<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 31, 1996
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TELEDYNE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 95-2282626
(State or other (I.R.S. Employer
jurisdiction of Identification
incorporation or Number)
organization)
</TABLE>
2049 CENTURY PARK EAST
LOS ANGELES, CALIFORNIA 90067
(310) 277-3311
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
--------------------------
JUDITH R. NELSON, ESQ.
GENERAL COUNSEL AND SECRETARY
2049 CENTURY PARK EAST
LOS ANGELES, CALIFORNIA 90067
(310) 277-3311
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
WITH COPIES TO:
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<S> <C>
Alvin G. Segel, Esq. D. Stephen Antion, Esq.
Irell & Manella O'Melveny & Myers
1800 Avenue of the Stars 400 South Hope Street
Los Angeles, California 90067 Los Angeles, California 90071
(310) 277-1010 (213) 669-6000
</TABLE>
--------------------------
APROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of the Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
- -------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
- -------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTERED PER NOTE (1) PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities................................... $400,000,000 100% $400,000,000 $137,932.00
</TABLE>
(1) 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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED JANUARY 31, 1996
[LOGO]
TELEDYNE, INC.
DEBT SECURITIES
------------------
Teledyne, Inc. ("Teledyne" or the "Company") may from time to time offer
unsecured debt securities consisting of debentures, notes and/or other unsecured
evidences of indebtedness (the "Debt Securities") in one or more series in an
aggregate offering price of up to $400,000,000 (or the equivalent in foreign
denominate currency or units based on or relating to currencies). The Debt
Securities may be offered as separate series in amounts, at prices and on terms
to be determined at the time of sale. The accompanying Prospectus Supplement
sets forth, with regard to the series of Debt Securities in respect of which
this Prospectus is being delivered, the title and the terms of the Debt
Securities, including the aggregate principal amount, authorized denominations
(which may be in United States dollars, in any other currency or in units based
on or relating to currencies), maturity, rate (which may be fixed or variable),
if any, and time of payment of any interest, any redemption, extension or early
repayment terms, any provision for sinking fund payments, any index, formula or
other method used to determine the amount of principal, premium, if any, or
interest, any listing on a securities exchange, the initial public offering
price, the net proceeds to the Company and other specific terms relating to the
offering and sale of such series of Debt Securities.
The Company may sell the Debt Securities to or through underwriters and may
also sell Debt Securities directly to other purchasers or through agents. Such
underwriters may include Goldman, Sachs & Co. or may be a group of underwriters
represented by firms including Goldman, Sachs & Co. Goldman, Sachs & Co. may
also act as agents. See "Plan of Distribution". The accompanying Prospectus
Supplement sets forth the names of any underwriters or agents involved in the
sale of the Debt Securities in respect of which this Prospectus is being
delivered, the principal amounts, if any, to be purchased by underwriters and
the compensation, if any, of such underwriters or agents.
------------------------
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 ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
GOLDMAN, SACHS & CO.
----------------
The date of this Prospectus is , 1996
<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 and information statements and other information
with the Securities and Exchange Commission (the "Commission"). Copies of such
material can be obtained by mail from the Public Reference Section of the
Commission, at Judiciary Plaza, 450 Fifth Street N.W., Washington, D.C. 20549,
at prescribed rates. In addition, such reports, proxy and information statements
and other information can be inspected and copied at the public reference
facility referenced above and at the Commission's regional offices at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511 and 7 World Trade Center, 13th Floor, New York, New York
10048. Such reports, proxy and information statements and other information
concerning the Company can also be inspected and copied at the New York Stock
Exchange, 20 Broad Street, New York, New York 10005 and at the Pacific Stock
Exchange, 301 Pine Street, San Francisco, California 94104.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended. 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. For further information, reference is hereby made
to the Registration Statement.
------------------------
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following document filed with the Commission pursuant to the Exchange
Act is incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference in this Prospectus and shall be deemed a part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall
be deemed to be modified or superseded for all purposes to the extent that a
statement contained in this Prospectus, or in any other subsequently filed
document which is also, or is deemed to be, incorporated by reference, modifies
or replaces such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Prospectus, except as so modified or
superseded. The Company will provide without charge to each person to whom this
Prospectus has been delivered, on written or oral request of such person, a copy
(without exhibits, unless such exhibits are specifically incorporated by
reference into such documents) of any or all documents incorporated by reference
in this Prospectus. Requests for such copies should be addressed to Secretary,
Teledyne, Inc., 2049 Century Park East, Los Angeles, California 90067, telephone
number (310) 277-3311.
<PAGE>
THE COMPANY
The following summary is qualified in its entirety by the more detailed
information and financial statements incorporated by reference in this
Prospectus.
Teledyne, Inc. ("Teledyne" or the "Company") is a technology-based
manufacturing corporation serving worldwide customers with commercial and
government-related aviation and electronics products; specialty metals for
consumer, industrial and aerospace applications; and industrial and consumer
products. Teledyne was incorporated in the state of Delaware in 1960. The
Company's principal executive offices are located at 2049 Century Park East, Los
Angeles, California 90067, and its telephone number is (310) 277-3311.
COMPANY OVERVIEW
During 1992-94, Teledyne divested over thirty businesses with total sales of
about $750 million. The decision to divest was based on whether the businesses
fit into Teledyne's model of technology-based, manufacturing businesses with
attractive futures and synergistic prospects with other Teledyne businesses.
Beginning in mid-1993, and extending through 1994, Teledyne undertook a
major realignment of its continuing businesses, consolidating them into fewer
operating companies, eliminating an entire layer of corporate management and
1,200 overhead and support positions. The intent of the realignment was to
streamline operations to allow more successful exploitation of business
opportunities, enable the Company to compete more effectively in today's
increasingly complex business environment, give Teledyne greater concentration
and increased focus in the markets in which it competes, and better serve
customers through more robust operating units. The Company believes that the
resulting operating units provide Teledyne with a strong platform for
ProfitableGrowth.
The Company's strategy emphasizes building on its strongest market
positions, through both internal growth and acquisitions. The business plans of
the Company's operating units concentrate on four central themes: (1) business
renewal and growth through process improvement and new product development; (2)
expanded international business, requiring internationally competitive costs and
products; (3) developing commercial products from defense technologies, drawing
on Teledyne's expertise in devices and components which have direct commercial
application; and (4) acquisition of businesses highly complementary to
Teledyne's existing businesses that add market share or geographic reach to
operations where the Company already has a strong position.
The Company believes that its strategy is already bearing fruit. Sales and
earnings from continuing operations for 1995 increased significantly over 1994.
Three acquisitions completed in 1995 should deliver over $100 million in sales
in 1996. All three of these acquisitions add market share and international
reach to businesses where Teledyne already had strong positions in North
American markets. New products introduced during 1995 are expected to contribute
to 1996 performance. The Company sees long-term growth opportunities across many
of its businesses and seeks to increase market strength and focus within fewer
businesses through careful allocation of capital spending, selected
complementary acquisitions, and occasional divestitures of non-complementary
businesses.
Teledyne will continue to operate a diversified set of businesses, though
certainly fewer in number than in the past. These businesses provide multiple
opportunities to share resources, cross-fertilize ideas and technology, and
collaborate on initiatives that one business could not pursue alone, leading to
overall Teledyne performance greater than what the individual businesses would
produce on their own.
Finally, by the end of 1995, the Company had resolved numerous legal
matters, mostly disputes with the U.S. government over events that had occurred
in government contracting or government licensed businesses largely during the
1980's or earlier, including all issues believed to entail significant economic
threats to the Company. Over the past few years, Teledyne has developed and
implemented a
3
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comprehensive business ethics and compliance program, for both its commercial
and government businesses, designed to prevent or significantly reduce the
likelihood of a repetition of the circumstances that gave rise to these prior
legal matters.
The following is a description of Teledyne's products and services by
business segment:
AVIATION & ELECTRONICS SEGMENT
Operating companies in Teledyne's Aviation & Electronics Segment provide the
following products and services:
ELECTRONIC COMPONENTS AND DEVICES
A wide range of electronic chips, components and devices are designed,
manufactured and sold worldwide for a variety of aerospace, defense-related,
medical, industrial and consumer applications.
Teledyne's hybrid microcircuits are widely used in military, space,
industrial and medical applications. These compact and complex electronic
building blocks combine multiple transistors and integrated circuits in
multi-chip modules where small packaging sizes, reliability and light weight are
of paramount importance. Thousands of these microcircuits, the size of postage
stamps, have been produced, and are providing the precise control required for
heart pacemakers and interplanetary missions, as well as many other uses.
Using advanced microcircuit technology and encryption algorithms, Teledyne
is developing equipment to provide cryptographic security for commercial
wideband telecommunications applications.
On a still larger scale are Teledyne's high power traveling wave tubes, used
to transmit thousands of telephone conversations or a dozen television channels
around the world simultaneously via satellite networks. Similar types of
traveling wave tubes are used in the latest airborne and ground-based electronic
countermeasure equipment.
In the microwave industry, Teledyne is a leading supplier of ferrite
components and switching devices, as well as filters, oscillators and integrated
subsystems. Monolithic microwave integrated circuits are provided for both
commercial and military applications.
Other components include operational amplifiers, digital-analog converters,
miniature relays, hybrid switching devices, radar augmenters, lower power
microwave tubes, flexible printed-circuit interconnections, and switches.
AVIATION PROPULSION SYSTEMS
Aviation propulsion systems, both piston and small gas turbine engines, are
designed, manufactured and sold domestically and internationally for general
aviation and defense-related purposes. The piston engine products, sold under
the Continental name, are used by several general aviation aircraft original
equipment manufacturers (OEMs) and after-market suppliers. Continental's piston
engines have been powering airplanes for 60 years, and today about half of the
general aviation piston engines produced in the United States are built by
Teledyne and used worldwide. The small gas turbine engines are used primarily in
aerial targets, drones and cruise missiles.
ENGINEERING SERVICES
A wide range of engineering services are provided to government defense and
aerospace customers as well as commercial customers. These services include
equipment design and engineering support for scientific experiments flown on the
space shuttle and systems engineering support for ballistic missile defense
programs. In addition, computer software has been developed for simulations and
hardware performance evaluations. Recent broadening of the range of engineering
services include high-technology environmental cleanup, initially applied to the
aftereffects of long term storage of chemical munitions.
4
<PAGE>
SENSING, ANALYSIS AND INSTRUMENTATION SYSTEMS AND INSTRUMENTS
A diverse range of sensing, analysis and instrumentation systems and
instruments are designed, manufactured and sold to a number of customers,
including the Federal Aviation Administration, domestic and foreign airlines,
commercial aircraft OEMs, and a broad base of companies in different industrial
sectors.
Teledyne currently produces equipment for telemetering data from remote
sources, which is used by major airlines and helicopter fleets to record
in-flight performance and maintenance data on their aircraft.
Sensors, analyzers (on-line and portable), and custom-engineered systems
incorporate a broad range of principles of measurement, including
electrochemical, electrolytic diffusion, chemiluminescence, absorption
photometry, thermal conductivity, flame ionization, and catalytic oxidation.
Oxygen sensors from this line stand out due to their accuracy, sensitivity,
rugged reliability, and application versatility. Photometric detectors for
specific chemicals cover the complete spectrum of absorption analysis, from
ultraviolet to visible to infrared wave-lengths. Polarographic sensors for
carbon monoxide and hydrogen sulfide gas analysis also monitor chlorine,
fluorine, and reducing gases.
Teledyne's 3DQ Discovery ion trap mass spectrometer offers portability and
compactness along with a parts-per-trillion sensitivity for petrochemical,
industrial, pharmaceutical, biotechnical, and environmental applications.
Teledyne produces equipment which supports geophysical exploration and
analysis for oil and gas exploration surveys and the measurement of seismic
earth motion. Teledyne is a leading global manufacturer of a family of
hydrophones based on piezoelectric ceramics. For over a half century, precise
seismometers developed and manufactured by Teledyne have provided advanced
capabilities for detecting natural and man-made earth motion. The innovation
continues with smaller, more sensitive instruments and microprocessor-based,
portable systems which quickly extract and analyze seismic information.
CONTROLLED EXPLOSIVE DEVICES
Controlled explosive devices are designed, manufactured and sold for
defense-related, aerospace and commercial purposes. These devices are used in a
wide range of pilot ejection systems, airframe separation and other similar
aerospace-related systems. Commercially, the devices are used in vehicle airbags
and petroleum industry drilling systems, among other uses.
UNMANNED AERIAL VEHICLES AND TARGETS
Unmanned aerial vehicles and targets are designed, manufactured and sold for
defense-related purposes to the U. S. government and to the international
market. The Company's expertise in airframe manufacture goes back to Charles
Lindbergh's Spirit of St. Louis which was built by Ryan Airlines, Inc.,
forerunner of today's Teledyne Ryan Aeronautical. More than 25 types of remotely
piloted aircraft, usually called Unmanned Air Vehicles (UAVs), have been built
by Teledyne, in both supersonic and subsonic versions. These recoverable and
reusable vehicles are used for sophisticated military missions, such as
reconnaissance, with the pilots safely flying them from remote control centers.
Currently, the Company is developing the technically sophisticated "Global Hawk"
UAV for the U.S. Government under the Tier II+ program. Through the production
of sophisticated UAVs, Teledyne has also developed broad expertise in the use of
advanced materials, such as graphite composites, and has facilities for the
numerically controlled machining of airfoils from honey-comb materials.
Teledyne Ryan Aeronautical also builds the airframe for the U.S. Army's
Apache attack helicopter and manufactures airframe components and subassemblies
for commercial aircraft.
5
<PAGE>
SPECIALTY METALS SEGMENT
The products of this business segment derive from the practical application
of leading edge metallurgical science. Unique product characteristics relate to
the particular properties of the alloys melted and the various processing
techniques employed to add value for customers.
Operating companies in Teledyne's Specialty Metals Segment offer a number of
products including:
SUPERALLOYS AND SPECIALTY STEELS
High-purity and high-performance superalloys, and specialty steels are
refined and processed for worldwide customers in aerospace, biomedical, marine,
oil and gas, gas turbine, chemical processing, nuclear and transportation
industries. Advanced melting and refining capabilities are used by Teledyne to
produce alloys meeting ultra high purity requirements. Subsequent billet forging
and rod and bar rolling provide "long products" to meet exacting standards of
high temperature strength, corrosion resistance, and other special properties.
Teledyne high-speed steels are used for lathe bits, drills, milling cutters,
taps and dies and other cutting tools. Related alloy steels, including a
cobalt-free maraging grade, are produced for bearings, gears, special aerospace
hardware and high-strength applications.
THIN-ROLLED METALS
All types of metals processed to foil thinness over an extensive range of
widths and finishes meet the specialized needs of a diverse international
customer base. These customers use the thin-rolled metal to fabricate products
ranging from automobile components to photographic, medical, telecommunication,
aerospace, personal computer and consumer products. Of equal importance to the
dimensional precision of these products is Teledyne's ability to provide
engineered coatings of adhesives, vinyl, epoxies, polyurethanes, and acrylics.
Custom roll forming, stretch forming and tube drawing capabilities round out the
thin metal product offerings. A significant portion of these products is
distributed through a network of seven service centers, some located in foreign
countries.
REFRACTORY AND REACTIVE METALS
Teledyne is a leading U.S. producer of zirconium, a highly
corrosion-resistant metal that is transparent to neutrons. It is used for fuel
tubes and structural parts in nuclear power reactors and for corrosion-resistant
chemical industry applications. Other users of zirconium include the jewelry and
personal hygiene industries. Hafnium, derived as a by-product of zirconium, is
used for control rods in nuclear reactors due to its ability to absorb neutrons.
Niobium, also known as columbium, is used as an alloying element in the
manufacture of many steels. The higher quality grades produced by Teledyne are
used in superalloys for jet engines and special alloys for aerospace
applications such as rocket nozzles. When alloyed with titanium, niobium is
manufactured into superconducting wire for high-strength magnets used in MRI
machines for body-scanning, accelerators for high-energy physics, and fusion
energy projects for future generation of electricity.
Teledyne produces titanium alloys for medical, aerospace, chemical
processing, electronic and sporting goods applications. Tantalum, one of the
most corrosion resistant metals, is produced for medical implants, chemical
process equipment, and aerospace engine components.
TUNGSTEN PRODUCTS
Teledyne is a major producer of tungsten and tungsten carbide powders and
mill products. Wrought or ductile tungsten products are used in diverse
applications including light bulb filaments, inert gas welding electrodes,
electrical contacts and aircraft counterweights.
Teledyne produces a line of sintered tungsten carbide products, some of
which approach the hardness of diamonds. These cemented carbide products are
used as super-hard cutters in the high-
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speed machining and cutting of steel and other applications where hardness and
wear resistance are important. Technical developments related to ceramics,
coatings and other disciplines are incorporated in these products.
Molybdenum, a sister metal to tungsten, which also has a very high melting
point, is produced by Teledyne in powder form and then shaped into solid forms
through powder metallurgy techniques. It is an important alloying element for
steels and is used for plasma arc spraying of piston rings for electrodes in
glass melting and for structural parts in high temperature furnaces.
FORGINGS AND CASTINGS
Teledyne also provides forging and casting services to customers across the
industrial spectrum. In addition to supplying the transportation, construction
and other basic industries, Teledyne can forge the more difficult alloys which
are used in aerospace, medical implants and other critical applications.
Teledyne casts a variety of metals into products ranging from diesel
locomotive engine blocks and paper rolls to lightweight aluminum and magnesium
aircraft parts. Housings and parts are made for power generation equipment,
tools and automobiles.
INDUSTRIAL SEGMENT
Operating companies in Teledyne's Industrial Segment provide the following
products:
NITROGEN GAS SYSTEMS
Nitrogen gas springs and pressure systems are designed, manufactured and
sold internationally to industries that, as part of their manufacturing
processes, must form metal. These industries include automobile, appliance and
can-making. These gas systems overcome manufacturing difficulties encountered
with mechanical and air or hydraulic pressure systems.
DIES AND MOLDS
Metal stamping dies and plastic compression molds are designed and
manufactured and sold primarily for the domestic automotive and truck parts
industries.
VALVES, PUMPS AND BOOSTERS
Many different types of valves, pumps and boosters are designed,
manufactured and sold domestically and internationally to transportation,
chemical processing, pharmaceutical, and industrial customers.
TRANSPORTABLE MATERIAL HANDLERS
Teledyne designs and manufactures, through domestic and foreign operations,
a series of specialty forklifts that ride as outriggers on delivery trucks. This
saves valuable cargo space, and the product's light weight transportability
makes it especially useful for the efficient on-site movement of cargo, such as
at construction sites.
MINING AND CONSTRUCTION EQUIPMENT
Rugged, high-performance equipment such as breakers, boom systems and
scalers, are designed and manufactured for the construction, quarry and mining
industries.
MILITARY VEHICLE ENGINES AND SUSPENSION SYSTEMS
Teledyne produces air and liquid cooled, gasoline and diesel fueled engines.
The heavy-duty, turbo-charged, diesel engines approach 1,750 horsepower and are
used in tanks, mobile artillery and tank recovery vehicles.
In addition, Teledyne develops and manufactures suspension systems for
military and commercial heavy vehicles.
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CONSUMER SEGMENT
Operating companies in Teledyne's Consumer Segment manufacture a number of
specialty products including:
POOL EQUIPMENT AND HEATING SYSTEMS
The Company manufactures under the Teledyne Laars brand name a variety of
heating and water treatment systems for residential and commercial swimming
pools and spas, including MAXX-PURE-TM-, a sanitizing system for pools that uses
advanced ozone technology. The Hi-E line of swimming pool heaters is up to 97
percent efficient and produces very low environmental emissions. The Company
also produces a full line of water heating equipment that provides hot water for
commercial, residential and industrial space and water heating.
ORAL HEALTH PRODUCTS
A family of consumer and professional oral health products and devices are
designed, manufactured and sold primarily through retail merchandisers and
professional dental networks. These products include a high-speed,
electronically controlled toothbrush, other automatic toothbrush models, and
oral irrigation devices that are sold under the brand name of Teledyne Water
Pik-Registered Trademark-. Teledyne also produces apparatus and products used in
professional dental practices.
SHOWERHEADS
Also marketed under the Teledyne Water Pik brand name are pulsating shower
heads in a wide range of models. Teledyne designs and manufactures the
showerheads which sell through domestic and foreign mass merchandise and
specialty retail outlets.
RESIDENTIAL WATER FILTRATION
A family of residential water filtration devices are designed and
manufactured for domestic and foreign consumers and sold primarily through mass
merchandise and specialty retail outlets. The Instapure-TM- line includes
faucet-mounted, under-the-counter and whole house water filters for improving
the quality of water used in the home. The Pour-Thru Water Filter-TM- for home
water filtration removes chlorine, sediment, lead and pesticides from
residential water, employing a filter which is made of 100 percent natural
ingredients and is biodegradable. Teledyne's water filtration product line is
one of the few that can be adapted for most of the water delivery systems
throughout the world.
COLLAPSIBLE TUBES
Metal, laminate and plastic collapsible tubes are designed, manufactured and
sold to domestic and foreign companies that package pharmaceutical, dentifrice,
cosmetic, toiletries, food, household and industrial products.
USE OF PROCEEDS
Except as may be set forth in an applicable Prospectus Supplement
accompanying this Prospectus, the net proceeds from the sale of the Debt
Securities offered hereby will be used to refinance certain debt and for other
general corporate purposes, including investments in, and extensions of credit
to, the Company's subsidiaries. Prior to such use, the funds may be used to
reduce short-term borrowings or may be invested in short-term, high-quality
marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the periods indicated:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31,
-------------------------------------
1995 1994 1993 1992 1991
- --------- ----- ----- ----- -----
<S> <C> <C> <C> <C>
6.0 (A ) 3.1 2.3 (A )
</TABLE>
8
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For purposes of computing the ratio of earnings to fixed charges, earnings
are divided by fixed charges. For this purpose, earnings consist of net earnings
from continuing operations plus income taxes and fixed charges, excluding
capitalized interest, if any. Fixed charges consist of interest expense,
capitalized interest, if any, that portion of rent expense as is representative
of the interest factor and amortization of debt expense and discount or premium.
Excluding unusual income (charges) of ($107.6 million) in 1991, $4.7 million
in 1992, $22.4 million in 1993, ($134.3 million) in 1994 and $50.7 million in
1995, the ratio of earnings to fixed charges would have been 2.1 in 1991, 2.3 in
1992, 2.7 in 1993, 3.5 in 1994 and 5.0 in 1995. Unusual charges included charges
to resolve U.S. government contracting and exporting matters of ($19.7 million)
in 1992, ($16.6 million) in 1993 and ($136.8 million) in 1994. In addition,
unusual income (charges) included restructure charges of ($107.6 million) in
1991 and ($1.4 million) in 1993 and gains related to the sales of businesses and
the sale of an investment in Litton Industries common stock of $24.4 million in
1992, $40.4 million in 1993, $2.5 million in 1994 and $50.7 million in 1995.
(A) The deficiency of earnings to cover fixed charges was $31.8 million in 1991
and $3.7 million in 1994.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
Offered Debt Securities (as defined below) are to be issued under an
Indenture, dated as of January 30, 1996 (the "Indenture"), between the Company
and Mellon Bank, N.A., as Trustee (the "Trustee"). The statements under this
caption relating to the Debt Securities and the Indenture are summaries, do not
purport to be complete and are subject to and qualified in their entirety by
reference to all of the provisions of the Indenture, a copy of which is filed as
an exhibit to the Registration Statement, including the definitions therein of
certain terms and certain provisions which are made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended. Capitalized terms used
in the following summaries and not otherwise defined herein shall have the
meanings ascribed to them in the Indenture. Section numbers set forth below
refer to provisions of the Indenture.
GENERAL
The Debt Securities will be unsecured obligations of the Company. The
Company currently conducts a significant portion of its business through
subsidiaries. The creditors of the Company, including the Holders of Debt
Securities, may be effectively subordinated to any Debt incurred by the
subsidiaries of the Company. At December 31, 1995, Debt of the subsidiaries of
the Company, including capitalized lease obligations, was approximately $31.9
million (exclusive of indebtedness owed to the Company by any of its
subsidiaries). The Indenture does not limit the aggregate principal amount of
Debt Securities which may be issued thereunder, and provides that Debt
Securities may be issued thereunder from time to time in one or more series.
Reference is made to the Prospectus Supplement relating to the particular
Debt Securities offered thereby (the "Offered Debt Securities") for the
following terms of the Offered Debt Securities: (1) the title of the Offered
Debt Securities; (2) any limit on the aggregate principal amount of the Offered
Debt Securities; (3) the Person to whom any interest shall be payable, if other
than the registered holder on the Regular Record Date; (4) the date or dates on
which the Offered Debt Securities will mature; (5) the rate or rates (which may
be fixed or variable) at which the Offered Debt Securities will bear interest,
if any, the date or dates from which such interest will accrue, the dates on
which such interest, if any, will be payable, the regular record dates for such
interest payment dates and the manner in which interest and principal shall be
paid; (6) the place or places where principal of (and premium, if any) and
interest on Offered Debt Securities shall be payable (the "Place of Payment");
(7) if applicable, the price at which, the periods within which, and the terms
and conditions upon which the Offered Debt Securities may be
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redeemed, in whole or in part, at the option of the Company or at the option of
a Holder; (8) any mandatory or optional sinking fund or analogous provisions;
(9) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Offered Debt Securities will be issuable; (10) if other
than the currency of the United States, the currency (which may include
composite currencies) of payment of principal of (and premium, if any) and
interest on the Offered Debt Securities and the manner of determining the
equivalent thereof in the currency of the United States for purposes of
determining the outstanding amount of Securities; (11) if applicable, the terms
and conditions upon which the Company or Holders of Offered Debt Securities may
elect to make or receive payments of the principal of (and premium, if any) or
interest on the Offered Debt Securities in a currency other than that in which
the Offered Debt Securities are stated to be payable and the manner of
determining the equivalent thereof in the currency of the United States for
purposes of determining the outstanding amount of Securities; (12) any index
used to determine the amount of payments of principal of and premium, if any,
and interest on the Offered Debt Securities; (13) the portion of the principal
amount of the Offered Debt Securities, if other than the entire principal amount
thereof, payable upon acceleration of maturity thereof; (14) any additional
Events of Default with respect to the Offered Debt Securities other than those
set forth in the Indenture; (15) if applicable, a statement that the Offered
Debt Securities are not subject to the defeasance or covenant defeasance
sections of the Indenture as described below under "Defeasance"; (16) whether
the Offered Debt Securities shall be issued in whole or in part in the form of
one or more Global Securities and, in such case, the Depositary for such Global
Security or Securities; and (17) any other terms of the Offered Debt Securities
not inconsistent with the provisions of the Indenture. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities are to be issued as registered securities without
coupons in denominations of $1,000 or any integral multiple of $1,000. (Section
302) No service charge will be made for any transfer or exchange of such Offered
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 305)
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be sold at a substantial discount below their stated principal
amount. Federal income tax consequences and other considerations applicable to
any such Original Issue Discount Securities will be described in the Prospectus
Supplement relating thereto.
CERTAIN COVENANTS OF THE COMPANY
LIMITATION ON MORTGAGES
The Indenture provides that the Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Mortgage upon any
property of the Company or any Subsidiary (whether such property is now owned or
hereafter acquired) without in any case effectively providing that the Debt
Securities (together with, if the Company shall so determine, any other Debt of
or guaranteed by the Company or such Subsidiary ranking equally with the Debt
Securities then existing or thereafter created) shall be secured equally and
ratably with the obligation secured by such Mortgage, except that the foregoing
restrictions shall not apply to (a) Mortgages on property of any Person existing
at the time such Person becomes a Subsidiary; (b) Mortgages on property existing
at the time of acquisition thereof, or to secure the payment of all or any part
of the purchase price of such property, or to secure Debt incurred or guaranteed
for the purpose of financing all or any part of the purchase price of such
property or improvements or construction (including any improvements on any
existing property) thereon, which Debt is incurred or guaranteed prior to, at
the time of, or within 180 days after the later of such acquisition or
completion of such improvements or construction or commencement of full
operation of such property, provided that the Mortgage shall not apply to any
property theretofore owned by the Company or a Subsidiary other than the real
property on which such construction or improvement is located; (c) Mortgages
securing indebtedness owing by any Subsidiary to the Company or another
Subsidiary; (d) Mortgages on property of a Person existing at the time such
Person is merged into or consolidated with the Company or a Subsidiary or at the
time of a purchase, lease or other acquisition of the property of a Person as an
entirety or substantially as an entirety by the Company or a Subsidiary
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(and not incurred in anticipation of the financing of such merger or
acquisition); (e) Mortgages on property of the Company or a Subsidiary in favor
of any Person to secure partial, progress, advance or other payments pursuant to
any contract or statute or in favor of the United States of America or any State
thereof, or any department, agency, instrumentality or political subdivision
thereof, or in favor of any other country, or any political subdivision thereof,
to secure any Debt incurred or guaranteed for the purpose of financing all or
any part of the purchase price or the cost of construction of the property
subject to such Mortgages (including, but not limited to, Mortgages incurred in
connection with pollution control, industrial revenue bond or similar
financings); (f) Mortgages existing on January 30, 1996; (g) Permitted
Mortgages; and (h) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Mortgage
referred to in the foregoing clauses (a) to (g), inclusive. Notwithstanding the
above, the Company and one or more Subsidiaries may issue, assume or guarantee
secured Debt which would otherwise be subject to the foregoing restrictions,
provided that after giving effect thereto the aggregate amount of such Debt then
outstanding (not including secured Debt permitted under the foregoing
exceptions) at such time does not exceed 10% of the Consolidated Net Tangible
Assets of the Company and its consolidated Subsidiaries as of the end of the
latest fiscal year. (Section 1004)
LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS
The Indenture provides that Sale and Leaseback Transactions by the Company
or any Subsidiary of any property are prohibited unless the Company or such
Subsidiary would be entitled to issue, assume or guarantee Debt secured by the
property involved at least equal in amount to the Attributable Debt in respect
of such transaction without equally and ratably securing the Debt Securities,
provided that such Attributable Debt shall thereupon be deemed to be Debt
subject to the provisions of the preceding paragraph. (Section 1005)
LIMITATIONS ON CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that the Company may not merge into or consolidate
with any entity, or transfer, convey or lease its assets substantially as an
entirety, unless the successor entity is a corporation incorporated under the
laws of the United States of America, any State thereof or the District of
Columbia, and assumes the Company's obligations on the Indenture and the Debt
Securities, and after giving effect to such transaction there would not be an
Event of Default or event which, after notice or lapse of time or both, would
become an Event of Default under the Indenture. (Section 801)
If upon any consolidation with or merger of the Company into any other
corporation, or upon any sale, conveyance or lease of the Company's properties
substantially as an entirety, any property of the Company or of any Subsidiary
would thereupon become subject to any Mortgage, the Company or the Subsidiary,
prior to such event, will secure the Debt Securities equally and ratably with
any other obligations of the Company then entitled thereto, unless such Mortgage
is permitted under the provisions described under "Limitations on Mortgages"
above. (Section 801)
CERTAIN DEFINITIONS
"Attributable Debt" is defined under the Indenture as the present value
(discounted at the rate of interest implicit in the terms of the relevant lease)
of the obligation of a lessee for net rental payments during the remaining term
of any lease (including any period for which such lease has been extended or
may, at the option of the lessor, be extended).
"Consolidated Net Tangible Assets" is defined under the Indenture, with
respect to any Person, as the total assets appearing on the most recent
consolidated balance sheet of such Person and its Subsidiaries plus the LIFO
(last-in, first-out) inventory reserve, if any, less the following: (1) current
liabilities (excluding (a) any which are, by their terms, extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed, and (b) current
liabilities with respect to pension plans and post-retirement medical benefits
to the extent that they may be satisfied from surplus in any of such Person's or
its Subsidiaries' benefit
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plans); (2) reserves for depreciation and other asset valuation reserves; (3)
intangible assets such as goodwill, trademarks, trade names, patents, and
unamortized debt discount and expense; and (4) minority interests of other
Persons holding stock in any majority-owned Subsidiary of such Person.
"Debt" is defined under the Indenture, with respect to any Person, as
(without duplication) (a) all indebtedness for borrowed money, (b) that portion
of obligations with respect to capital leases that is properly classified as a
liability on a balance sheet in conformity with generally accepted accounting
principles, (c) notes payable and drafts accepted representing extensions of
credit whether or not representing obligations for borrowed money, (d) any
obligation owed for all or any part of the deferred purchase price of property
or services, which purchase price is (i) due more than six months from the date
of incurrence of the obligation in respect thereof or (ii) evidenced by a note
or similar written instrument, (e) every reimbursement obligation of such Person
with respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person, and (f) all indebtedness secured by any
Mortgage on any property or asset owned or held by that Person regardless of
whether the indebtedness secured thereby shall have been assumed by that Person
or is nonrecourse to the credit of that Person.
"Mortgage" is defined under the Indenture as any lien, mortgage, pledge,
assignment, security interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, and any agreement to give any security interest) and any option, trust
or other preferential arrangement having the practical effect of any of the
foregoing.
"Permitted Mortgages" is defined under the Indenture as the following types
of Mortgages:
(a) Mortgages for taxes, assessments or governmental charges or claims
if the same shall not at the time be delinquent or thereafter can be paid
without penalty or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with generally
accepted accounting principles shall have been set aside on the books of the
Company;
(b) statutory Mortgages of landlords and Mortgages of carriers,
warehousemen, mechanics, repairmen, suppliers and materialmen and other
similar Mortgages imposed by law incurred in the ordinary course of business
for sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
generally accepted accounting principles shall have been made therefor;
(c) Mortgages incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security or retirement benefits, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, trade contracts, reimbursement
obligations under letters of credit or bank guarantees serving a function
similar to letters of credit, performance and return-of-money bonds and
other similar obligations (in each case exclusive of obligations for the
payment of borrowed money);
(d) any attachment, judgment or settlement Mortgage as to which the
Company or any Subsidiary has not exhausted its appellate rights and for
which adequate reserves in accordance with generally accepted accounting
principles shall have been set aside on the books of the Company;
(e) leases or subleases granted to others not adversely affecting in any
material respect the ordinary conduct of the business of Company or any
Subsidiary;
(f) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title, surface uses, servitudes, permits
and other similar charges or encumbrances not adversely affecting in any
material respect the ordinary conduct of the business of the Company or any
Subsidiary;
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(g) any (i) interest or title of a lessor or sublessor under any lease
permitted by the Indenture, (ii) restriction or encumbrance that the
interest or title of such lessor or sublessor may be subject to, or (iii)
subordination of the interest of the lessee or sublessee under such lease to
any restriction or encumbrance referred to in the preceding clause (ii);
(h) Mortgages arising from filing Uniform Commercial Code financing
statements relating solely to leases permitted by the Indenture or any sale
of accounts receivable; and
(i) Mortgages in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, limited liability
partnership, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Sale and Leaseback Transaction" is defined under the Indenture as any
arrangement with any Person providing for the leasing by the Company or any
Subsidiary of any property of the Company or any Subsidiary, whether such
property is now owned or hereafter acquired (except for leases for a term of not
more than three years, except for leases between the Company and a Subsidiary or
between Subsidiaries and except for leases of a property or subsequent
improvement entered into within 180 days after the later of the acquisition,
completion of construction or commencement of full operation of such property or
subsequent improvement), which property or subsequent improvement has been or is
to be transferred by the Company or such Subsidiary to such Person.
Notwithstanding the foregoing, any arrangement between the Company or any
Subsidiary and the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or with any other country, or any
political subdivision thereof, which is entered into with respect to any real
property, plant or facility for the primary purpose of providing the Company or
such Subsidiary with property tax abatement, local community investment or other
similar incentives shall not be deemed a "Sale and Leaseback Transaction."
"Subsidiary" is defined under the Indenture as a Person, more than 50% of
the outstanding voting stock or other beneficial interests of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries.
(Section 101)
LIMITED COVENANTS IN THE EVENT OF A HIGHLY LEVERAGED TRANSACTION
Other than the covenants of the Company included in the Indenture as
described above, there are no covenants or provisions in the Indenture that may
afford Holders protection in the event of a highly leveraged transaction or
leveraged buyout involving the Company.
EVENTS OF DEFAULT
The following events are defined in the Indenture as "Events of Default"
with respect to Debt Securities of any series: (a) default in the payment of any
interest on any Debt Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days or more; (b) default in
the payment of principal of (or premium, if any, on) any Debt Security of that
series at its maturity; (c) default in the deposit of any sinking fund payment,
when, as and if due by the terms of a Debt Security of that series; (d) failure
to perform any other covenant of the Company in the Indenture or Debt Securities
of any series (other than a covenant included in the Indenture solely for the
benefit of a series of Debt Securities other than that series), continued for 60
days after written notice given to the Company by the Trustee or the Holders of
at least 25% in principal amount of the Debt Securities of that series
outstanding; (e) default in respect of any bonds, debentures, notes or other
similar evidences of indebtedness (including Debt Securities of any series other
than that series) of the Company or any Subsidiary under any indenture
(including the Indenture) or other instrument under which any bonds, debentures,
notes or other similar evidences of indebtedness of the Company or any
Subsidiary is issued, or which secures, guarantees or evidences, any bonds,
notes, debentures or other similar
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evidences of indebtedness for borrowed money of the Company or any Subsidiary,
and such default shall constitute a failure to pay indebtedness in an amount in
excess of $20,000,000 when due and payable (other than as a result of
acceleration) after the expiration of any applicable grace period with respect
thereto, or shall result in the acceleration of the maturity of such
indebtedness having an aggregate principal amount in excess of $20,000,000 if
such indebtedness has not been discharged or such acceleration has not been
rescinded or annulled, within 10 days after written notice given to the Company
by the Trustee or the Holders of at least 25% in principal amount of the
outstanding Debt Securities of such series; PROVIDED that the foregoing
provisions of this clause (e) do not apply to any default or defaults by one or
more Subsidiaries during any three consecutive year period where the aggregate
Consolidated Net Tangible Assets of such Subsidiaries at the time of such
defaults do not exceed 10% of the Consolidated Net Tangible Assets of the
Company, as shown on the audited consolidated financial statements of the
Company as of the end of the fiscal year preceding the date of determination;
(f) certain events of bankruptcy, insolvency or reorganization involving the
Company or its Subsidiaries; PROVIDED that this clause (f) does not apply to any
such event or events with respect to one or more Subsidiaries during any three
consecutive year period where the aggregate Consolidated Net Tangible Assets of
such Subsidiaries at the time of such events do not exceed 10% of the
Consolidated Net Tangible Assets of the Company, as shown on the audited
consolidated financial statements of the Company as of the end of the fiscal
year preceding the date of determination; and (g) any other Event of Default
provided with respect to Debt Securities of such series. (Section 501)
If an Event of Default with respect to Debt Securities of any series at the
time outstanding shall occur and be continuing, either the Trustee or the
Holders of not less than 25% in principal amount of the outstanding Debt
Securities of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
Debt Securities of that series to be due and payable immediately; provided,
however, that under certain circumstances the Holders of a majority in aggregate
principal amount of outstanding Debt Securities of that series may rescind and
annul such declaration and its consequences. (Section 502)
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to the principal amount of such Original Issue
Discount Securities due upon the occurrence of an Event of Default and the
continuation thereof.
The Indenture provides that the Trustee, within 90 days after the occurrence
of a default with respect to any series of Debt Securities, shall give to the
Holders of Debt Securities of that series notice of all uncured defaults known
to it (the term default to mean the events specified above without grace
periods), provided that, except in the case of default in the payment of
principal of (or premium, if any) or interest, if any, on any Debt Security 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 it in good faith determines that the withholding of such notice
is in the interest of the Holders of the Debt Securities of such series.
(Section 602)
The Company is required to furnish to the Trustee annually a statement by
certain officers of the Company as to such officers' knowledge of the Company's
compliance with the conditions and covenants under the Indenture and as to any
default in the performance of the covenants thereunder. (Section 704)
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series affected will have the right, subject to certain
limitations, 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, and
to waive certain defaults. (Sections 512 and 513)
The Indenture provides that in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
Indenture, and use the same degree of care and
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skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs. (Section 601) Subject to such
provisions, 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 of Debt Securities unless they shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction.
(Section 603)
AMENDMENT AND SUPPLEMENT
The Indenture may be amended or supplemented with the consent of the Holders
of a majority in principal amount of the Debt Securities at the time outstanding
of each series affected by such amendment or supplement; provided that, without
the consent of the Holders of all the Debt Securities affected thereby, no such
amendment or supplement may change the stated maturity of the principal of, or
any installment of principal of or interest on, any Debt Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount payable upon a declaration of
acceleration of the Debt Security, or adversely affect any right of repayment at
the option of the Holder, or reduce the amount or postpone the date fixed for
the payment of any sinking fund, or change the time for payment of any interest
on any Debt Securities, or make any Debt Security payable in money other than
that stated in the Debt Security, or reduce the aforesaid percentage of
principal amount of Debt Securities whose Holders must consent to an amendment,
supplement or waiver. Without the consent of any Holder of Debt Securities, the
Company may amend or supplement the Indenture to, among other things, (i)
evidence the succession of another corporation to the Company, (ii) add
covenants or additional Events of Default for the benefit of the Holders of all
or any series of Debt Securities, (iii) cure any ambiguity, correct or
supplement any provision which is inconsistent with another provision or add any
other provision which does not adversely affect the interests of the Holders of
Debt Securities in any material respect, or (iv) change or eliminate any
provision of the Indenture if such change or elimination is effective only when
there are no Debt Securities outstanding which were issued prior to such change
or elimination and entitled to the benefit of such provision. (Sections 901 and
902)
WAIVER
The Holders of a majority of the principal amount of the outstanding Debt
Securities of any series, on behalf of the Holders of all outstanding Debt
Securities of such series, may waive any past default under the Indenture with
respect to such series and the consequences thereof, except a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or in respect of certain covenants or provisions of the
Indenture which cannot be amended or modified without the consent of the Holder
of each outstanding Debt Security of such series affected. (Section 513)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more fully registered Global Securities that will be deposited
with a depositary (the "Depositary"), or with a nominee for a Depositary,
identified in the Prospectus Supplement relating to such series. In such case,
one or more Global Securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
outstanding Debt Securities of the series to be represented by such Global
Security or Securities. A Global Security may not be transferred except as a
whole by the Depositary with respect to such Global Security to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or except to the Trustee in exchange for definitive
Debt Securities under the limited circumstances provided in the Indenture.
(Section 305)
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Global Security will be
described in the Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will apply to all depositary
arrangements.
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Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of Persons that have accounts with such Depositary
("participants"). The accounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in a Global Security will be
limited to participants or Persons that may hold interests through participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depositary for such Global Security (with respect to interests of
participants) or by participants or Persons that hold through participants (with
respect to interests of Persons other than participants).
So long as the Depositary for a Global Security, or its nominees, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture, except under limited circumstances relating to consents and
directions by Holders as specified in the Indenture. Except as set forth below,
owners of beneficial interests in a Global Security will not be entitled to have
the Debt Securities represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not, except as specified in the
Indenture, be considered the owners or Holders thereof under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Global Security registered in the name of a Depositary or its
nominee will be made to such Depositary or its nominee, as the case may be, as
the registered owner of such Global Security. None of the Company, the Trustee
or any paying agent for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in such Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. The Company expects that the Depositary for any Debt Securities
represented by a Global Security, upon receipt of any payment of principal,
premium or interest, will immediately credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
names" and will be the responsibility of such participants.
The Indenture provides that if the Depositary for any Debt Securities
represented by a Global Security 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 such Debt Securities in definitive form in
exchange for such Global Security. In addition, the Company may at any time and
in its sole discretion determine not to have any of the Debt Securities of a
series represented by one or more Global Securities and, in such event, will
issue Debt Securities of such series in definitive form in exchange for all of
the Global Security or Securities representing such Debt Securities. (Section
305)
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in Debt Securities represented by
Global Securities.
DEFEASANCE
The Indenture provides that unless the Company elects otherwise with respect
to the Debt Securities of any series, the Company may at any time discharge (a
"legal defeasance") its obligations with respect to such Debt Securities (other
than certain obligations to the Trustee and the Company's obligations with
respect to the registration, transfer and exchange of such Debt Securities,
mutilated, destroyed, lost and stolen Debt Securities, the maintenance of an
office or agency in the Place of Payment and the treatment of funds held by
Paying Agents), or may be released from the restrictions
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described under "Certain Covenants of the Company" above ("covenant defeasance")
if, among other things, the Company has irrevocably deposited or caused to be
deposited with the Trustee (or other satisfactory trustee), as trust funds for
the payment of the Debt Securities, money and/or U.S. Government Obligations (as
defined below) which through the scheduled payment of principal and interest
will provide money in an amount sufficient, without reinvestment, to pay and
discharge the principal of (and premium, if any) and interest on such Debt
Securities to maturity or redemption, as the case may be, and any mandatory
sinking fund or analogous payments applicable to the Debt Securities of such
series on the due date thereof.
In addition, in the case of legal defeasance, the Company is required to
deliver to the Trustee an opinion of counsel stating that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since January 30, 1996, there has been a change in the
applicable Federal income tax law, in either case to the effect that the Holders
of such Debt Securities to be defeased will not recognize income, gain or loss
for Federal income tax purposes as a result of such legal defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such legal defeasance had not
occurred. In the case of a covenant defeasance, the Company is required to
deliver to the Trustee an opinion of counsel to the effect that the Holders of
such Debt Securities for which covenant defeasance is proposed will not
recognize income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
"U.S. Government Obligations" is defined in the Indenture as securities that
are (i) direct obligations of the United States of America or any agency or
instrumentality thereof to pay principal in a fixed amount that are not callable
at the issuer's option or (ii) direct obligations of the United States of
America or any agency or instrumentality thereof to pay interest in a fixed
amount, in each case for the payment of which the full faith and credit of the
United States of America is pledged or unconditionally guaranteed, as
applicable. (Section 1304)
THE TRUSTEE
The Trustee acts as trustee under the Indenture. The Trustee is a lender,
and from time to time the Trustee and its affiliates may be lenders, to the
Company. Frank V. Cahouet, a director of the Company, is Chairman, Chief
Executive Officer, President and a Director of the Trustee.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters, and also
may sell Debt Securities directly to other purchasers or through agents. Such
underwriters may include Goldman, Sachs & Co., or a group of underwriters
represented by firms including Goldman, Sachs & Co. Goldman, Sachs & Co. may
also act as agents.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Debt Securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act of 1933 (the "Act"). Any such underwriter
or agent will be identified, and any such compensation received from the Company
will be described, in the Prospectus Supplement.
17
<PAGE>
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of Debt Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Act.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Debt Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
the Company. The obligations of any purchaser under any such contract will be
subject to the condition that the purchase of the offered Debt Securities shall
not at the time of delivery be prohibited under the laws of the jurisdiction to
which such purchaser is subject. The underwriters and such other agents will not
have any responsibility in respect of the validity or performance of such
contracts.
The expected time of delivery of the Debt Securities in respect of which
this Prospectus is delivered is set forth in the accompanying Prospectus
Supplement.
LEGAL MATTERS
Certain legal matters with respect to the issuance of the Debt Securities
offered hereby will be passed upon for the Company by Irell & Manella, Los
Angeles, California. Certain legal matters will be passed upon for the
underwriters by O'Melveny & Myers. O'Melveny & Myers has in the past represented
the Company in various matters and may represent the Company in the future.
EXPERTS
The audited consolidated financial statements of the Company incorporated by
reference in this Prospectus, and elsewhere in the Registration Statement, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report and have been incorporated herein in reliance upon the
authority of said firm as experts in giving said report. Reference is made to
said report, which includes an explanatory paragraph with respect to the change
as discussed in Note 9 to the consolidated financial statements related to the
adoption of Statement of Financial Accounting Standards No. 106 in 1993.
18
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee.............. $ 137,932
Rating Agency Fees............................................... 135,000
Fees and Expenses of Trustee..................................... 10,000
Legal Fees and Expenses.......................................... 125,000
Blue Sky Fees and Expenses (including legal fees)................ 15,000
Accounting Fees and Expenses..................................... 20,000
Printing Expenses................................................ 16,000
Miscellaneous Expenses........................................... 5,000
---------
TOTAL........................................................ $ 463,932
---------
---------
</TABLE>
All of the above expenses except the registration fees are estimated. All of
such expenses will be borne by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. Section 145 of the Delaware General
Corporation Law generally provides that a corporation is empowered to indemnify
any person who is made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that he is or was a director, officer,
employee or agent of the Company or is or was serving, at the request of the
Company, in any of such capacities of another corporation or other enterprise,
if such director, officer, employee or agent acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 describes in
detail the right of the Company to indemnify any such person. The Certificate of
Incorporation and Bylaws of the Company provide generally for indemnification of
all such directors, officers and agents to the fullest extent permitted under
law. The Company's Certificate of Incorporation and Bylaws eliminate the
liability of directors to the fullest extent permitted under law. The Company's
directors and officers currently are covered by directors' and officers'
liability insurance.
Reference is also made to the indemnification provisions contained in the
Underwriting Agreement (a form of which is being filed as Exhibit 1.1 hereto)
with respect to undertakings to indemnify the Company, its directors, officers
and controlling persons within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), against certain liabilities, including
liabilities under the Securities Act or otherwise.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Indenture (the "Indenture") between the Company and Mellon Bank, N.A. (the
"Trustee") dated as of January 30, 1996.
5.1 Opinion of Irell & Manella as to the validity of Debt Securities to be offered.
12.1 Statement regarding computation of ratios of earnings to fixed charges.
23.1 Consent of Irell & Manella, contained in the opinion filed as Exhibit 5.1.
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney appears on the signature page hereof.
25.1 Form T-1 Statement of Eligibility and Qualification of the Trustee.
</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-1
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the 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 this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 items listed in Item 15 hereof, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
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 purposes of determining any liability under the Securities Act,
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-2
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
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 Los Angeles, State of California, on the 30th day of
January, 1996.
TELEDYNE, INC.
By: /S/ WILLIAM P. RUTLEDGE
-----------------------------------
William P. Rutledge
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of William P. Rutledge, Donald B. Rice and
Douglas J. Grant, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission and any state securities regulatory board
or commission any documents relating to the proposed issuance and registration
of the securities offered pursuant to this Registration Statement on Form S-3
under the Securities Act of 1933, including any amendment or amendments relating
thereto, with all exhibits and any and all documents required to be filed with
respect thereto with any regulatory authority, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully to all intents
and purposes as he or she might or could do if personally present, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or either
of them, or their or his substitute or substitutes, may lawfully do or cause to
be done.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons on
behalf of the Registrant in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
- ----------------------------------- ------------------------- ----------------
/S/ WILLIAM P. RUTLEDGE Chairman of the Board,
- ----------------------------------- Chief Executive Officer January 30, 1996
William P. Rutledge and Director
/S/ FRANK V. CAHOUET
- ----------------------------------- Director January 30, 1996
Frank V. Cahouet
- ----------------------------------- Director
Diane C. Creel
/S/ RONALD LABOW
- ----------------------------------- Director January 30, 1996
Ronald LaBow
II-3
<PAGE>
SIGNATURE TITLE DATE
- ----------------------------------- ------------------------- ----------------
/S/ DONALD B. RICE President, Chief
- ----------------------------------- Operating Officer and January 30, 1996
Donald B. Rice Director
/S/ GEORGE A. ROBERTS
- ----------------------------------- Director January 30, 1996
George A. Roberts
/S/ FAYEZ S. SAROFIM
- ----------------------------------- Director January 30, 1996
Fayez S. Sarofim
/S/ HENRY E. SINGLETON
- ----------------------------------- Director January 30, 1996
Henry E. Singleton
/S/ DOUGLAS J. GRANT Treasurer (Principal
- ----------------------------------- Financial Officer) January 30, 1996
Douglas J. Grant
/S/ DALE G. REID Assistant Treasurer
- ----------------------------------- (Principal Accounting January 30, 1996
Dale G. Reid Officer)
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement.
4.1 Indenture (the "Indenture") between the Company and Mellon Bank, N.A. (the "Trustee")
dated as of January 30, 1996.
5.1 Opinion of Irell & Manella as to the validity of Debt Securities to be offered.
12.1 Statement regarding computation of ratios of earnings to fixed charges.
23.1 Consent of Irell & Manella, contained in the opinion filed as Exhibit 5.1.
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney appears on the signature page hereof.
25.1 Form T-1 Statement of Eligibility and Qualification of the Trustee.
</TABLE>
<PAGE>
TELEDYNE, INC.
DEBT SECURITIES
____________________________________________________
UNDERWRITING AGREEMENT
___________, 1996
TO THE REPRESENTATIVES OF THE
SEVERAL UNDERWRITERS NAMED IN
THE RESPECTIVE PRICING AGREEMENTS
HEREINAFTER DESCRIBED.
Ladies and Gentlemen:
From time to time Teledyne, Inc., a Delaware corporation (the "Company"),
proposes to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions
as the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I
to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"), less the principal amount of
Designated Securities covered by Delayed Delivery Contracts, if any, as
provided in Section 3 hereof and as may be specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, any Designated
Securities to be covered by Delayed Delivery Contracts are herein sometimes
referred to as "Contract Securities" and the Designated Securities to be
purchased by the Underwriters (after giving effect to the deduction, if any,
for Contract Securities) are herein sometimes referred to as "Underwriters'
Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the
1
<PAGE>
initial public offering price of such Designated Securities, the purchase
price to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives
of such Underwriters and the principal amount of such Designated Securities to
be purchased by each Underwriter and whether any of such Designated Securities
shall be covered by Delayed Delivery Contracts (as defined in Section 3
hereof) and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of
the Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-....) in
respect of the Securities has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives for
each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective but
excluding Form T-1, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration
2
<PAGE>
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will 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; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has 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 which would be reasonably likely to have a
material
3
<PAGE>
adverse effect on the Company and its subsidiaries (taken as a whole);
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change
in the capital stock, accrued postretirement benefits or long-term debt
of the Company or any of its subsidiaries or any material adverse change,
or any development which would be reasonably expected to involve a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries (taken as a whole),
otherwise than as set forth or contemplated in the Prospectus; the
Company and its subsidiaries have no material contingent obligations
which are not disclosed in the Prospectus;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and corporate authority (and other
authority to the extent material to the Company and its subsidiaries) to
own its properties and conduct its business as described in the
Prospectus;
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable, and all of the issued shares of capital stock of
each consolidated subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company (other than director's qualifying
shares or other shares required by law to be held by a third party),
free and clear of all liens, encumbrances, equities or claims;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities and, in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts
(as defined in Section 3 hereof) with respect to such Contract
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
the Indenture, which will be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, at the
Time of Delivery for such Designated Securities (as defined in Section 4
hereof), the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability or judicial interpretations relating to or
affecting creditors' rights and to general equity principles (whether
considered in an action in equity or at law); and the Indenture conforms,
and the Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, each
of the Delayed Delivery Contracts, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated 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 is a party or by which the Company is
bound or to which any
4
<PAGE>
of the property or assets of the Company is subject (provided that the
foregoing representation is made only to the Company's knowledge as to
any such indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument involving less than $10 million), nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company 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 properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or
the Indenture or any Delayed Delivery Contract, except such as have been,
or will have been prior to the Time of Delivery, obtained under the Act
and the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Securities by the
Underwriters;
(i) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Debentures", insofar
as they purport to constitute a summary of the terms of the Securities,
and under the captions "Plan of Distribution" and "Underwriting", insofar
as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(j) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and, when executed and delivered by
the Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability or judicial
interpretation relating to or affecting creditors' rights and to general
equity principles (whether considered in an action in equity or at law);
and any Delayed Delivery Contracts conform to the description thereof in
the Prospectus;
(k) Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation or By-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound and which such
default would be reasonably likely to have a material adverse effect on
the Company and its subsidiaries (taken as a whole);
(l) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate be reasonably likely to have a material
adverse effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries; and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(m) Each of the Company and its subsidiaries owns, or possesses
adequate rights to use, all patents, trademarks, service marks, trade
names, trade secrets and copyrights (collectively, "Intellectual
Property") necessary for the conduct of its
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respective business as currently conducted by it; to the knowledge of the
Company, none of the activities engaged in by the Company or any of its
subsidiaries infringes or conflicts with Intellectual Property rights of
others in a manner which would be reasonably likely to have a material
adverse effect on the Company and its subsidiaries (taken as a whole);
(n) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act");
(o) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes; and
(p) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are authorized
to solicit offers to purchase Designated Securities from the Company pursuant
to delayed delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex III attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If
so specified, the Underwriters will endeavor to make such arrangements, and as
compensation therefor the Company will pay to the Representatives, for the
accounts of the Underwriters, at the Time of Delivery (as defined in Section 4
hereof), such commission, if any, as may be set forth in such Pricing
Agreement. Delayed Delivery Contracts, if any, are to be with investors of the
types described in the Prospectus and subject to other conditions therein set
forth. The Underwriters will not have any responsibility with respect to the
validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter
as set forth in Schedule I to the Pricing Agreement applicable to such
Designated Securities shall be, in each case, the principal amount of Contract
Securities which the Company has been advised by the Representatives have been
attributed to such Underwriter, provided that, if the Company has not been so
advised, the amount of Contract Securities to be so deducted shall be, in each
case, that proportion of Contract Securities which the principal amount of
Designated Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the total principal amount of the Designated Securities
(rounded as the Representatives may determine). The total principal amount of
Underwriters' Securities to be purchased by all the Underwriters pursuant to
such Pricing Agreement shall be the total principal amount of Designated
Securities set forth in Schedule I to such Pricing Agreement less the
principal amount of the Contract Securities. The Company will deliver to the
Representatives not later than 3:30 p.m., New York City time, on the third
business day preceding the Time of Delivery specified in the applicable
Pricing Agreement (or such other time and date as the
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Representatives and the Company may agree upon in writing), a written notice
setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such
Pricing Agreement, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by certified
or official bank check or checks, payable to the order of the Company in the
funds specified in such Pricing Agreement, all in the manner and at the place
and time and date specified in such Pricing Agreement or at such other place
and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for
such Securities. Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to the Representatives for
the accounts of the Underwriters a check payable to the order of the party
designated in the Pricing Agreement relating to such Securities in the amount
of any compensation payable by the Company to the Underwriters in respect of
any Delayed Delivery Contracts as provided in Section 3 hereof and the Pricing
Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to make
no further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery
for such Securities which shall be reasonably disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives
with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such 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
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
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<PAGE>
suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such 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 such
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 take any action
in a jurisdiction that would subject it to taxation;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may
from time to time reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Securities and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which mature more than one year after such Time of
Delivery and which are substantially similar to such Designated
Securities, without the prior written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
8
<PAGE>
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Delayed Delivery Contracts, any Blue Sky and
Legal Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase,
sale and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment
Surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this Section.
It is understood, however, that, except as provided in this Section, and
Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; 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 all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the matters covered in
paragraphs (i), (ii), (iv), (v), (vi), (x), (xi), (xii), (xiii) and (xiv)
of subsection (c) below as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Counsel for the Company reasonably satisfactory to the
Representatives (and which such counsel may be in-house counsel for the
Company) shall have furnished to the Representatives their written
opinion or opinions, dated the Time of
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Delivery for such Designated Securities, 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 jurisdiction
of its incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate be reasonably likely to have a material adverse effect on
the consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries; and, to the best
of such counsel's knowledge, no such proceedings are threatened by
governmental authorities or by others;
(iv) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(v)The Designated Securities have been duly authorized; the
Underwriters' Securities have been duly executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; the Contract Securities, if any, when executed,
authenticated, issued and delivered pursuant to the Indenture and
Delayed Delivery Contracts, if any, will constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture; and the Designated Securities and the Indenture
conform to the descriptions thereof in the Prospectus as amended or
supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability or judicial interpretation
relating to or affecting creditors' rights and to general equity
principles (whether considered in an action in equity or at law); and
the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, each of the Delayed Delivery
Contracts, if any, this Agreement and the Pricing Agreement with
respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated 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 material indenture, mortgage,
deed of trust,
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loan agreement or other material agreement or instrument known to
such counsel to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is
subject, nor will such actions result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute known to such counsel 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;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Securities
or the consummation by the Company of the transactions contemplated
by this Agreement or such Pricing Agreement or the Indenture or any
of such Delayed Delivery Contracts, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated Securities by
the Underwriters;
(ix) To such counsel's knowledge, neither the Company nor any
of its subsidiaries is in violation of its By-laws or Certificate of
Incorporation or is in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease
or other material instrument to which it is a party or by which it or
any of its properties may be bound;
(x)The statements set forth in the Prospectus under the captions
"Description of Debt Securities", and "Description of Debentures"
insofar as they purport to constitute a summary of the terms of the
Designated Securities, and under the captions "Plan of Distribution"
and "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(xi) In the event any of the Designated Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such
Delayed Delivery Contracts has been duly authorized, executed and
delivered by the Company and, assuming such Contract has been duly
executed and delivered by the purchaser named therein, constitutes a
valid and legally binding agreement of the Company enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability or
judicial interpretation relating to or affecting creditors' rights
and to general equity principles (whether considered in an action in
equity or at law); and any Delayed Delivery Contracts conform to the
description thereof in the Prospectus as amended or supplemented;
(xii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
(xiii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be,
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complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and they have no reason to
believe that any of such documents, when they became effective or
were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, 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, in the case of other documents
which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading; and
(xiv) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred
to in the opinion in subsection (x) of this Section 7(c), they have
no reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior
to the Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) 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, as of its
date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time
of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
or that, as of the Time of Delivery, either the Registration
Statement or the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time
of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and
they do not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required;
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(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for
such Designated Securities, the independent accountants of the Company
who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement shall have furnished to the Representatives a letter, dated the
effective date of the Registration Statement or the date of the most
recent report filed with the Commission containing financial statements
and incorporated by reference in the Registration Statement, if the date
of such report is later than such effective date, and a letter dated such
Time of Delivery, respectively, to the effect set forth in Annex II
hereto, and with respect to such letter dated such Time of Delivery, as
to such other matters as the Representatives may reasonably request and
in form and substance reasonably satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior
to the date of the Pricing Agreement relating to the Designated
Securities 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 as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended prior to the date of
the Pricing Agreement relating to the Designated Securities there shall
not have been any change in the capital stock, accrued postretirement
benefits or long-term debt of the Company or any of its subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Securities, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the terms and in the manner contemplated in
the Prospectus as first amended or supplemented relating to the
Designated Securities;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no 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 or preferred stock;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York or California State authorities;
or (iv) the
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outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Underwriters' Securities on
the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Securities; and
(h) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities
a certificate or certificates of officers of the Company satisfactory to
the Representatives as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder to
be performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (e) of this Section and as to such other
matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon 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
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim 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 or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon 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, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
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supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party, except to the extent that the indemnifying party has
been prejudiced materially by such failure. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities to
which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and such Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from such offering (before
15
<PAGE>
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters on the other and the parties'
relative intent, 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 contribution pursuant to this
subsection (d) were 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 account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include 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
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the applicable
Designated Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act or the Exchange Act;
and the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act or the Exchange Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase under the Pricing
Agreement relating to such Underwriters' Securities, the Representatives may
in their discretion arrange for themselves or another party or other parties
to purchase such Underwriters' Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
reasonably satisfactory to the Representatives to purchase such Underwriters'
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Underwriters' Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Underwriters'
Securities, the Representatives or the Company shall have the right to
postpone the Time of Delivery for such Underwriters' Securities for a period
of not more than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus as amended
or supplemented, or in any other documents or arrangements, and the Company
agrees to file
16
<PAGE>
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the reasonable opinion of the Representatives may thereby
be made necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of
Underwriters' Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Designated Securities which such Underwriter agreed
to purchase under such Pricing Agreement) of the Underwriters' Securities of
such defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Underwriters' Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Underwriters' Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all reasonable out-of-pocket expenses approved in writing
by the Representatives, including reasonable fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for
the purchase, sale and delivery of such Designated Securities, but the Company
shall then be under no further liability to any
17
<PAGE>
Underwriter with respect to such Designated Securities except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by
such Representatives jointly or by such of the Representatives, if any, as may
be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth
in the Pricing Agreement; and 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: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by the Representatives upon request. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each
of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
18
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof.
Very truly yours,
Teledyne, Inc.
By:
----------------------------
Name:
Title:
19
<PAGE>
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.,
[Names of Co-Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
333 South Grand Avenue
Los Angeles, California 90071
, 19..
Ladies and Gentlemen:
Teledyne, Inc., a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated . . . . . . . . . . . ., 1996 (the "Underwriting Agreement"), between
the Company on the one hand and Goldman, Sachs & Co. [and (names of
Co-Representatives named therein)] on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this Agreement to the
same extent as if such provisions had been set forth in full herein; and each
of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that
each representation and warranty which refers to the Prospectus in Section 2
of the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of
this Pricing Agreement. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite
the name of such Underwriter in Schedule I hereto, less the principal amount
of Designated Securities covered by Delayed Delivery Contracts, if any, as may
be specified in Schedule II.
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us [six] counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
Teledyne, Inc.
By:
-------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
[Name(s) of Co-Representative(s)]
By:
-------------------------------
(Goldman, Sachs & Co.)
Name(s) of Co-Representative(s)
By:
-------------------------------
Name:
Title:
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ----------
Goldman, Sachs & Co. $
[NAME(S) OF CO-REPRESENTATIVE(S)]
[NAMES OF OTHER UNDERWRITERS]
Total $
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued
amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from
to [and accrued amortization[, if any,] from
to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
New York Clearing House (next day) funds
TIME OF DELIVERY:
a.m. (New York City time), , 19
INDENTURE:
Indenture dated , 1996, between the Company and
, as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 19..]
REDEMPTION PROVISIONS:
1
<PAGE>
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before ,
%, and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
---- ------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$ ] principal amount of Designated Securities on
in each of the years through
at 100% of their principal amount plus accrued interest[, together
with [cumulative] [noncumulative] redemptions at the option of the Company
to retire an additional [$ ] principal amount of Designated
Securities in the years through at 100% of their
principal amount plus accrued interest.]
[IF DESIGNATED SECURITIES ARE EXTENDABLE DEBT SECURITIES, INSERT--
EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date
and years], at the option of the holder, at their principal amount with
accrued interest. The initial annual interest rate will be %, and
thereafter the annual interest rate will be adjusted on ,
and to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with -year maturities
as of the [insert date 15 days prior to maturity date] prior to such
[insert maturity date].]
[IF DESIGNATED SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average rate for
year [month][securities][certificates of deposit] issued by
2
<PAGE>
and [insert names of banks].] [and the annual interest rate
[thereafter] [from
through ] will be the interest yield equivalent of the
weekly average per annum market discount rate for -month
Treasury bills plus % of Interest Differential (the excess, if
any, of (i) the then current weekly average per annum secondary market
yield for -month certificates of deposit over (ii) the then
current interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills); [from and thereafter
the rate will be the then current interest yield equivalent plus % of
Interest Differential].]
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
DELAYED DELIVERY:
[NONE] [UNDERWRITERS' COMMISSION SHALL BE .....% OF THE PRINCIPAL AMOUNT OF
DESIGNATED SECURITIES FOR WHICH DELAYED DELIVERY CONTRACTS HAVE BEEN ENTERED
INTO. SUCH COMMISSION SHALL BE PAYABLE TO THE ORDER OF ...].
ADDITIONAL CLOSING CONDITIONS:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
3
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Act
or the Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been separately furnished to the representative or representatives of the
Underwriters (the "Representatives") (such term to include an Underwriter
or Underwriters who act without any firm being designated as its or their
representatives);
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with
the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Company's Annual
Reports on Form 10-K for such fiscal years;
1
<PAGE>
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A)(i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-
Q incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible
2
<PAGE>
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(vi) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (v) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
3
<PAGE>
ANNEX III
DELAYED DELIVERY CONTRACT
Teledyne, Inc.
c/o Goldman, Sachs & Co.,
333 South Grand Avenue
Los Angeles, California 90071
ATTENTION: ................. ..................., 19..
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Teledyne, Inc.
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$.........
principal amount of the Company's [TITLE OF DESIGNATED SECURITIES]
(hereinafter called the "Designated Securities"), offered by the Company's
Prospectus, dated .............., 19.., as amended or supplemented, receipt of
a copy of which is hereby acknowledged, at a purchase price of .....% of the
principal amount thereof, plus accrued interest from the date from which
interest accrues as set forth below, and on the further terms and conditions
set forth below.
The undersigned will purchase the Designated Securities from the Company
on .............., 19.. (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from .............., 19...
[THE UNDERSIGNED WILL PURCHASE THE DESIGNATED SECURITIES FROM THE COMPANY
ON THE DELIVERY DATE OR DATES AND IN THE PRINCIPAL AMOUNT OR AMOUNTS SET FORTH
BELOW:
PRINCIPAL DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
------------- ------ ----------------
.........., 19 $......... ............., 19..
.........., 19 $......... ............., 19..
EACH SUCH DATE ON WHICH DESIGNATED SECURITIES ARE TO BE PURCHASED HEREUNDER IS
HEREINAFTER REFERRED TO AS A "DELIVERY DATE."]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [THE] [EACH] Delivery Date shall be made to the Company or its
order by certified or official bank check in .......... Clearing House funds
at the office of .........., ........., .........., or by wire transfer to a
bank account specified by the Company, on [THE] [SUCH] Delivery Date upon
delivery to the undersigned of the Designated Securities then to be purchased
by the undersigned in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written, telex or facsimile communication addressed to the Company not less
than five full business days prior to [THE] [SUCH] Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities on [THE] [EACH] Delivery Date shall be subject to
the condition that the purchase of Designated Securities to be made by the
undersigned shall not on [THE] [SUCH] Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject. The
1
<PAGE>
obligation of the undersigned to take delivery of and make payment for
Designated Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Designated Securities pursuant to other
contracts similar to this contract.
[THE UNDERSIGNED UNDERSTANDS THAT UNDERWRITERS (THE "UNDERWRITERS") ARE
ALSO PURCHASING DESIGNATED SECURITIES FROM THE COMPANY, BUT THAT THE
OBLIGATIONS OF THE UNDERSIGNED HEREUNDER ARE NOT CONTINGENT ON SUCH
PURCHASES]. 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.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
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.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
2
<PAGE>
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole
discretion and that, without limiting the foregoing, acceptances of such
contracts 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 by the Company.
Yours very truly,
By:
(Authorized Signature)
Name:
Title:
(Address)
Accepted: , 19..
------------
Teledyne, Inc.
By:
------------------------
Name:
Title:
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<PAGE>
TELEDYNE, INC.
TO
MELLON BANK, N.A.
Trustee
___________________________
INDENTURE
Dated as of January 30, 1996
___________________________
<PAGE>
TABLE OF CONTENTS
PAGE
PARTIES ............................................................. 1
RECITALS OF THE COMPANY ............................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION...................... 1
SECTION 101. DEFINITIONS............................................ 1
Act............................................................ 2
Affiliate...................................................... 2
Attributable Debt.............................................. 2
Authenticating Agent........................................... 2
Board of Directors............................................. 2
Board Resolution............................................... 3
Business Day................................................... 3
Commission..................................................... 3
Company........................................................ 3
Company Request or Company Order............................... 3
Consolidated Net Tangible Assets............................... 3
Corporate Trust Office......................................... 4
Corporation.................................................... 4
Covenant Defeasance............................................ 4
Debt........................................................... 4
Defaulted Interest............................................. 4
Defeasance..................................................... 4
Depositary..................................................... 4
Event of Default............................................... 5
Global Security................................................ 5
Holder......................................................... 5
Indenture...................................................... 5
Interest....................................................... 5
Interest Payment Date.......................................... 5
Maturity....................................................... 5
Mortgage....................................................... 5
Officers' Certificate.......................................... 6
Opinion of Counsel............................................. 6
Original Issue Discount Security............................... 6
Outstanding.................................................... 6
Paying Agent................................................... 7
Permitted Mortgages............................................ 7
Person......................................................... 8
Place of Payment............................................... 9
Predecessor Security........................................... 9
Redemption Date................................................ 9
Redemption Price............................................... 9
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Regular Record Date............................................ 9
Responsible Officer............................................ 9
Securities..................................................... 9
Security Register and Security Registrar....................... 9
Special Record Date............................................ 10
Stated Maturity................................................ 10
Subsidiary..................................................... 10
Trustee........................................................ 10
Trust Indenture Act............................................ 10
U.S. Government Obligations.................................... 10
Vice President................................................. 10
Voting Stock................................................... 10
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS................... 10
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE................. 11
SECTION 104. ACTS OF HOLDERS........................................ 12
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.................. 13
SECTION 106. NOTICE TO HOLDERS; WAIVER.............................. 13
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT...................... 14
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS............... 14
SECTION 109. SUCCESSORS AND ASSIGNS................................. 14
SECTION 110. SEPARABILITY CLAUSE.................................... 14
SECTION 111. BENEFITS OF INDENTURE.................................. 15
SECTION 112. GOVERNING LAW.......................................... 15
SECTION 113. LEGAL HOLIDAYS......................................... 15
SECTION 114. CORPORATE OBLIGATION................................... 15
ARTICLE TWO
SECURITY FORMS.......................... 16
SECTION 201. FORMS GENERALLY........................................ 16
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION....................................... 16
SECTION 203. PROVISIONS OF GLOBAL SECURITY.......................... 17
ARTICLE THREE
THE SECURITIES.......................... 18
ii
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SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.................. 18
SECTION 302. DENOMINATIONS......................................... 21
SECTION 303. EXECUTION, AUTHENTICATION,
DELIVERY AND DATING................................. 22
SECTION 304. TEMPORARY SECURITIES.................................. 24
SECTION 305. REGISTRATION; REGISTRATION OF
TRANSFER AND EXCHANGE............................... 25
SECTION 306. MUTILATED, DESTROYED, LOST
AND STOLEN SECURITIES............................... 27
SECTION 307. PAYMENT OF INTEREST;
INTEREST RIGHTS PRESERVED........................... 28
SECTION 308. PERSONS DEEMED OWNERS................................. 29
SECTION 309. CANCELLATION.......................................... 30
SECTION 310. COMPUTATION OF INTEREST............................... 30
SECTION 311. CUSIP NUMBERS......................................... 30
ARTICLE FOUR
SATISFACTION AND DISCHARGE................... 31
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE............... 31
SECTION 402. APPLICATION OF TRUST MONEY............................ 32
ARTICLE FIVE
REMEDIES............................ 33
SECTION 501. EVENTS OF DEFAULT..................................... 33
SECTION 502. ACCELERATION OF MATURITY;
RESCISSION AND ANNULMENT............................ 35
SECTION 503. COLLECTION OF INDEBTEDNESS AND
SUITS FOR ENFORCEMENT BY TRUSTEE.................... 37
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM...................... 38
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS
WITHOUT POSSESSION OF SECURITIES.................... 39
SECTION 506. APPLICATION OF MONEY COLLECTED........................ 39
iii
<PAGE>
SECTION 507. LIMITATION ON SUITS................................... 40
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO
RECEIVE PRINCIPAL, PREMIUM AND INTEREST............. 40
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.................... 41
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE........................ 41
SECTION 511. DELAY OR OMISSION NOT WAIVER.......................... 41
SECTION 512. CONTROL BY HOLDERS.................................... 42
SECTION 513. WAIVER OF PAST DEFAULTS............................... 42
SECTION 514. UNDERTAKING FOR COSTS................................. 43
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS...................... 44
ARTICLE SIX
THE TRUSTEE........................... 44
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES................... 44
SECTION 602. NOTICE OF DEFAULTS.................................... 46
SECTION 603. CERTAIN RIGHTS OF TRUSTEE............................. 46
SECTION 604. NOT RESPONSIBLE FOR RECITALS
OR ISSUANCE OF SECURITIES........................... 47
SECTION 605. MAY HOLD SECURITIES................................... 48
SECTION 606. MONEY HELD IN TRUST................................... 48
SECTION 607. COMPENSATION AND REIMBURSEMENT........................ 48
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS............... 49
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY............... 49
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR........................................... 49
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................ 51
SECTION 612. MERGER, CONVERSION, CONSOLIDATION
OR SUCCESSION TO BUSINESS........................... 53
SECTION 613. PREFERENTIAL COLLECTION OF
CLAIMS AGAINST COMPANY.............................. 53
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<PAGE>
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT................... 58
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY........................... 60
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES
AND ADDRESSES OF HOLDERS............................ 60
SECTION 702. PRESERVATION OF INFORMATION;
COMMUNICATIONS TO HOLDERS........................... 61
SECTION 703. REPORTS BY TRUSTEE.................................... 62
SECTION 704. REPORTS BY COMPANY.................................... 64
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE........................ 66
SECTION 801. COMPANY MAY CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS............................... 66
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED..................... 67
ARTICLE NINE
SUPPLEMENTAL INDENTURES..................... 67
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF HOLDERS.................................. 67
SECTION 902. SUPPLEMENTAL INDENTURES WITH
CONSENT OF HOLDERS.................................. 68
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.................. 70
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES..................... 70
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT................... 70
SECTION 906. REFERENCE IN SECURITIES TO
SUPPLEMENTAL INDENTURES............................. 70
ARTICLE TEN
COVENANTS............................ 71
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST........ 71
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY...................... 71
SECTION 1003. MONEY FOR SECURITIES PAYMENTS
TO BE HELD IN TRUST............................... 72
SECTION 1004. RESTRICTIONS UPON MORTGAGE OF PROPERTY............... 73
SECTION 1005. RESTRICTIONS UPON SALE AND LEASEBACK TRANSACTIONS.... 75
SECTION 1006. STATEMENT BY OFFICERS AS TO DEFAULT.................. 76
SECTION 1007. WAIVER OF CERTAIN COVENANTS.......................... 76
ARTICLE ELEVEN
REDEMPTION OF SECURITIES.................... 77
SECTION 1101. APPLICABILITY OF ARTICLE............................. 77
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE................ 77
SECTION 1103. SELECTION BY TRUSTEE OF
SECURITIES TO BE REDEEMED......................... 77
SECTION 1104. NOTICE OF REDEMPTION................................. 78
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.......................... 79
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE................ 79
SECTION 1107. SECURITIES REDEEMED IN PART.......................... 80
SECTION 1108. PURCHASE OF SECURITIES............................... 80
ARTICLE TWELVE
SINKING FUNDS.......................... 80
SECTION 1201. APPLICABILITY OF ARTICLE............................. 80
SECTION 1202. SATISFACTION OF SINKING FUND
PAYMENTS WITH SECURITIES.......................... 81
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND............ 81
vi
<PAGE>
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE.................. 82
SECTION 1301. APPLICABILITY OF ARTICLE; COMPANY'S
OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE................................. 82
SECTION 1302. DEFEASANCE AND DISCHARGE............................ 82
SECTION 1303. COVENANT DEFEASANCE................................. 83
SECTION 1304. CONDITIONS TO DEFEASANCE
OR COVENANT DEFEASANCE........................... 83
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS................... 86
TESTIMONIUM ....................................................... 88
SIGNATURES ........................................................ 88
vii
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TELEDYNE, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture
Trust Indenture
Act Section Indenture Section
310(a)(1)............................. 609
(a)(2)............................. 609
(a)(3)............................. Not Applicable
(a)(4)............................. Not Applicable
(a)(5)............................. 609
(b)................................ 608
610
311(a)................................ 613(1)
(b)................................ 613(2)
703(2)
312(a)................................ 701
702(1)
(b)................................ 702(2)
(c)................................ 702(3)
313(a)................................ 703(1)
(b)................................ 703(2)
(c)................................ 703(1), 703(2)
(d)................................ 703(3)
314(a)................................ 704
(b)................................ Not Applicable
(c)(1)............................. 102
(c)(2)............................. 102
(c)(3)............................. 1304(1)
(d)................................ Not applicable
(e)................................ 102
315(a)................................ 601(1)
(b)................................ 602
(c)................................ 601(2)
(d)................................ 601(3)
(d)(1)............................. 601(1)(a)
(d)(2)............................. 601(3)(b)
(d)(3)............................. 601(3)(c)
(e)................................ 514
316(a)................................ 101
(a)(1)(A).......................... 502
512
(a)(1)(B).......................... 513
(a)(2)............................. Not Applicable
(b)................................ 508
(c)................................ Not Applicable
317(a)(1)............................. 503
(a)(2)............................. 504
(b)................................ 1003
318(a)................................ 107
_______________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
INDENTURE, dated as of January 30, 1996, from TELEDYNE, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), to MELLON BANK, N.A., a national banking
association, as Trustee.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
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(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date in question; 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 Six are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with 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.
"Attributable Debt" in respect of any lease means, at the time of
determination, the present value (discounted at the rate of interest implicit in
the terms of the relevant lease) of the obligation of the lessee for net rental
payments during the remaining term of the lease (including any period for which
such lease has been extended or may, at the option of the lessor, be extended).
"Net rental payments" under any lease for any period means the sum of the fixed
payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rent or additional rent) on account of maintenance and
repairs, insurance, taxes, assessments or similar charges, or any amounts
required to be paid by such lessee thereunder contingent upon the amount of
sales.
"Authenticating Agent" has the meaning specified in Section 614.
"Board of Directors" means either the board of directors of the
Company or any committee (which may consist of members other than directors of
the Company) duly authorized by the board of directors of the Company to act
hereunder.
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"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 (which resolution may delegate to specified officers of
the Company the power to determine the forms of series of Securities pursuant to
Sections 201 and 202 and the provisions of series of Securities pursuant to
Section 301, such determination to be evidenced by an Officers' Certificate) and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close or such other day as provided in or pursuant
to an Officers' Certificate or supplemental indenture referred to in Section
301.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this 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 at such time.
"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" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" means, with respect to any
Person, the total assets plus the LIFO (last-in, first-out) inventory reserve,
if any, of such Person and its Subsidiaries less (without duplication) the
following: (1) current liabilities (excluding (a) any which are, by their
terms, extendable or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed, and (b) current liabilities with respect to pension plans and
post-retirement medical benefits to the extent that they may be satisfied from
surplus in any of such Person's or its Subsidiaries' benefit plans); (2)
reserves for depreciation and other asset valuation reserves; (3) intangible
assets
3
<PAGE>
such as goodwill, trademarks, trade names, patents, and unamortized debt
discount and expense (it being understood that prepaid pension costs shall not
be deemed to be an intangible asset); and (4) minority interests of other
Persons holding stock in any majority-owned Subsidiary of such Person.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee located at Pittsburgh, Pennsylvania or at such other location at
which at any particular time its corporate trust business shall be administered.
"Corporation" includes corporations and, except for purposes of
Article Eight, associations, companies, limited liability companies, limited
liability partnerships and business trusts.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt", as applied to any Person, means (without duplication) (a)
all indebtedness for borrowed money, (b) that portion of obligations with
respect to capital leases that is properly classified as a liability on a
balance sheet in conformity with generally accepted accounting principles, (c)
notes payable and drafts accepted representing extensions of credit whether or
not representing obligations for borrowed money, (d) any obligation owed for all
or any part of the deferred purchase price of property or services, which
purchase price is (i) due more than six months from the date of incurrence of
the obligation in respect thereof or (ii) evidenced by a note or similar written
instrument, (e) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person, and (f) all indebtedness secured by any Mortgage on any
property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301, and if at any time there is more than one such Person, "Depositary"
4
<PAGE>
as used with respect to the Securities of any series shall mean the Depositary
with respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security in the form prescribed in Section
203 which is executed by the Company and authenticated and delivered to the
Trustee evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively, and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Mortgage" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
5
<PAGE>
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities for which 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 Securities; PROVIDED that, if such Securities
are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(c) Securities which have been defeased pursuant to Section 1302
hereof; and
(d) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
6
<PAGE>
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (ii) the principal amount of a
Security denominated in a foreign currency or currency unit shall be the U.S.
dollar equivalent, determined as of the date of original issuance of such
Security, of the principal amount of such Security (or, in the case of an
Original Issue Discount Security denominated in a foreign currency or currency
unit, the U.S. dollar equivalent, determined as of the date of original issuance
of such Security, of the amount determined as provided in (i) above), and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Mortgages" means the following types of Mortgages:
(a) Mortgages for taxes, assessments or governmental charges or
claims if the same shall not at the time be delinquent or thereafter can
be paid without penalty or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in accordance with
generally accepted accounting principles shall have been set aside on the
books of the Company;
(b) statutory Mortgages of landlords and Mortgages of carriers,
warehousemen, mechanics, repairmen, suppliers and materialmen and other
similar Mortgages imposed by law incurred in the ordinary course of
business for sums not yet delinquent or being contested in good faith, if
such reserve or other appropriate provision, if any, as shall be required
by generally accepted accounting principles shall have been made therefor;
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(c) Mortgages incurred or deposits made in the ordinary course of
business (i) in connection with workers' compensation, unemployment
insurance and other types of social security or retirement benefits, or
(ii) to secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, government contracts, trade contracts,
reimbursement obligations under letters of credit and bank guarantees
(serving a function similar to letters of credit), performance and
return-of-money bonds and other similar obligations (in each case
exclusive of obligations for the payment of borrowed money);
(d) any attachment, judgment or settlement Mortgage as to which
the Company or any Subsidiary has not exhausted its appellate rights and
for which adequate reserves in accordance with generally accepted
accounting principles shall have been set aside on the books of the
Company;
(e) leases or subleases granted to others not adversely affecting
in any material respect the ordinary conduct of the business of the
Company or any Subsidiary;
(f) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title, surface uses, servitudes,
permits and other similar charges or encumbrances not adversely affecting
in any material respect the ordinary conduct of the business of the
Company or any Subsidiary;
(g) any (i) interest or title of a lessor or sublessor under any
lease permitted by the Indenture, (ii) restriction or encumbrance that the
interest or title of such lessor or sublessor may be subject to, or (iii)
subordination of the interest of the lessee or sublessee under such lease
to any restriction or encumbrance referred to in the preceding clause
(ii);
(h) Mortgages arising from filing Uniform Commercial Code
financing statements relating solely to (i) leases permitted by the
Indenture or (ii) any sale of accounts receivable; and
(i) Mortgages in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with
the importation of goods.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, limited
liability
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partnership, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified in or as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any Vice President, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
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"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a Person, more than 50% of the outstanding Voting
Stock or other beneficial interests of which is owned, directly or indirectly,
by the Company or by one or more other Subsidiaries, or by the Company and one
or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section
1304(1).
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, or other persons performing equivalent functions, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this
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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, including any request to authenticate and
deliver Securities of any series pursuant to Section 303, 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 704(4), shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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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
Counsel, 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 or her certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel or
representations by counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(1) 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 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. Proof of execution of any such instrument or of
a writing appointing any such agent, or the holding of any Person of a Security,
shall be sufficient for any purpose of this Indenture and (subject to Section
601) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also
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constitute sufficient proof of his or her authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(3) The ownership of Securities shall be proved by the Security
Register.
(4) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office or at any
other address previously furnished in writing to the Trustee by the
Company to the attention of the Treasurer with a copy to the Secretary.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his or her address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the
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sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act or which is automatically deemed
included in this Indenture by any of the provisions of the Trust Indenture Act,
such required or automatically included provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, such provision of the Trust
Indenture Act shall be deemed to apply to this Indenture as so modified or
excluded.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities 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.
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SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of California.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities, other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section,)
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, PROVIDED
that no interest, except as provided in Section 502(1)(c), if applicable, shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 114. CORPORATE OBLIGATION.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company or the Trustee or of any predecessor or successor of the
Company or the Trustee, in its capacity as such, with respect to the Company's
obligations on the Securities or the obligations of the Company or the Trustee
under this Indenture or any certificate or other writing delivered in connection
therewith.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form
(including permanent global form) as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities. If temporary
Securities of any series are issued in global form as provided by Section 304,
the form thereof shall be established as provided in the preceding sentence. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global Security). If all of the Securities of
any series established by action taken pursuant to a Board Resolution are not to
be issued at one time, it shall not be necessary to deliver a record of such
action at the time of issuance of each Security of such series, but an
appropriate record of such action shall be delivered at or before the time of
issuance of the first Security of such series.
The definitive Securities shall be printed, lithographed or engraved
or may be produced in any other manner, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
MELLON BANK, N.A.
as Trustee
By_______________________
Authorized Signatory
SECTION 203. PROVISIONS OF GLOBAL SECURITY.
If Securities of a series are issuable in whole or in part in global
form, as specified as contemplated by Section 301(16), then, notwithstanding the
provisions of Sections 301 and 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate principal amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate principal
amount of Outstanding Securities represented thereby may from time to time be
reduced to reflect exchanges. The global form may be permanent or temporary.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the principal amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or
Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been or simultaneously is delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
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Notwithstanding the provisions of Section 307 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a permanent Global Security as
shall be specified in a written statement of the Depositary with respect to such
permanent Global Security, for purposes of obtaining any consents or directions
required to be given by the Holders pursuant to this Indenture.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, any Global Security shall provide, in
addition to the provisions established pursuant to Sections 201 and 301 and set
forth in the preceding paragraphs, that the Depositary will not sell, assign,
transfer or otherwise convey any beneficial interest in such Global Security
unless such beneficial interest is in an amount equal to an authorized
denomination for Securities of such series, and that the Depositary, by
accepting such Global Security, agrees to be bound by such provision.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to
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Section 304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, shall not have been issued and sold by the
Company and are therefore deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of
the series is payable;
(5) the rate or rates (or the formula pursuant to which such rate
or rates shall be determined) at which the Securities of the series shall
bear interest, if any, including the rate of interest applicable on
overdue payments of principal or interest, if different from the rate of
interest stated in the Security; the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and the Regular Record Date for the interest payable on
any Interest Payment Date; and the manner in which interest and principal
shall be paid;
(6) the place or places where the principal of (and premium, if
any) and interest, if any, on the Securities of the series shall be
payable;
(7) if applicable, the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency or currencies, including composite currencies, in
which payment of the principal of (and premium, if any) and interest, if
any, on the
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Securities of the series shall be payable if other than the currency of
the United States, which may be different for principal, premium, if any,
and interest, if any, and the manner of determining the equivalent
thereof in the currency of the United States for purposes of the
definition of "Outstanding" in Section 101;
(11) if the principal of (and premium, if any) or interest, if any,
on the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies other than that
in which the Securities are stated to be payable, the currency or
currencies in which payment of the principal of (and premium, if any) or
interest on Securities of such series as to which such election is made
shall be payable, and the period or periods within which, and the terms
and conditions upon which, such election may be made and the manner of
determining the equivalent thereof in the currency of the United States
for purposes of the definition of "Outstanding" in Section 101;
(12) if the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the series may be
determined with reference to an index, the manner in which such amounts
shall be determined;
(13) if other than the entire principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) any Event of Default with respect to the Securities of the
series, if not set forth herein;
(15) whether either or both of Section 1302 and Section 1303 shall
not apply to the Securities of the series;
(16) whether the Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case,
the Depositary for such Global Security or Securities, which Depositary
shall be, if then required by applicable law or regulation, a clearing
agency registered under the Securities Exchange Act of 1934, as amended;
and
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(17) any other terms of the series, including the covenants to be
applicable to Securities of such series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set forth
in the Officers' Certificate referred to above or in any such indenture
supplemental hereto. All Securities of any one series need not be issued at one
time and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series. The terms of the Securities of any series
may provide, without limitation, that the Securities shall be authenticated and
delivered by the Trustee on original issue from time to time upon telephonic
or written order of a person designated in the Officers' Certificate or
supplemental indenture (telephonic instructions to be promptly confirmed in
writing by such person) and that such persons are authorized to determine,
consistent with such Officer's Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officer's Certificate or supplemental indenture.
Except as otherwise provided with respect to any series of
definitive Securities evidenced by instruments in the names of the Holders
thereof, at the option of the Company, interest on such series of Securities
that bears interest may be paid by mailing a check, on or before the applicable
Interest Payment Date, to the address of the person entitled thereto, as such
address shall appear in the Securities Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series. If all of the Securities of
any series established by action taken pursuant to a Board Resolution are not to
be issued at one time, it shall not be necessary to deliver a record of such
action at the time of issuance of each Security of such series, but an
appropriate record of such action shall be delivered at or before the time of
issuance of the first Security of such series.
SECTION 302. DENOMINATIONS.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the Securities of
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each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION,
DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who 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 Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and make available for
delivery such Securities. If all of the Securities of any series are not to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as interest
rate, maturity date, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
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(2) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel and paid for, will be
legally valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles affecting creditors' rights generally, and except
that such counsel may advise that the enforceability of the Securities is
subject to the effect of general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law) including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law, and, if
applicable, to provisions of law which may require that a judgment for
money damages rendered by a court in the United States be expressed in
United States dollars.
If such forms or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee or if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the time of authentication upon original issuance of
the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
reproduced or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute, and
the Trustee shall authenticate and make available for delivery, in exchange
therefor a like principal amount of definitive Securities of the same series and
tenor of authorized denominations. Until so exchanged the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
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SECTION 305. REGISTRATION; REGISTRATION OF
TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of a like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his or her attorney duly authorized in writing.
No service charge to the Holder shall be made for any registration
of transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in
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connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (1) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before any selection for redemption of Securities of like tenor
and of the series of which such Security is a part and ending at the close of
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of such series to be
redeemed, or (2) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 301, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election to issue Global
Securities pursuant to Section 301 shall no longer be effective with respect to
the Securities of such series and the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
Notwithstanding any other provision in this Indenture, a Global
Security may not be transferred except as a whole by the Depositary with respect
to such Global
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Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or except to the Trustee
in exchange for definitive Securities as provided in this Indenture. Unless
otherwise provided as contemplated by Section 301 with respect to any series of
Securities evidenced in whole or in part by a Global Security, the Depositary
may not sell, assign, transfer or otherwise convey any beneficial interest in a
Global Security evidencing all or part of the Securities of such series unless
such beneficial interest is in an amount equal to an authorized denomination for
Securities of such series.
SECTION 306. MUTILATED, DESTROYED, LOST
AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (2) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by
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anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST;
INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable but is
not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest 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 Person or Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit 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 provided in this Clause. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the
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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 each Holder of Securities of such series at his or her
address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue interest, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such 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.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or
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other authorization furnished by a Depositary or impair, as between a Depositary
and holders of beneficial interests in any Global Security, the operation of
customary practices governing the exercise of the rights of the Depositary as
Holder of such Global Security.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order, except that the Trustee shall not be required to destroy any such
cancelled Securities.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the 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 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 Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities (except as to any surviving
rights of registration of conversion, transfer or exchange of Securities of such
series herein expressly provided for or in the form of Security for such
series), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, which instruments shall be reasonably requested by the Company,
when
(1) either
(a) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities 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 1003) have been
delivered to the Trustee for cancellation; or
(b) all such Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount in money or, if the Securities of
such series are not then due and payable, money or U.S. Government
Obligations sufficient to pay
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and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be; or
(c) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 301, to be applicable to the Securities of such series;
(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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, and, if money
or U.S. Government Obligations shall have been deposited with the Trustee
pursuant to subclause (b) of Clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money or U.S. Government Obligations deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities 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 or
U.S. Government Obligations has been deposited with the Trustee.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days or more; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when, as
and if due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or any Security of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of a
series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) default by the Company or any Subsidiary in respect of any
bonds, debentures, notes or other similar evidences of indebtedness for
borrowed money (other than the Security to which such event of default
relates) of the Company or any Subsidiary or under any indenture
(including this Indenture) or other instrument under which there is
issued, or which secures, guarantees or evidences, any bonds, notes,
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debentures or other similar evidences of indebtedness for borrowed money
of the Company or any Subsidiary, and such default shall constitute a
failure to pay indebtedness in an amount in excess of $20,000,000 when due
and payable (other than as a result of acceleration), after expiration of
any applicable grace period with respect thereto, or shall have resulted
in an aggregate principal amount of such indebtedness exceeding
$20,000,000 becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
indebtedness having been discharged or such acceleration having been
rescinded or annulled 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 Securities of that series, a written notice
specifying such default with respect to the other indebtedness and
requiring the Company to cause such indebtedness to be discharged or cause
such acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" hereunder; PROVIDED, HOWEVER, that the
foregoing provisions shall not apply to any default or defaults by one or
more Subsidiaries during any three consecutive year period where the
aggregate Consolidated Net Tangible Assets of such Subsidiaries at the
time of such defaults do not exceed 10% of the Consolidated Net Tangible
Assets of the Company, as shown on the audited consolidated financial
statements of the Company as of the end of the fiscal year preceding
the date of determination; or
(6) the entry of a decree or order by a court having jurisdiction
adjudging the Company or any Subsidiary as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Company or any Subsidiary under the Bankruptcy Code (Title 11, U.S. Code)
or any similar applicable United States Federal or state law, if such
decree or order shall have continued undischarged and unstayed for a
period of 60 days; or the entry of a decree or order of a court having
jurisdiction for the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of the Company or any Subsidiary or
its property, or for the winding up or liquidation of its affairs, if such
decree or order shall have continued undischarged and unstayed for a
period of 60 days; PROVIDED HOWEVER, that the foregoing provisions
shall not apply to any such event or events commenced by or against one or
more Subsidiaries during any three consecutive year period where the
aggregate Consolidated Net Tangible Assets of such Subsidiaries
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do not exceed 10% of the Consolidated Net Tangible Assets of the Company,
as shown on the audited consolidated financial statements of the Company
as of the end of the fiscal year preceding the date of determination; or
(7) the institution by the Company or any Subsidiary of
proceedings to be adjudicated a voluntary bankrupt, or the consent by the
Company or any Subsidiary to the filing of a bankruptcy proceeding against
the Company or any Subsidiary, or the filing by the Company or any
Subsidiary of a petition or answer or consent seeking reorganization under
the Bankruptcy Code (Title 11, U.S. Code) or any other similar applicable
United States Federal or state law, or the consent by the Company or any
Subsidiary to the filing of any such petition, or to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency,
or the making by the Company or any Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company or any Subsidiary in
writing of its inability to pay its debts generally as they become due;
PROVIDED HOWEVER, that the foregoing provisions shall not apply to any
such event or events commenced by or against one or more Subsidiaries
during any three consecutive year period where the aggregate Consolidated
Net Tangible Assets of such Subsidiaries do not exceed 10% of the
Consolidated Net Tangible Assets of the Company as shown on the audited
consolidated financial statements of the Company as of the end of the
fiscal year immediately preceding the date of determination; or
(8) any other Event of Default provided with respect to Securities
of that series.
SECTION 502. ACCELERATION OF MATURITY;
RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of, and all accrued but unpaid interest on, all of the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) all overdue interest on all Securities of that series,
(b) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities,
(c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or
rescission and annulment thereof, with respect to Securities of a series all or
part of which is represented by a Global Security, the Trustee shall establish a
record date for determining Holders of Outstanding Securities of such series
entitled to join in such declaration of acceleration, or rescission and
annulment, as the case may be, which record date shall be at the close of
business on the day the Trustee receives such declaration of acceleration, or
rescission and annulment, as
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the case may be. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such declaration of
acceleration, or rescission and annulment, as the case may be, whether or not
such Holders remain Holders after such record date; PROVIDED, that unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having been
obtained prior to the day which is 90 days after such record date, such
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be cancelled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new
declaration of acceleration, or rescission or annulment thereof, as the case may
be, that is identical to a declaration of acceleration, or rescission or
annulment thereof, which has been cancelled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 502.
SECTION 503. COLLECTION OF INDEBTEDNESS AND
SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days,
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when and if the same becomes due
pursuant to the terms of any Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, including any sinking fund payment or analogous
obligations (and premium, if any) and interest and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the
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reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal
(or lesser amount in the case of an Original Issue Discount Security) (and
premium, if any) and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
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(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS
WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be paid and applied as provided
in Section 506.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected,
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ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO
RECEIVE PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of
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the principal of (and premium, if any) and (subject to Section 307) interest on
such Security on the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. To the extent
permitted by applicable law, the assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
To the extent permitted by applicable law, no delay or omission of
the Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, PROVIDED that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any purported direction with respect
to Securities of a series all or part of which is represented by a Global
Security, the Trustee shall establish a record date for determining Holders of
Outstanding Securities of such series entitled to join in such direction, which
record date shall be at the close of business on the day the Trustee receives
such direction. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such direction,
whether or not such Holders remain Holders after such record date; PROVIDED,
that unless such majority in principal amount shall have been obtained prior to
the day which is 90 days after such record date, such direction shall
automatically and without further action by any Holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new direction
identical to a direction which has been cancelled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 512.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may, on behalf of the Holders of all the Securities of
such series, waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
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(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; PROVIDED, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his or her acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder or group of Holders holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
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SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(1) Except during the continuance of an Event of Default,
(a) 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;
(b) 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 provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture; and
(c) the obligations, responsibilities and liabilities of the
Trustee under this Indenture are contractual in nature and the
Trustee shall not be deemed to be acting as a fiduciary or common
law trustee.
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(2) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(3) 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
(a) this Subsection shall not be construed to limit the
effect of Subsection (1) of this Section;
(b) 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;
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
determined as provided in Section 512, relating to the time, method
and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of such
series; and
(d) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(4) 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.
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SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; PROVIDED, HOWEVER,
that, except in the case of a default in the payment of the principal of (or
premium, if any) or interest on any Security of such series or in the payment of
any sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
Board of Directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and PROVIDED, FURTHER, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically
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prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) notwithstanding anything to the contrary contained in this
Indenture, the Trustee shall not be deemed to have knowledge of any Event
of Default, other than an Event of Default specified in clauses (1), (2)
or (3) of Section 501 when Trustee acts as Paying Agent, unless and until
it shall have received written notice of a specified Event of Default from
the Company or a Holder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS
OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of
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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
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee and each of the Trustee's directors,
officers, employees, agents, successors and assigns (the "indemnities")
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the
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acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending the indemnities against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder as Trustee, Security Registrar or Paying Agent.
The provisions of this Section 607 shall survive any defeasance of
the Securities in accordance with Article Thirteen and the resignation and
removal of the Trustee in accordance with Section 610.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee shall comply with the provisions of Section 310(b) of
the Trust Indenture Act regarding conflicting interests and disqualification.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States 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 $50,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor upon the Securities or Person directly or indirectly controlling,
controlled by, or under common control with such obligor shall serve as Trustee
upon the Securities. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(1) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 611.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the
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instrument of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (ii) subject to Section
514, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(5) 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 of the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and
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that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company
or the Holders and accepted appointment in the manner required by Section
611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring
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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.
(2) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (a) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (b) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (c) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates.
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(3) 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 (1) or (2) of this Section, as the case
may be.
(4) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION
OR SUCCESSION TO BUSINESS.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
Corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF
CLAIMS AGAINST COMPANY.
(1) Subject to Subsection (2) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (3) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
Subsection (3) of this Section:
(a) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three months' period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or
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disposition of any property described in paragraph (b) of this Subsection,
or from the exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the
Company upon the date of such default; and
(b) all property received by the Trustee in respect of any claims
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property,
if disposed of, SUBJECT, HOWEVER, to the rights, if any, of the
Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(i) to retain for its own account (A) payments made on
account of any such claim by any Person (other than the Company) who
is liable thereon, (B) the proceeds of the bona fide sale of any
such claim by the Trustee to a third Person, and (C) distributions
made in cash, securities or other property in respect of claims
filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy
Act or applicable State law;
(ii) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so held
prior to the beginning of such three months' period;
(iii) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving that
at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in Subsection
(3) of this Section, would occur within three months; or
(iv) to receive payment on any claim referred to in paragraph
(ii) or (iii), against the release of any property held as security
for such claim as provided in paragraph (ii) or (iii), as the case
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may be, to the extent of the fair value of such property.
For the purposes of paragraphs (ii), (iii) and (iv), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (A) to apportion among the Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof, or
(B) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to
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the Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning
of such three months' period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three
months' period, it shall be subject to the provisions of this Subsection if and
only if the following conditions exist:
(A) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee
had continued as Trustee, occurred after the beginning of such three
months' period; and
(B) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(2) There shall be excluded from the operation of Subsection (1)
of this Section a creditor relationship arising from:
(a) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(b) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax liens or
other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making thereof is
given to the Holders at the time and in the manner provided in this
Indenture;
(c) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent,
registrar,
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custodian, paying agent, fiscal agent or depositary, or other
similar capacity;
(d) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods
or securities sold in a cash transaction, as defined in Subsection
3(c) of this Section;
(e) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(f) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
Subsection (3) of this Section.
(3) For the purposes of this Section only:
(a) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable;
(b) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special
account;
(c) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable upon
demand;
(d) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents
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evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale
of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation;
(e) the term "Company" means any obligor upon the
Securities; and
(f) the term "Federal Bankruptcy Act" means the Bankruptcy
Act or Title 11 of the United States Code.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities of one or more series remain
outstanding, the Trustee may appoint an authenticating agent or agents (each, an
"Authenticating Agent") with respect to Securities of one or more series which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series, and Securities so authenticated shall be entitled to the
benefits hereof and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made herein to
the authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition 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.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail notice of such
appointment by first class mail, postage prepaid, to each Holder of Securities
of the series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607, or the Authenticating Agent may bill the Company
directly for its services.
Pursuant to each appointment made under this Section, the Securities
of each series covered by such appointment may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
MELLON BANK, N.A.,
as Trustee
By ________________________
as Authenticating Agent
By ________________________
Authorized Officer
Notwithstanding any provision of this Section 614 to the contrary,
if at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated to furnish to the Security Registrar promptly all
information in its possession reasonably necessary to enable the Security
Registrar to maintain at all times an accurate and complete Security Register.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES
AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, either (a) not later than March 31 and
September 30 in each year in the case of Original Issue Discount
Securities of any series which by their terms do not bear interest prior
to Maturity, or (b) not more than 15 days after each Regular Record Date
in the case of Securities of any other series, a list, each in such form
as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of the preceding March 16
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or September 15 or as of such Regular Record Date, as the case may be; and
(2) 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION;
COMMUNICATIONS TO HOLDERS.
(1) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(2) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(a) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(1), or
(b) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(1), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
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preserved at the time by the Trustee in accordance with Section 702(1) 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 interest of the Holders
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.
(3) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(2), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(2).
SECTION 703. REPORTS BY TRUSTEE.
(1) Within 60 days after the first May 15 occurring subsequent to
the initial issuance of Securities hereunder and within 60 days after May
15 in each year thereafter, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security Register (and
to such Holders of Securities as have within the two years preceding such
transmissions filed their names and addresses with the Trustee for that
purpose), a brief report dated as of such May 15 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):
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(a) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(b) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the
Trust Indenture Act;
(c) 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 Securities, 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 Securities Outstanding
for which it is Trustee on the date of such report;
(d) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) 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
613(2)(b), (c), (d) or (f);
(e) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(f) any change to any release, or release and substitution,
of property subject to the Mortgage, if any, of this Indenture (and
the consideration therefor, if any) which it has not previously
reported;
(g) any additional issue of Securities which the Trustee has
not previously reported; and
(h) 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 Securities, except action in
respect of a default, notice of which has been
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or is to be withheld by the Trustee in accordance with Section 602.
(2) The Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register (and to such Holders
of Securities as have within the two years preceding such transmissions
filed their names and addresses with the Trustee for that purpose), a
brief report with respect to (a) the release, or release and substitution,
of property subject to the Mortgage, if any, of this Indenture (and the
consideration therefor, if any) unless the fair value of such property, as
set forth in the certificate or opinion required by Section 314(d)(1) of
the Trust Indenture Act, is less than 10% of the principal amount of
Securities Outstanding at the time of such release, or such release and
substitution, such report to be so transmitted within 90 days after such
time; and (b) 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 (1) 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 Securities, 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 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 Securities
Outstanding for which it is Trustee at such time, such report to be
transmitted within 90 days after such time.
(3) 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 Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when any Securities
are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations
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prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in respect
of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee and such other Persons specified in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission; and
(4) furnish to the Trustee, within 120 days after the end of each
fiscal year of the Company, a brief certificate from the principal
executive officer, principal financial officer or principal accounting
officer of the Company as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For
purposes of this paragraph, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a Corporation incorporated under the laws of the
United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, any property of the Company or any
Subsidiary would become subject to any Mortgage which would not be
permitted by this Indenture, the Company or such successor Person shall
take such steps as shall be necessary effectively to secure the Securities
equally and ratably with all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, complies with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
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SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities. The Trustee shall enter into a
supplemental indenture to evidence the succession and substitution of such
successor Person and such discharge and release of the Company.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by
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 any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in
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bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, PROVIDED that
any such addition, change or elimination (a) shall neither (i) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with respect to
such provision or (b) shall become effective only when there is no such
Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(2); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, PROVIDED such action shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH
CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; PROVIDED, HOWEVER, that no
such supplemental
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indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section
502, or adversely affect any right of repayment at the option of the
Holder of any Security, or reduce the amount of, or postpone the date
fixed for, the payment of any sinking fund or analogous obligation, or
change the coin or currency in which any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, PROVIDED, HOWEVER, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1007, or the deletion of this proviso, in accordance with the
requirements of Sections 611(2) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; PROVIDED, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO
SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture
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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 Securities of
any series so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to
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the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS
TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (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 for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
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 as provided in the Trust
Indenture Act for the benefit of the Persons entitled to such principal (and
premium, if any) or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust as
provided in the Trust Indenture Act for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities
of that 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.
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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 Paying Agent shall also be entitled to the benefits and
protections afforded the Trustee under Article Six.
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 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 on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. RESTRICTIONS UPON MORTGAGE OF PROPERTY.
(1) The Company will not, nor will it permit any Subsidiary to,
create, incur, assume or permit to exist any Mortgage upon any property of the
Company or any Subsidiary (whether such property is now owned or hereafter
acquired), without in any such case effectively providing, concurrently with the
creation, incurrence, assumption or permission of such Mortgage, that the
Securities (together with, if the Company shall so determine, any other
indebtedness of or guaranteed by the Company or such Subsidiary ranking equally
with the Securities then existing or thereafter created) shall be secured
equally and ratably with the obligation secured by such Mortgage; PROVIDED,
HOWEVER, that the foregoing restrictions shall not apply to:
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(a) Mortgages on property of any Person existing at the time
such Person becomes a Subsidiary;
(b) Mortgages on property existing at the time of
acquisition of such property by the Company or a Subsidiary, or Mortgages
to secure the payment of all or any part of the purchase price of such
property upon the acquisition of such property by the Company or a
Subsidiary or to secure any Debt incurred or guaranteed by the Company or
a Subsidiary prior to, at the time of, or within 180 days after the later
of the acquisition, completion of construction (including any improvements
on an existing property) or commencement of full operation of such
property, which Debt is incurred or guaranteed for the purpose of
financing all or any part of the purchase price thereof or construction or
improvements thereon; PROVIDED, HOWEVER, that in the case of any such
acquisition, construction or improvement, the Mortgage shall not apply to
any property theretofore owned by the Company or a Subsidiary, other than,
in the case of any such construction or improvement, any real property on
which the property so constructed, or the improvement, is located;
(c) Mortgages securing Debt of a Subsidiary owing to the
Company or to another Subsidiary;
(d) Mortgages on property of a Person existing at the time
such Person is merged into or consolidated with the Company or a
Subsidiary or at the time of a purchase, lease or other acquisition of the
property of a Person as an entirety or substantially as an entirety by the
Company or a Subsidiary (and not incurred in anticipation of the financing
of such merger or acquisition);
(e) Mortgages on property of the Company or a Subsidiary in
favor of any Person to secure partial, progress, advance or other payments
pursuant to any contract or statute or in favor of the United States of
America or any State thereof, or any department, agency or instrumentality
or political subdivision of the United States of America or any State
thereof, or in favor of any other country, or any political subdivision
thereof, to secure any indebtedness incurred or guaranteed for the purpose
of financing all or any part of the purchase price or the cost of
construction of the property subject to such Mortgages (including, but not
limited to, Mortgages incurred in connection with pollution control,
industrial revenue bond or similar financings);
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(f) Mortgages on property existing on January 30, 1996;
(g) Permitted Mortgages; and
(h) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Mortgage
referred to in the foregoing clauses (a) to (g), inclusive; PROVIDED,
HOWEVER, that the principal amount of the obligation secured thereby
shall not exceed the principal amount of the obligation so secured at the
time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or part of the property
which secured the Mortgage so extended, renewed or replaced (plus
improvements and construction on such property).
(2) Notwithstanding the foregoing provisions of this Section 1004,
the Company and any one or more Subsidiaries may issue, assume or guarantee Debt
secured by Mortgages which would otherwise be subject to the foregoing
restrictions in an aggregate amount which, together with all other Debt of the
Company and its Subsidiaries which (if originally issued, assumed or guaranteed
at such time) would otherwise be subject to the foregoing restrictions (not
including Debt permitted to be secured under clauses (a) through (g) above),
does not at the time exceed 10% of the Consolidated Net Tangible Assets of the
Company and its consolidated Subsidiaries, as shown on the audited consolidated
financial statements of the Company as of the end of the fiscal year preceding
the date of determination.
SECTION 1005. RESTRICTIONS UPON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, nor will it permit any Subsidiary to, enter
into any arrangement with any Person providing for the leasing by the Company or
any Subsidiary of any property of the Company or any Subsidiary, whether such
property is now owned or hereafter acquired (except for leases for a term of not
more than three years, except for leases between the Company and a Subsidiary or
between Subsidiaries and except for leases of a property or subsequent
improvement entered into within 180 days after the later of the acquisition,
completion of construction or commencement of full operation of such property or
subsequent improvement), which property has been or is to be transferred by the
Company or such Subsidiary to such Person (herein referred to as a "Sale and
Leaseback Transaction"), unless the Company or such Subsidiary would be
entitled, pursuant to the provisions of Section 1004, to issue, assume or
guarantee Debt secured by a Mortgage upon such property
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at least equal in amount to the Attributable Debt in respect of such Sale and
Leaseback Transaction without equally and ratably securing the Securities;
PROVIDED, HOWEVER, that from and after the date on which such Sale and
Leaseback Transaction becomes effective, the Attributable Debt in respect of
such Sale and Leaseback Transaction shall be deemed for all purposes under
Sections 1004 and 1005 to be Debt subject to the provisions of Section 1004.
Notwithstanding the foregoing, any arrangement between the Company
or any Subsidiary and the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or with any other country, or any
political subdivision thereof, of the type identified in the definition of "Sale
and Leaseback Transaction" and which is entered into with respect to any real
property, plant or facility for the primary purpose of providing the Company or
such Subsidiary with property tax abatement, local community investment or other
similar incentives shall not be deemed to be a "Sale and Leaseback Transaction".
SECTION 1006. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, an Officers' Certificate, stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of Sections 1001 to 1005, inclusive, and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
SECTION 1007. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1005, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of a majority in principal amount of the Outstanding 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 so expressly 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.
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The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive compliance with any
term, provision or condition referred to in the immediately preceding paragraph.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive compliance
with any such term, provision or condition, whether or not such Holders remain
Holders after such record date; PROVIDED, that unless such requisite
percentage in principal amount shall have been obtained prior to the date which
is 90 days after such record date, any such waiver previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the tenor, if applicable, of the Securities to be redeemed,
and of the principal amount of Securities of such series to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF
SECURITIES TO BE REDEEMED.
If fewer than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be
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redeemed shall be selected not more than 45 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series subject to such
redemption and 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
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. If fewer than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 45 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his or her address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) the CUSIP numbers, if any, of the Securities to be redeemed,
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(5) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security or portion thereof to be redeemed
and, if applicable, that interest thereon will cease to accrue on and
after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest through the Redemption
Date on, all the Securities which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities
or portion thereof so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; PROVIDED, HOWEVER, that,
unless otherwise specified as contemplated by Section 301 for Securities of any
series, installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any 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
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the Redemption Date at the rate prescribed therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his or her attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Security without service charge, a new Security or Securities
of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered. If
a Global Security is so surrendered, such new Security so issued shall be a new
Global Security.
SECTION 1108. PURCHASE OF SECURITIES.
Unless otherwise specified as contemplated by Section 301, the
Company and any Subsidiary of the Company may at any time and from time to time
purchase or otherwise acquire Securities in the open market or by private
agreement. Such acquisition shall not operate as or be deemed for any purpose
to be a redemption of the indebtedness represented by such Securities. Any
Securities purchased or acquired by the Company or any of its Subsidiaries may
be delivered to the Trustee and, upon such delivery, the indebtedness
represented thereby shall be deemed to be satisfied. Section 309 shall apply to
all Securities so delivered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided
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for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of the Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND
PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; PROVIDED that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days and not more than 45 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. APPLICABILITY OF ARTICLE; COMPANY'S
OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
Unless otherwise provided pursuant to Section 301, this Article
Thirteen shall be applicable to the Securities of each series, and the Company
may at its option by Board Resolution, at any time, with respect to the
Securities of such series, elect to have either Section 1302 (if applicable) or
Section 1303 (if applicable) be applied to the Outstanding Securities of such
series upon compliance with the conditions set forth below in this Article
Thirteen.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on and
after the date the conditions precedent set forth below are satisfied but
subject to satisfaction of the conditions subsequent set forth below
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Outstanding Securities of such series
to receive, solely from the trust fund described in Section 1304 and as more
fully set forth in such Section, payments of the principal of (and premium, if
any) and interest on such Securities when such payments are due, (2) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003 and such obligations as shall be ancillary thereto, (3) the
rights, powers, trusts, duties, immunities and other provisions in respect of
the Trustee hereunder, and (4) this Article Thirteen. Subject to compliance
with this Article Thirteen, the Company may exercise its option under this
Section 1302 notwithstanding the prior exercise of its option under Section 1303
with respect to the Securities of such series. Following a defeasance, payment
of the Securities of such series may not be accelerated because of an Event of
Default.
82
<PAGE>
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be released from its obligations under Sections 1004
through 1006 (and any other Sections applicable to such Securities that are
determined pursuant to Section 301 to be subject to this provision) and the
occurrence of an Event of Default specified in Section 501(4) (insofar as it is
with respect to Sections 1004 through 1006 or any other Section applicable to
such Securities that are determined pursuant to Section 301 to be subject to
this provision) shall be deemed not to be an Event of Default with respect to
the Outstanding Securities of such series on and after the date the conditions
precedent set forth below are satisfied but subject to satisfaction of the
conditions subsequent set forth below (hereinafter, "covenant defeasance"). For
this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Following a covenant defeasance, payment of the Securities of such series may
not be accelerated because of an Event of Default specified in Section 501(4) or
by reference to such other Section specified above in this Section 1303.
SECTION 1304. CONDITIONS TO DEFEASANCE
OR COVENANT DEFEASANCE.
The following shall be the conditions precedent or, as specifically
noted below, subsequent to application of either Section 1302 or Section 1303 to
the Outstanding Securities of such series:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities,
(a) money in an amount, or (b) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money
83
<PAGE>
in an amount, or (c) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and interest on the Outstanding
Securities of such series to maturity or redemption, as the case may be,
and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the due dates
thereof. Before such a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future
date or dates in accordance with Article Eleven, which shall be given
effect in applying the foregoing. For this purpose, "U.S. Government
Obligations" means direct obligations of the United States of America or
any agency or instrumentality thereof to pay principal in a fixed amount
that are not callable at the issuer's option or direct obligations of the
United States of America or any agency or instrumentality thereof to pay
interest in a fixed amount, in each case for the payment of which the full
faith and credit of the United States of America is pledged or
unconditionally guaranteed, as applicable.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (a) on the
date of such deposit or (b) insofar as subsections 501(6) and (7) are
concerned, at any time during the period ending on the 123rd day after the
date of such deposit or, if longer, ending on the day following the
expiration of the longest preference period applicable to the Company in
respect of such deposit (it being understood that the condition in this
clause (b) is a condition subsequent and shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (a) cause the
Trustee for the Securities of such series to have a conflicting interest
as defined in Section 608 or for purposes of the Trust Indenture Act with
respect to any securities of the Company or (b) result in the trust
arising from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940, as
amended.
84
<PAGE>
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as amended,
to be delisted.
(6) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (a)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (b) since January 30, 1996, there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(7) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(8) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1302 or the covenant defeasance under Section 1303 (as the case may be)
have been complied with.
85
<PAGE>
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1304 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Anything herein to the contrary notwithstanding, if and to the
extent the deposited money or U.S. Government Obligations (or the proceeds
thereof) either (1) cannot be applied by the Trustee in accordance with this
Section because of a court order or (2) are for any reason insufficient in
amount, then the Company's obligations to pay principal of (and premium, if any)
and interest on the Securities of such series shall be reinstated to the extent
necessary to cover the deficiency on any due date for payment. In any case
specified in clause (1), the Company's interest in the deposited money and U.S.
Government Obligations (and proceeds thereof) shall be reinstated to the extent
the Company's payment obligations are reinstated.
86
<PAGE>
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
87
<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.
TELEDYNE, INC.
By /s/ Douglas J. Grant
--------------------------------
Douglas J. Grant
Attest:
/s/ L. Michael Russell
MELLON BANK, N.A.
as Trustee
By /s/ E. D. Renn
--------------------------------
Assistant Vice President
Attest:
/s/ K. S. Zombeck
- ----------------------------------
Authorized Officer
88
<PAGE>
EXHIBIT 5.1
[LETTERHEAD]
January 31, 1996
Teledyne, Inc.
2049 Century Park East
Los Angeles, California 90067
Re: Debt Securities of Teledyne, Inc.
---------------------------------
Ladies and Gentlemen:
We have acted as counsel to Teledyne, Inc., a Delaware corporation (the
"Company"), in connection with the Company's Registration Statement on Form S-3
(the "Registration Statement") filed with the Securities and Exchange Commission
with respect to the registration under the Securities Act of 1933, as amended
(the "Act"), of $400,000,000 aggregate initial offering price of one or more
series of the Company's debt securities (the "Debt Securities"), which may be
issued from time to time pursuant to Rule 415 under the Act. The Debt
Securities will be issued pursuant to an Indenture (the "Indenture") between the
Company and Mellon Bank, N.A., as trustee ("the "Trustee"), and will be subject
to specific terms pertaining to each respective series of Debt Securities as
determined at the time of sale and as set forth either in a supplemental
indenture or a Board Resolution (as defined in the Indenture) in accordance with
the terms of the Indenture (the "Amendment Procedures").
As such counsel, we have examined the Registration Statement and a form of
the Indenture and have made such other factual and legal investigations as we
deemed necessary or appropriate in order to render this opinion. Further, we
are familiar with additional corporate procedures that the Company contemplates
taking prior to the issuance of any series of Debt Securities, including the
Amendment Procedures.
Based upon such examinations and investigations and subject to such
additional corporate procedures (including the Amendment Procedures) being taken
as now contemplated by the
<PAGE>
TELEDYNE, INC.
JANUARY 31, 1996
PAGE 2
Company prior to the issuance of any series of Debt Securities, it is our
opinion that, upon the issuance and sale of the Debt Securities against payment
therefor, and assuming the due authorization and execution of the Debt
Securities by the Company and the authentication thereof by the Trustee in
accordance with the terms of the Indenture, the Debt Securities will be legally
issued and will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to the
binding and enforceable nature of such obligations, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
This opinion is rendered to the Company solely for your benefit to satisfy
the requirement of the Securities and Exchange Commission set forth in Item
601(a) and Item 601(b)(5)(i) of Regulation S-K. This opinion may not be used or
relied upon by any other person and may not be disclosed, quoted, filed with a
governmental agency or otherwise referred to without our prior written consent.
However, we hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus constituting part of the Registration Statement.
Sincerely,
/s/ Irell & Manella
Irell & Manella
AGS/ag
<PAGE>
EXHIBIT 12.1
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In Millions)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------
1995 1994 1993 1992 1991
-------------------------------------------------
<S> <C> <C> <C> <C> <C>
Pre-tax income (loss) $250.2 $(3.7) $113.3 $87.0 $(31.8)
Loss recognized on less than fifty-percent
owned persons 0.4 - - - -
-------------------------------------------------
Pre-tax income (loss) as adjusted 250.6 (3.7) 113.3 57.0 (31.8)
Fixed charges:
Interest expense 39.3 40.4 41.9 51.4 56.3
Portion of rents deemed to be interest 7.6 8.9 9.0 9.3 10.0
Amortization of debt expense 3.0 3.1 3.2 4.8 5.7
Capitalized interest - - - - -
-------------------------------------------------
Total fixed charges 49.9 52.4 54.1 65.5 72.0
-------------------------------------------------
Earnings
before income taxes, minority interest
and fixed charges. $300.5 $48.7 $167.4 $152.5 $40.2
-------------------------------------------------
-------------------------------------------------
Ratio of earnings to fixed charges 6.0 (A) 3.1 2.3 (A)
-------------------------------------------------
-------------------------------------------------
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
are divided by fixed charges.
For this purpose, earnings consist of net earnings from continuing
operations plus income taxes and fixed charges, excluding capitalized
interest, if any.
Fixed charges consist of interest expense, capitalized interest, if any,
that portion of rent expense as is representative of the interest factor
and amortization of debt expense and discount or premium.
(A) The deficiency of earnings to cover fixed charges was $31.8 million in
1991 and $3.7 million in 1994.
(B) Excluding unusual income (charges) of ($107.6 million) in 1991, $4.7
million in 1992, $22.4 million in 1993, ($134.3 million) in 1994 and
$50.7 million in 1995, the ratio of earnings to fixed charges would
have been 2.1 in 1991, 2.3 in 1992, 2.7 in 1993, 3.5 in 1994 and 5.0
in 1995. Unusual charges included charges to resolve U.S. government
contracting and exporting matters of ($19.7 million) in 1992, ($16.6
million) in 1993 and ($136.8 million) in 1994. In addition, unusual
income (charges) included restructure charges of ($107.6 million) in
1991 and ($1.4 million) in 1993 and gains related to the sales of
businesses and the sale of an investment in Litton Industries common
stock of $24.4 million in 1992, $40.4 million in 1993., $2.6 million
in 1994 and $50.7 million in 1995.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants , we hereby consent to the incorporation by
reference in this registration statement of our report dated January 13, 1996,
incorporated by reference in Teledyne, Inc.'s Form 10-K for the year ended
December 31, 1995 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSON, LLP
Los Angeles, California
January 31, 1996
<PAGE>
[CONFORMED COPY]
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) / /
MELLON BANK, N.A.
(Name of Trustee)
25-0659306 U.S.
(I.R.S. Employer Identification No.) (Jurisdiction of incorporation)
One Mellon Bank Center
Pittsburgh, PA 15258-0001
(Address of Principal Executive Office)
PETER J. GERMANOWSKI
Vice President
MELLON BANK, N.A.
ONE MELLON BANK CENTER
PITTSBURGH, PENNSYLVANIA 15258-0001
(412) 234-2472
(Name, Address and Telephone Number of Agent for Service)
_______________________
TELEDYNE, INC.
(Name of Obligor)
CALIFORNIA
(State or Other Jurisdiction of Incorporation or Organization)
95-2282626
(I.R.S. Employer Identification No.)
2049 CENTURY PARK EAST, LOS ANGELES, CALIFORNIA 90067
(Address of Principal Executive Offices)
DEBT SECURITIES
(Title of Indenture Securities)
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE --
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of Cleveland Cleveland, Ohio
Federal Deposit Insurance Corporation Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEMS 3-15 ARE NOT APPLICABLE SINCE THE OBLIGOR IS NOT IN DEFAULT ON
SECURITIES ISSUED UNDER INDENTURES UNDER WHICH THE APPLICANT IS TRUSTEE.
16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
Exhibit 1 - Copy of articles of association of the
trustee as now in effect, filed as Exhibit 1 to
trustee's statement of eligibility and qualification,
Registration No. 33-46990, and incorporated herein by
reference.
Exhibit 2 - Copy of certificate of the authority of
the trustee to commence business, copy of certificate of
consolidation with the Union Trust Company of Pittsburgh
and copy of certificate approving merger of Mellon
National Bank and Trust Company into Mellon Bank, N.A.
filed as Exhibit T1A(b) to trustee's statement of
eligibility and qualification, Registration No. 33-
13020, and incorporated herein by reference.
Exhibit 3 - Copy of certificate as to authority of
the trustee to exercise corporate trust powers, filed as
Exhibit T1A(c) to trustee's statement of eligibility and
qualification, Registration No. 33-13020, and
incorporated herein by reference.
Exhibit 4 - Copy of existing by-laws of the trustee,
filed as Exhibit 4 to trustee's statement of eligibility
and qualification, Registration No. 33-46990, and
incorporated herein by reference.
Exhibit 5 - Copy of each indenture referred to in
Item 4, if the obligor is in default. Not Applicable.
Exhibit 6 - Consent of the trustee required by
Section 321(b) of the Act, filed as Exhibit T1D to
trustee's statement of eligibility and qualification,
Registration No. 33-13020, and incorporated herein by
reference.
Exhibit 7 - Copy of the latest report of condition of
the trustee transmitted electronically pursuant to law
or the requirements of its supervising or examining
authority.
1
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE
TRUSTEE, MELLON BANK, 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 PITTSBURGH, AND COMMONWEALTH OF
PENNSYLVANIA, ON THE 30TH DAY OF JANUARY, 1996.
MELLON BANK, N.A.
TRUSTEE
By: Peter J. Germanowski
-------------------------
Peter J. Germanowski
Vice President
2
<PAGE>
EXHIBIT 7
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF
MELLON BANK, N.A.
FOR SEPTEMBER 30, 1995
IN THE COMMONWEALTH OF PENNSYLVANIA, AT THE CLOSE OF BUSINESS ON
SEPTEMBER 30, 1995; TRANSMITTED ELECTRONICALLY IN RESPONSE TO CALL MADE BY
COMPTROLLER OF THE CURRENCY, UNDER TITLE 12, UNITED STATES CODE, SECTION 161.
CHARTER NO. 6301 NORTHEASTERN DISTRICT
<TABLE>
<CAPTION>
STATEMENT OF RESOURCES AND LIABILITIES
(in thousands)
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.......................................... $ 2,344,825
Interest-bearing balances................................................................... 1,316,765
Securities:
Held-to-maturity securities................................................................. 2,987,033
Available-for-sale securities............................................................... 2,214,934
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.......................................................................... 659,394
Loans and lease financing receivables:
Loans and leases, net of unearned income $ 23,320,570
LESS: Allowance for loan and lease losses 370,631
Loans and leases, net of unearned income, allowance, and reserve............................. 22,949,939
Assets held in trading accounts................................................................ 494,269
Premises and fixed assets (including capitalized leases)....................................... 461,270
Other real estate owned 65,309
Customers' liability to this bank on acceptances outstanding................................... 243,233
Intangible assets.............................................................................. 1,043,614
Other assets................................................................................... 1,300,202
TOTAL ASSETS............................................................. 36,080,787
LIABILITIES
Deposits:
In domestic offices.......................................................................... 20,373,634
Noninterest-bearing........................................................................ 5,840,842
Interest-bearing............................................................ 14,532,792
In foreign offices, Edge and Agreement subsidiaries, and IBFs................................ 5,503,623
Noninterest-bearing........................................................ 14,238
Interest-bearing............................................................ 5,489,385
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...................................................................... 2,074,873
Securities sold under agreements to repurchase............................................... 282,043
Demand notes issued to the U.S. Treasury....................................................... 446,667
Trading liabilities............................................................................ 436,119
Other borrowed money:
With original maturity of one year or less................................................... 2,262,992
With original maturity of more than one year................................................. 163,040
Mortgage indebtedness and obligations under capitalized leases................................. 2,875
Bank's liability on acceptances executed and outstanding....................................... 243,233
Subordinated notes and debentures.............................................................. 398,143
Other liabilities.............................................................................. 693,477
TOTAL LIABILITIES..................................................... 32,880,719
EQUITY CAPITAL
Common stock................................................................................... 167,285
Surplus (exclude all surplus related to preferred stock)....................................... 1,030,737
Undivided profits and capital reserves......................................................... 2,027,876
Net unrealized holding gains (losses) on available-for-sale securities......................... (19,918)
Cumulative foreign currency translation adjustments............................................ (5,912)
TOTAL EQUITY CAPITAL.................................................. 3,200,068
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL... 36,080,787
</TABLE>
3
<PAGE>
I, Michael K. Hughey, Senior Vice President and Corporate 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.
Michael K. Hughey
November 8, 1995
We, the undersigned directors, attest to the correctness of this
Statement of Resources and Liabilities. 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.
FRANK V. CAHOUET
W. KEITH SMITH
CHARLES A. CORRY
