prudence would use under similar circumstances; and (2) the breach or failure to
perform constitutes self-dealing, willful misconduct or recklessness.
NOMINATION OF DIRECTORS
Section 5. Nominations for election to the Board of Directors may be made by
shareholders entitled to vote for the election of Directors only in the manner
specified in this Section. Shareholders may submit nominations for
consideration by a committee appointed by the Board of Directors for that
purpose. A nomination shall be submitted in writing to the Secretary of the
Corporation no later than the December 31st prior to the Annual Meeting at which
such nomination is intended to be considered. Nominations may be made at any
meeting of shareholders called for the purpose of election of Directors if
written notice of the shareholder's intent to make such nominations at the
meeting is delivered to the Secretary of the Corporation at least 30 days before
such meeting. Such nominations and written notice shall contain the following
information:
a) name, residence and business address of the nominating shareholder;
b) a representation that the shareholders is a record holder or beneficial
owner of the Corporation's voting shares and a statement of the number of
such shares;
c) a representation that the shareholder intends to appear in person or by
proxy at the meeting to nominate the individuals specified in the notice,
if the nominations are to be made at a meeting of shareholders;
d) information regarding each nominee such as would be required to be included
in a proxy statement;
e) a description of all arrangements or understandings between and among the
shareholder and each and every nominee; and
<PAGE>
6
f) the written consent of each nominee to serve as a Director, if elected.
The judge of election or the person presiding at the meeting, in the absence of
the judge of election, shall determine whether any nomination is made according
to these procedures and should be accepted. Such decision shall be deemed
conclusive and binding on all shareholders of the Corporation.
ARTICLE II: MEETINGS OF THE BOARD OF DIRECTORS
PLACE
Section 1. Meetings of the Board of Directors, regular or special, may be
held either within or without the Commonwealth of Pennsylvania.
ANNUAL & REGULAR MEETINGS
Section 2. As soon as practicable following their election at the annual
meeting of the shareholders, the Directors shall meet for the purpose of
organization. Regular meetings of the Board of Directors thereafter may be held
at such times and at such places as the Board may by resolution determine.
SPECIAL MEETINGS
Section 3. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors, the Vice Chairman, the
President, an Executive Vice President who is a member of the Board of
Directors, or upon the written request of a majority of the Directors.
NOTICE
Section 4. No notice shall be required of the meeting of the Board of
Directors for the purpose of organization or for the regular meetings fixed as
aforesaid, but at least forty-eight hours notice shall be given by mail or
telegram of all special meetings of the Directors specifying the place, day and
hour of the meeting. Neither the business to be transacted nor the purpose of
any regular or special meeting of the Board of Directors need be specified in
the notice or waiver of notice of such meeting. This notice may be waived by a
Director in writing either before or after the meeting.
WAIVER OF NOTICE
Section 5. The attendance of a Director at any meeting shall constitute a
waiver of notice of such meeting except where a Director attends for the express
purpose of objecting to the transaction of any business because the meeting has
not been lawfully called or convened.
NOTICE OF ADJOURNED MEETING
Section 6. Notice of an adjourned meeting of the Board of Directors need
not be given if the time and place are fixed at the meeting adjourning.
<PAGE>
7
QUORUM
Section 7. At all meetings of the Board of Directors, a majority of the
Directors in office shall constitute a quorum for the transaction of business.
The act of a majority of the Directors present at any meetings at which a quorum
is present shall be the act of the Board of Directors, unless the act of a
greater or lesser number is required by statute or the Articles of
Incorporation. The majority of Directors present, though less than a quorum,
may adjourn any meeting from time to time.
CONSENT ACTION
Section 8. Any action required to be taken at a meeting of the Board or any
committee thereof shall be deemed the action of the Board of Directors or of a
committee thereof if all the Directors or committee members as the case may be,
execute, either before or after the action is taken, a written consent thereto,
and the consent is filed with the records of the Corporation.
ARTICLE III: COMMITTEES
EXECUTIVE COMMITTEE
Section 1. The Board of Directors shall designate an Executive Committee
consisting of such number of members as may be determined from time to time to
serve at the pleasure of the Board who shall be elected from the members of the
Board by a majority of the whole Board. The Committee shall elect a Chairman
from among its members. To the extent permitted by Pennsylvania Laws, the
Executive Committee may exercise all or any of the powers of the Board of
Directors in the management of the business, affairs and property of the
Corporation during the interval between meetings of the Board; provided however,
that no action shall be taken by the Executive Committee if any member of such
Committee has voted in opposition thereto.
NOTICE
Section 2. The Executive Committee need not hold its meetings at any
particular time or place, but such meeting shall be held upon reasonable notice
to members of the Committee.
SPECIAL COMMITTEES
Section 3. The Board of Directors may appoint such other standing or
special committees, and officers therefor, as it may deem proper, and, to the
extent permitted by Pennsylvania Laws, may delegate to such committees any of
the powers possessed by the Board which may be required by such committees in
carrying out the purposes for which they are appointed. Each of such committees
shall have at least three members. Membership on the Board of Directors shall
not be prerequisite to membership on such committees.
RELATIONSHIP TO BOARD
Section 4. Committees shall be responsible to the full Board of Directors
and shall report upon the exercise of their powers and duties at each regular
meeting of the Board of Directors, or when called upon by the Board.
<PAGE>
8
QUORUM
Section 5. A majority of any committee shall constitute a quorum for the
transaction of business, and shall be required to constitute the act of the
committee.
VACANCIES
Section 6. The Board of Directors may fill vacancies in any committee, and
may appoint one or more alternate members of a committee who shall have the
power to act in the absence or disability of a regular member of such committee.
The Board of Directors may abolish any committee at its pleasure, and may remove
a committee member from membership on a committee at any time, with or without
cause.
ARTICLE IV: OFFICERS
DESIGNATION
Section 1. The officers of the Corporation shall be chosen by the Board of
Directors at its organization meeting and may include a Chairman of the Board of
Directors, a President, one or more Executive Vice Presidents, one or more Vice
Presidents, any of whom at the pleasure of the Board may be designated Senior
Vice President, or Group Vice President, a Secretary, a Treasurer, a
Comptroller, and a General Auditor, all of whom shall be the principal officers
of the Corporation and may include one or more Vice Chairmen of the Board who
would be principal officers, and such other officers and assistant officers as
the Board of Directors may from time to time determine. Any number of offices
may be held by the same person, but no officer shall execute, acknowledge or
verify any instrument in more than one capacity if such instrument is required
by law to be executed, acknowledged or verified by two or more officers. Of the
officers so chosen by the Board of Directors, the Chairman of the Board of
Directors, the Vice Chairmen of the Board of Directors, and the President shall
be chosen from among the Directors. All officers of the Corporation shall hold
their offices at the pleasure of the Board of Directors.
AUTHORITY
Section 2. Notwithstanding the legal authority conferred by these Bylaws
upon the officers named herein, the Board of Directors may by resolution
establish such positions of authority, supervision and responsibility as in the
judgment of the Board may be necessary or appropriate for the internal
administration of the affairs of the Corporation. The performance of any duty
by any officer shall be conclusive evidence of his authority to act, including
the delegation of any of his powers to other officers or employees under his
direction.
The Board of Directors may designate either the Chairman of the Board or
the President as the Chief Executive Officer or the Chief Operating Officer of
the Corporation.
The Chief Executive Officer shall have general supervision of the affairs
of the Corporation, subject to the policies and direction of the Board of
Directors, and shall supervise and direct all officers and employees of the
Corporation, but may delegate in his discretion any of his powers to any officer
or such other executives as he may designate.
<PAGE>
9
The Chief Operating Officer shall have general supervision and direction of
all operating officers and employees of the Corporation but may delegate in his
discretion any of his powers to any Vice President or such other executives as
he may designate.
CHAIRMAN OF THE BOARD
Section 3. The Chairman of the Board of Directors shall preside at all
meetings of the shareholders and of the Board of Directors. He shall ex-officio
be a member of all committees of the Board of Directors except as otherwise
determined by the Board. He shall also perform such other duties as the Board
of Directors may from time to time assign to him.
VICE CHAIRMEN OF THE BOARD
Section 4. The Vice Chairmen of the Board of Directors shall perform such
duties as the Board of Directors or the Chairman may from time to time assign to
them.
PRESIDENT
Section 5. The President shall perform such duties as the Board of
Directors or the Chairman may from time to time assign to him.
EXECUTIVE VICE PRESIDENTS
Section 6. The Executive Vice Presidents shall perform such duties as
shall, from time to time, be imposed upon them by the Chairman or the President.
VICE PRESIDENTS
Section 7. The Vice Presidents shall perform such duties and shall be
responsible to such officers of the Corporation as the Chairman, President or an
Executive Vice President may direct.
SECRETARY
Section 8. The Secretary shall keep the minutes of all meetings of the
shareholders, the Board of Directors, all committees of the Board except as
otherwise designated by the Board and shall give all notices of meetings of the
shareholders, the Board and the committees of the Board of which he serves as
Secretary. He shall have control of the custody of all deeds, contracts,
agreements, and other corporate records, except as otherwise provided in these
Bylaws or by the Board of Directors, and shall attend to such correspondence of
the Corporation as the Chairman shall direct. He shall be the custodian of the
seal of the Corporation and shall affix it to any instrument requiring the same,
except as otherwise provided herein or by the Board of Directors. He shall be
responsible to such officer or officers of the Corporation as the Chairman may
designate.
TREASURER
Section 9. The Treasurer shall be responsible for all receipts and
disbursements of the Corporation and the custodianship of the Corporation's
funds. He shall have full authority, directly or by his delegation to selected
officers or other employees, to receive and give receipts for all moneys due and
payable to the Corporation from any source whatever, and to
<PAGE>
10
endorse checks, drafts, and warrants in its name and on its behalf. He shall be
responsible for depositing the funds of the Corporation in its name in such
depositories as may be designated by him; shall sign or delegate the signing of
all checks, notes and drafts and shall be charged with the general establishment
of the Corporation's policies and procedures relating to short-term financing,
cash management, credits and collections and insurance.
COMPTROLLER
Section 10. The Comptroller shall be the chief accounting officer of the
Corporation and shall arrange for the keeping of adequate records of all assets,
liabilities and transactions of the Corporation.
GENERAL AUDITOR
Section 11. The General Auditor shall be chief control officer of the
Corporation and shall be responsible for the establishment of internal controls.
He shall see that adequate audits are currently and regularly made.
ASSISTANT OFFICERS
Section 12. Assistant officers shall perform such duties as their
immediate principal officers may from time to time direct or delegate, and,
during the absence of said principal officers, shall perform all the duties of
said principal officers.
ARTICLE V: MEETINGS OF SHAREHOLDERS
ANNUAL MEETINGS
Section 1. The annual meeting of the shareholders for the election of
Directors for the ensuing year and for the transaction of such other business as
may be properly brought before the meeting shall be held each year on such day
and at such time and place, either within or without Pennsylvania, as shall be
determined in advance by the Board of Directors.
SPECIAL MEETINGS
Section 2. Special meetings of the shareholders may be called at any time
by the Chairman of the Board of Directors or by the order of the Board of
Directors or upon the written request of a qualified shareholder as defined in
section 107(f) of the General Association Act of 1988.
NOTICE
Section 3. Unless waived, written notice of the time, place and purpose of
every meeting of the shareholders shall be given by the Secretary not less than
five nor more than ninety days before the date of the meeting either personally
or by mail, to each shareholder of record entitled to vote at such meeting.
<PAGE>
11
QUORUM
Section 4. Unless otherwise provided in the Articles of Incorporation, by
statute or these Bylaws, at all meetings of shareholders, the presence in person
or by proxy, of shareholders entitled to cast a majority of the votes which all
shareholders are entitled to cast at the meeting shall constitute a quorum for
the transaction of business.
VOTING
Section 5. When a quorum is present at any meeting of the
shareholders, the shareholders entitled to vote and casting a majority of the
votes at the meeting shall decide any question brought before such meeting,
unless the question is one which, by express provision of law, the Articles of
Incorporation, or these Bylaws, requires a different vote, in which case such
express provision shall govern and control the decision of such question. The
shareholders present in person or by proxy at any duly organized meeting may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum.
ADJOURNMENT
Section 6. The holders of shares entitled to cast a majority of the votes
present or represented at any meeting may adjourn the meeting from time to time,
though such majority constitutes less than a quorum. When a meeting is
adjourned to another time or place, it shall not be necessary to give notice of
the adjourned meeting if the time and place to which the meeting is adjourned
are announced at the meeting adjourning and at the adjourned meeting only such
business is transacted as might have been transacted at the original meeting.
PROXIES
Section 7. Every shareholder entitled to vote at a meeting of shareholders
or to express consent or dissent without a meeting may authorize another person
or persons to act for him by proxy. Every proxy shall be executed in writing by
the shareholder or his agent. No proxy shall be valid after eleven months from
the date of its execution, unless a longer time is expressly provided therein.
Unless it is coupled with an interest, a proxy shall be revocable at will. A
proxy shall not be revoked by the death or incapacity of the shareholder but
shall continue in force until revoked by the personal representative or guardian
of the shareholder. The presence at any meeting of a shareholder who has given
a proxy shall not revoke such proxy unless the shareholder shall file written
notice of such revocation with the Secretary of the meeting prior to the voting
of such proxy.
SHAREHOLDERS LIST
Section 8. The officer or agent having charge of the stock transfer books
for shares of the Corporation shall make and certify, a complete list of the
shareholders entitled to vote at a shareholders, meeting or any adjournment
thereof. Such list shall be arranged alphabetically within class and series,
with the address of and the number of shares held by each shareholder. The
information contained in such list shall be made available to the shareholders
by appropriate means at the time and place of the meeting of shareholders.
<PAGE>
12
RECORD DATE
Section 9. For the purpose of determining the shareholders entitled to
notice of or to vote at any meeting of shareholders or any adjournment thereof,
or to express consent to or dissent from any proposal without a meeting, or for
the purpose of determining shareholders entitled to receive payment of any
dividend or allotment of any right, or for the purpose of any other action, the
Board of Directors may fix, in advance, a record date for any such determination
of shareholders. Such date shall not be more than ninety days before the date
of such meeting nor more than ninety days prior to any other action. In such
case only such shareholders as shall be shareholders of record on the date so
fixed shall be entitled to notice of, and to vote at such meeting, or to receive
payment of such dividend, or to receive such allotments of rights or to exercise
such rights, as the case may be, notwithstanding transfer of any shares on the
books of the Corporation after any record date so fixed. When the determination
of shareholders of record entitled to notice of or to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, unless the Board fixes a new record date under
this section for the adjourned meeting.
CERTIFICATION BY NOMINEE
Section 10. The nominee shareholder of record of a shareholder dividend
reinvestment plan or of an employee benefit plan may certify in writing to the
Corporation that all or a portion of the shares of the Corporation registered in
the name of such nominee are held for the account of a specified person or
persons. Such certification shall be received by the Corporation no later than
15 days after the record date for each special or annual meeting of
shareholders. The certification shall be in the form specified by the
Corporation and shall include such information as the name, address and number
of shares of the beneficial owners, taxpayer identification number, and any
other information that the Corporation may deem necessary. Upon receipt by the
Corporation of such certification, the person or persons specified in the
certification shall be deemed, for the purposes of notice of and voting at the
meeting of shareholders, to be the holders of record of the number of shares
specified, in place of the nominee shareholder or record.
JUDGE OF ELECTION
Section 11. In advance of any meeting of shareholders the Board may
appoint one or three judges of election to act at the meeting or any adjournment
thereof. If such judges are not so provided by the Board or shall fail to
qualify, the person presiding at a shareholder meeting may, and on the request
of any shareholder entitled to vote thereat shall, make such appointment. In
case any person appointed as judge of election fails to appear or act, the
vacancy may be filled by appointment made by the Board in advance of the meeting
or at the meeting by the person presiding thereat. Each judge of election,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of judge of election at such meeting with
strict impartiality and according to the best of his ability. No person shall
be elected a Director at a meeting at which he has served as a judge of
election.
<PAGE>
13
ARTICLE VI: STOCK CERTIFICATES
DESCRIPTION
Section 1. Certificates evidencing the ownership of the shares of stock of
the Corporation of any class shall be issued to those entitled to them by
transfer or otherwise. Each certificate shall bear a distinguishing number, the
actual or facsimile signatures of the Chairman of the Board and of the
Secretary, the actual or facsimile seal of the Corporation, and such recitals as
may be required by law. The stock certificates in any class or classes shall be
issued in numerical order, and a full record of the issuance of each such
certificate shall be made in the books usually kept for that purpose or required
by law. The certificates shall be of such form and design as the Board of
Directors may adopt and the form and design thereof may from time to time be
changed by the Board.
TRANSFERS
Section 2. All shares of stock may be transferred on the books of the
Corporation by the registered holders thereof or by their attorneys legally
constituted or their legal representatives by surrender of the certificates
therefor for cancellation and a written assignment of the shares evidenced
thereby. The Board of Directors may from time to time appoint such Transfer
Agents and Registrars of stock as it may deem advisable and may define their
powers and duties.
REGISTERED SHAREHOLDERS
Section 3. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold such person liable for calls
and assessments and shall not be bound to recognize any equitable or other claim
to or interest in such shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by the
laws of Pennsylvania.
LOST CERTIFICATES
Section 4. Any person or persons applying for a certificate of stock to be
issued in lieu of one alleged to be lost or destroyed shall, pursuant to the
laws of Pennsylvania relating to lost or destroyed certificates of stock,
furnish to the Corporation such information as the Board of Directors may
require to ascertain whether a certificate of stock has been lost or destroyed.
DIVIDENDS
Section 5. If any date appointed for the payment of any dividend, or fixed
for determining the shareholders of record to whom the same is payable, shall in
any year fall upon a Sunday or legal holiday, then such dividend shall be
payable or such shareholders of record shall be determined on the next
succeeding day not a Sunday or legal holiday.
<PAGE>
14
ARTICLE VII: INDEMNIFICATION
GENERAL
Section 1. The Corporation shall pay on behalf of any individual who is or
was a Director, officer, employee or agent of the Corporation, or who is or was
serving at the request of the Corporation as Director, officer, trustee,
fiduciary, employee or agent of any other domestic or foreign corporation or
partnership, joint venture, sole proprietorship, trust or other enterprise, or
who is or was serving as a fiduciary with respect to any employee benefit plan
as a result of his employment by, or service as a Director of, the Corporation
("Indemnified Person") all expenses, including attorneys' fees and
disbursements, incurred by such person in the defense or settlement of any
civil, criminal, administrative or arbitrative proceeding pending, threatened or
completed against such person by reason of his being or having been such
Indemnified Person, and shall indemnify such person against amounts paid or
incurred by him in satisfaction of settlements, judgments, fines, and penalties
in connection with any such proceeding, including any proceeding by or in the
right of the Corporation, except where such indemnification is expressly
prohibited by applicable law or where the acts or failures to act of the
Indemnified Person constitute willful misconduct, self-dealing or recklessness.
The foregoing right to payment and to indemnification shall not be exclusive of
other rights to which such person may be entitled as a matter of law or
otherwise.
AGREEMENTS FOR INDEMNIFICATION AND FUNDING
Section 2. The Corporation is authorized, but not required, to enter into
agreements for indemnification with any Indemnified Person, however, failure to
enter into such agreements shall not in any way limit the rights of such
Indemnified Persons hereunder. The Corporation may, in addition to the
foregoing, create a fund of any nature, which may, but need not be, under the
control of a trustee, or otherwise secure or insure in any manner its
indemnification obligations.
EXPENSES
Section 3. Expenses incurred by a Director, officer, employee or agent in
defending a civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation.
DISPUTES
Section 4. Any dispute related to the right to indemnification of or
advancement of expenses to Indemnified Persons as provided under this Article,
except with respect to indemnification for liabilities arising under the
Securities Act of 1933 which the Corporation has undertaken to submit to a court
for adjudication, shall be decided only by arbitration in accordance with the
commercial arbitration rules then in effect of the American Arbitration
Association.
<PAGE>
15
ARTICLE VIII: GENERAL PROVISIONS
VOTING SHARES OF OTHER CORPORATIONS
Section 1. The Chairman or the Vice Chairman of the Board of Directors, the
President, any Executive Vice President, any Vice President, or the Secretary of
the Corporation may vote, or appoint a proxy to vote, the shares of any other
business corporation or nonprofit corporation which are registered in the name
of the Corporation.
SEAL
Section 2. The seal of the Corporation shall be circular in form, and shall
have inscribed thereon the name of the Corporation, the year of its organization
and the words "Corporate Seal Pennsylvania."
Inapplicability of Certain Sections of the Pennsylvania Business Corporation Law
Section 3. 15 PA.C.S sections 2541-2548 (formerly Section 910), 15 Pa.C.S.
Sections 2551-2556 (formerly Section 911) and 15 Pa.C.S. Sections 2571-2575 as
adopted December 23, 1983, March 23, 1988 and April 27, 1990, respectively,
shall not be applicable to this Corporation.
AMENDMENTS
Section 4. These Bylaws, including Article I, Section 4 entitled "Liability
of Directors" and Article VII entitled "Indemnification," may be altered or
amended at any annual meeting of shareholders, or at any special meeting called
for that purpose, by the shareholders entitled to vote and casting a majority of
the votes at the meeting, or at any duly constituted meeting of the Board of
Directors, by a majority of the Directors then in office. Any alteration or
amendment of Article I, Section 4 and Article VII shall be prospective only and
shall not affect any rights or obligations then existing.
CERTIFICATE
I, Secretary of Sun Company, Inc., a Pennsylvania
corporation, hereby certify that the foregoing is a true, correct and complete
copy of the Bylaws of Sun Company, Inc., as amended on July 5, 1990, and that
said Bylaws are in full force and effect on this date.
In Witness Whereof, I have set my hand and the seal of Sun Company,
Inc., this day of 19
SUN COMPANY, INC.
Secretary
BYLAWS FOOTNOTE:
All references to gender are denoted as "he."
<PAGE>
EXHIBIT 4.7
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
CERTICATE FOR NOT MORE THAN 100,000 SHARES
NUMBER
C000000
[LOGO OF SUN COMPANY APPEARS HERE]
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
INCORPORATED UNDER THE LAWS OF COMMON STOCK
THE COMMONWEALTH OF PENNSYLVANIA PAR VALUE $1.OO
[LOGO OF SUN COMPANY APPEARS HERE]
THIS CERTIFICATE IS TRANSFERABLE CUSIP 866762 10 7
IN THE CITIES OF NEW YORK, SEE REVERSE FOR CERTAIN DEFINITIONS
WILMINGTON, DE. AND CALGARY, ALBERTA
SUN COMPANY, INC.
- --------------------------------------------------------------------------------
THIS IS TO CERTIFY THAT
SPECIMEN
IS THE OWNER OF
- --------------------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
SUN COMPANY,INC (hereinafter referred to as the "Company") transferrable on
the books of the Company by the holder hereof in person or by duly authorized
attorney upon surrender of this certificate properly endorsed. This
certificate and the shares represented hereby are issued and shall be held
subject to all of the provisions in the Articles of Incorporation, as amended,
of the Company (a copy of which certificate is on file with the Transfer
Agent), to all of which the holder, by acceptance hereof, assents. This
certificate is not valid until countersigned by the Transfer Agent and
registered by the Registrar. Witness the facsimile seal of the Company and the
facsimile signatures of its authorized officers.
CERTICATE OF STOCK
DATED
/s/ Donald J. Ainsworth /s/ Robert H. Campbell
SECRETARY CHAIRMAN
REGISTERED: COUNTERSIGNED:
SUN COMPANY, INC. SUN COMPANY, INC.
(WILMINGTON, DE) (WILMINGTON, DE)
BY: BY:
/s/ Daria A. Kachmar
AUTHORIZED OFFICER. TRANSFER AGENT.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
CERTIFICATE FOR NOT MORE THAN 100,000 SHARES
SHARES
[SEAL APPEARS HERE]
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
<PAGE>
SUN COMPANY, INC.
A COMPLETE STATEMENT OF THE PREFERENCES, QUALIFICATIONS, PRIVILEGES,
LIMITATIONS, RESTRICTIONS AND OTHER SPECIAL OR RELATIVE RIGHTS GRANTED TO OR
IMPOSED UPON THE SHARES OF EACH CLASS OF STOCK OF THE CORPORATION MAY BE
OBTAINED, WITHOUT CHARGE, EITHER AT THE OFFICE OF THE CORPORATION OR AT THE
OFFICE OF A TRANSFER AGENT.
----------------------------
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN
OR DESTROYED THE COMPANY WILL REQUIRE A BOND OF INDEMNITY AS A
CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
----------------------------
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT -- Custodian
---------- ----------
(Cust) (Minor)
under Uniform Gifts to Minors
Act
---------------------
(State)
Additional abbreviations may also be used though not in the above
list.
For value received, _______________, hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -----------------------------------------------------------------Shares of the
capital stock represented by the within Certificate, and do hereby irrevocably
constitute and appoint
--------------------------------------------------------
- ------------------------------------------------------------------------------
Attorney to transfer the said stock in the books of the within named Company
with full power of substitution in the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
Dated
----------------------------
SIGNATURE GUARANTEED BY: SIGN HERE
-----------------------------------------
- ------------------------------------------------------------
Notice: The signature of this assignment must correspond with the name as
written upon the face of the certificate in every particular, without
alteration or enlargement, or any change whatever.
<PAGE>
Exhibit 5
Jack L. Foltz
Vice President
and General Counsel
SUN
Sun Company, Inc.
Ten Penn Center
1801 Market Street
Philadelphia, PA 19103
May 20, 1994
Sun Company, Inc.
Ten Penn Center
1801 Market Street
Philadelphia, PA 19103-1699
Gentlemen:
As Vice President and General Counsel of Sun Company, Inc., a
Pennsylvania corporation (the "Company"), I have been asked to deliver this
opinion in connection with the registration under the Securities Act of 1933,
as amended, of up to $700,000,000 in market value of the Company's debt
securities (the "Debt Securities"), Cumulative Preference Stock (the
"Preference Stock"), Common Stock, $1 par value (the "Common Stock" and
collectively with the Preference Stock, the "Equity Securities"), and warrants
to purchase Debt Securities and Equity Securities (the "Warrants"). I or
members of my staff have examined the Company's Articles of Incorporation and
Bylaws, both as presently in effect; the form of Indenture dated as of May 15,
1994 (the "Senior Indenture") between the Company and Citibank, N.A.; the form
of Indenture dated as of May 15, 1994 (the "Subordinated Indenture" and
collectively with the Senior Indenture, (the "Indentures") between the Company
and Bankers Trust Company; the undated form of Warrant Agreement to purchase
Debt securities filed as an exhibit to the Registration Statement (as that
term is hereinafter defined) (the "Debt Warrant Agreement"); the undated form
of Warrant Agreement to purchase Equity Securities filed as an exhibit to the
Registration Statement (the "Equity Warrant Agreement" and collectively with
the Debt Warrant Agreement, the "Warrant Agreements"); a resolution of the
Company's Board of Directors relating to the issuance, delivery and
registration of the Debt Securities, Equity Securities, and Warrants; and the
Registration Statement on Form S-3 as filed with the Securities and Exchange
Commission on the date hereof (the "Registration Statement"). In connection
with the opinions set forth below, I or members of my staff have also
examined, and have relied as to matters of fact upon, originals or copies,
certified or otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such certificates or
comparable documents of public officials and of officers and representatives
of the Company, and have made such other and further investigations as we have
deemed relevant and necessary as a basis for such opinions.
<PAGE>
Sun Company, Inc.
May 20, 1994
Page Two
Based on the foregoing and subject to the qualifications and limitations
stated herein, it is my opinion that:
1. The Company has been duly incorporated and is in good standing under
the laws of the Commonwealth of Pennsylvania;
2. The Indentures have been duly and validly authorized and, when
executed and delivered, will constitute valid and binding agreements of the
Company, enforceable against it in accordance with their terms;
3. The Debt Securities have been duly and validly authorized and , when
executed, authenticated, delivered and paid for in the manner described in the
Registration Statement, the Debt Securities will constitute validly issued and
binding obligations of the Company, enforceable against it in accordance with
their terms;
4. The shares of Equity Securities when authorized, issued and paid for
(or issued upon conversion of Debt Securities pursuant to the Indentures or
upon exercise of the Warrants) in the manner described in the Registration
Statement, will be validly issued, fully paid and nonassessable; and
5. The Warrant Agreements and the Warrants have been duly and validly
authorized and, when appropriately completed, executed and delivered in the
manner described in the Registration Statement, will constitute valid and
binding obligations of the Company, enforceable against it in accordance with
their terms.
The opinions expressed in numbered paragraphs 2, 3, 4 and 5 above are
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, by general equitable principles (regardless of
whether considered in equity or at law) and an implied covenant of good faith
and fair dealing.
<PAGE>
Sun Company, Inc.
May 20, 1994
Page Three
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of my name in the Prospectus under the
caption "Legal Opinions."
Very truly yours,
/s/ Jack L. Foltz
--------------------
Jack L. Foltz
<PAGE>
EXHIBIT 23.1
CONSENT OF COUNSEL
The consent of Jack L. Foltz, Esq., Vice President and General Counsel of
the Company, is included in his opinion filed as Exhibit 5 of this Registration
Statement.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of our reports dated February 15, 1994 (which include an explanatory
paragraph regarding the Company's change in method of accounting for income
taxes in 1993, the Company's change in method of accounting for the cost of
postretirement health care and life insurance benefits in 1992 and the Company's
change in method of accounting for the cost of crude oil and refined product
inventories at Suncor Inc., the Company's Canadian subsidiary, in 1991) on our
audits of the consolidated financial statements and financial statement
schedules of Sun Company, Inc. and subsidiaries as of December 31, 1993 and
1992, and for each of the three years in the period ended December 31, 1993,
which reports are included or incorporated by reference in the Sun Company, Inc.
Annual Report on Form 10-K, as amended for the year ended December 31, 1993.
We also consent to the references to our firm set forth under the caption
"Experts" in this Registration Statement.
COOPERS & LYBRAND
2400 Eleven Penn Center
Philadelphia, PA 19103
May 19, 1994
<PAGE>
Exhibit 23.3
CONSENT OF COUNSEL
I hereby consent to the use of my name under the caption "Legal Opinions" in
the Prospectus included in the Registration Statement on Form S-3 of Sun
Company, Inc. filed with the Securities and Exchange Commission on the date
hereof.
JONATHAN C. WALLER
Philadelphia, Pennsylvania
May 20, 1994
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned officers and/or
directors of Sun Company, Inc., a Pennsylvania corporation ("Company") which
intends to file with the Securities and Exchange Commission, under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on Form S-3 with respect to registration under said Act of up to $700 million of
debt securities, equity securities and warrants to purchase debt and equity
securities, of the Company, each hereby constitutes and appoints the Senior Vice
President and Chief Financial Officer, the Corporate Secretary, and the
Comptroller, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
to act in his or her name, place and stead, in any and all capacities, to sign
said Registration Statement and any related documents, including any and all
future amendments thereto, and to file such Registration Statement and any
amendments, with all exhibits thereto, and any and all other documents in
connection therewith, with the Securities and Exchange Commission, hereby
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform any and all acts and things requisite and
necessary to be done, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or either of them, or their or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals
this 5th day of May, 1994.
s/ROBERT M. AIKEN, JR.
Robert M. Aiken, Jr.
Senior Vice President and Chief
Financial Officer
(Principal Financial Officer)
s/DONALD J. AINSWORTH
Donald J. Ainsworth
Corporate Secretary
s/ROBERT H. CAMPBELL
Robert H. Campbell
Chairman of the Board, Chief
Executive Officer, President and
Director (Principal Executive
Officer)
s/RAYMOND E. CARTLEDGE
Raymond E. Cartledge
Director
s/RICHARD L. CARTLIDGE
Richard L. Cartlidge
Comptroller
(Principal Accounting Officer)
s/ROBERT E. CAWTHORN
Robert E. Cawthorn
Director
s/MARY J. EVANS
Mary J. Evans
Director
s/THOMAS P. GERRITY
Thomas P. Gerrity
Director
s/JAMES G. KAISER
James G. Kaiser
Director
s/THOMAS W. LANGFITT
Thomas W. Langfitt
Director
s/R. ANDERSON PEW
R. Anderson Pew
Director
s/ALBERT E. PISCOPO
Albert E. Piscopo
Director
s/WILLIAM F. POUNDS
William F. Pounds
Director
s/B. RAY THOMPSON, JR.
B. Ray Thompson, Jr.
Director
s/ALEXANDER B. TROWBRIDGE
Alexander B. Trowbridge
Director
<PAGE>
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305(b)(2) ____
________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. Employer
Identification No.)
399 Park Avenue, New York, New York 10043
(Address of principal executive offices) (Zip Code)
________________________
Sun Company, Inc.
(Exact name of obligor as specified in its charter)
Pennsylvania 23-1743282
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Ten Penn Center
1801 Market Street 19103-1699
Philadelphia, Pennsylvania (Zip Code)
(Address of principal executive
offices)
________________________
Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of exhibits.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now
in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement
No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration Statement
No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to
T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b)
of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to
Registration Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of December 31, 1993 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
2
<PAGE>
---------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 9th day
of May, 1994.
CITIBANK, N.A.
By /s/ Carol Ng
------------------------------
Carol Ng
Assistant Vice President
3
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
CITIBANK, N.A.
of New York in the State of New York, at the close of business on December 31,
1993, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161, Charter Number 1461 Comptroller of
the Currency Northeastern District.
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..............$ 5,863,000
Interest-bearing balances....................................... 7,137,000
Securities........................................................ 11,442,000
Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds sold.............................................. 1,467,000
Securities purchased under agreements to resell................. 1,261,000
Loans and lease financing receivables:
Loans and leases, net of unearned income........$115,952,000
LESS: Allowance for loan and lease losses...... 3,471,000
-----------
Loans and leases, net of unearned income and allowance.......... 112,481,000
Assets held in trading accounts................................... 15,259,000
Premises and fixed assets (including capitalized leases).......... 3,041,000
Other real estate owned........................................... 3,371,000
Investments in unconsolidated subsidiaries and associated
companies........................................................ 983,000
Customers' liability to this bank on acceptances outstanding...... 1,512,000
Intangible assets................................................. 29,000
Other assets...................................................... 11,866,000
------------
TOTAL ASSETS......................................................$175,712,000
============
LIABILITIES
Deposits:
In domestic offices.............................................$ 34,236,000
Noninterest-bearing...........................$ 11,921,000
Interest-bearing.............................. 22,315,000
------------
In foreign offices, Edge and Agreement subsidiaries and IBFs.... 94,076,000
Noninterest-bearing........................... 6,515,000
Interest-bearing.............................. 87,561,000
------------
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased......................................... 4,113,000
Securities sold under agreements to repurchase.................. 1,190,000
Other borrowed money.............................................. 12,053,000
Mortgage indebtedness and obligations under capitalized leases.... 285,000
Bank's liability on acceptances executed and outstanding.......... 1,530,000
Notes and debentures subordinated to deposits..................... 4,700,000
Other liabilities................................................. 12,462,000
------------
TOTAL LIABILITIES.................................................$164,645,000
------------
EQUITY CAPITAL
Common stock......................................................$ 751,000
Surplus........................................................... 5,912,000
Undivided profits and capital reserves............................ 5,066,000
Cumulative foreign currency translation adjustments............... (662,000)
------------
TOTAL EQUITY CAPITAL..............................................$ 11,067,000
------------
TOTAL LIABILITIES AND EQUITY CAPITAL..............................$175,712,000
============
</TABLE>
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN
We, the undersigned directors, attest, to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
and is true and correct.
CHRISTOPHER J. STEFFEN )
PEI-YUAN CHIA ) Directors
PAUL J. COLLINS )
<PAGE>
Exhibit 25.2
- -----------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b)(2)
---------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-4941247
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) identification no.)
Four Albany Street
New York, NY 10006
(Address of principal (Zip Code)
executive offices)
----------------------
SUN COMPANY, INC.
(Exact name of obligor as specified in the charter)
Pennsylvania 23-1743282
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
Ten Penn Center
1801 Market Street 19103
Philadelphia, PA (Zip Code)
(Address of principal executive offices)
-------------------------------
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------------------------------------
<PAGE>
-2-
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, N.Y.
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None
Items 3. - 15.
Not Applicable.
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990 and Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated June 23, 1992 - Incorporated herein
by reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-48267.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
<PAGE>
-3-
Exhibit 4- Existing By-Laws of Bankers Trust Company, dated September 21,
1993 - Incorporated herein by reference to Exhibit 4 with Form T-1
Statement, Registration No. 33-52359.
Exhibit 5- Not applicable.
Exhibit 6- Consent of Bankers Trust Company required by Section 321(b) of the
Act. - Incorporated herein by reference to Exhibit 6 filed with
Form T-1 Statement, Registration No. 22-18864.
Exhibit 7- A copy of the latest report of condition of Bankers Trust Company
dated as of December 31, 1993 - Incorporated herein by reference to
Exhibit 7 filed with Form T-1 Statement, Registration No. 33-76710.
Exhibit 8- Not Applicable
Exhibit 9- Not Applicable
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, Bankers Trust Company, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 6th day of May, 1994.
BANKERS TRUST COMPANY
By: Rossana Abueva
----------------
Rossana Abueva
Assistant Treasurer
