CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING
CUMULATIVE PREFERRED STOCK
($1.25 PAR VALUE)
of
Harsco Corporation
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Jeffrey J. Burdge, Chairman of the Board, and
Paul C. Coppock, Assistant Secretary, of Harsco
Corporation, a corporation organized and existing
under the General Corporation Law of the State of
Delaware, in accordance with the provisions of Section
103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the
Board of Directors by the Restated Certificate of
Incorporation of the said Corporation, the said Board
of Directors on September 29, 1987, adopted the
following resolution creating a series of 400,000
shares of Cumulative Preferred Stock designated as
Series A Junior Participating Cumulative Preferred
Stock:
RESOLVED, that pursuant to the authority vested
in the Board of Directors of this Corporation in
accordance with the provisions of its Restated
Certificate of Incorporation, a series of Cumulative
Preferred Stock of the Corporation be and it hereby is
created, and that the designation and amount thereof
and the voting powers, preferences and relative,
participating, optional and other special rights of
the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares
of such series shall be designated as "Series A Junior
Participating Cumulative Preferred Stock" and the
number of shares constituting such series shall be
400,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of
the holders of any shares of any series of Preferred
Stock ranking prior and superior to the shares of
Series A Junior Participating Cumulative Preferred
Stock with respect to dividends or distributions, the
holders of shares of Series A Junior Participating
Cumulative Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the
fifteenth day of February, May, August and November in
each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of
Series A Junior Participating Cumulative Preferred
Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $5.00 or (b) subject
to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or
other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common
Stock, par value $1.25 per share, of the Corporation
(the "Common Stock") since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of
Series A Junior Participating Cumulative Preferred
Stock. In the event the Corporation shall at any time
after September 29, 1987 (the "Rights Declaration
Date") (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a small number of
shares, then in each such case the amount to which
holders of shares of Series A Junior Participating
Cumulative Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after
such event and the denominator of which is the number
of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating
Cumulative Preferred Stock as provided in paragraph
(A) above immediately after it declares a dividend or
distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall
have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a
dividend of $5.00 per share on the Series A Junior
Participating Cumulative Preferred Stock shall
nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Junior
Participating Cumulative Preferred Stock from the
Quarterly Dividend Payment Date next preceding the
date of issue of such shares of Series A Junior
Participating Cumulative Preferred Stock, unless the
date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for
determination of holders of shares of Series A Junior
Participating Cumulative Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Junior Participating
Cumulative Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on
a share-by-share basis among all such shares at the
time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares
of Series A Junior Participating Cumulative Preferred
Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall
be no more than 45 days prior to the date fixed for
the payment thereof.
Section 3. Voting Rights. In addition to the
voting rights set forth in Article FOURTH of the
Restated Certificate of Incorporation or otherwise
required by law, the holders of shares of Series A
Junior Participating Cumulative Preferred Stock shall
have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Cumulative Preferred Stock shall entitle
the holder thereof to 100 votes on all matters
submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the
number of votes per share to which holders of shares
of Series A Junior Participating Cumulative Preferred
Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a
fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after
such event and the denominator of which is the number
of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by
law, the holders of shares of Series A Junior
Participating Cumulative Preferred Stock and the
holders of shares of Common Stock shall vote together
as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If at any time dividends on any Series
A Junior Participating Cumulative Preferred Stock
shall be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence of
such contingency shall mark the beginning of a
period (herein called a "default period") which
shall extend until such time when all accrued and
unpaid dividends for all previous quarterly
dividend periods and for the current quarterly
dividend period on all shares of Series A Junior
Participating Cumulative Preferred Stock then
outstanding shall have been declared and paid or
set apart for payment. During each default
period, all holders of Cumulative Preferred Stock
(including holders of the Series A Junior
Participating Cumulative Preferred Stock) with
dividends in arrears in an amount equal to six
(6) quarterly dividends thereon, voting as a
class, irrespective of series, shall have the
right to elect two (2) Directors.
(ii) During any default period, such voting
right of the holders of Series A Junior
Participating Cumulative Preferred Stock may be
exercised initially at a special meeting called
pursuant to subparagraph (iii) of this Section
3(C) or at any annual meeting of stockholders,
and thereafter at annual meetings of
Stockholders, provided that neither such voting
right nor the right of the holders of any other
series of Cumulative Preferred Stock, if any, to
increase, in certain cases, the authorized number
of Directors shall be exercised unless the
holders of ten percent (10%) in number of shares
of Cumulative Preferred Stock outstanding shall
be present in person or by proxy. The absence of
a quorum of the holders of Common Stock shall not
affect the exercise by the holders of Cumulative
Preferred Stock of such voting right. At any
meeting at which the holders of Cumulative
Preferred Stock shall exercise such voting right
initially during an existing default period, they
shall have the right, voting as a class, to elect
Directors to fill such vacancies, if any, in the
Board of Directors as may then exist up to two
(2) Directors or, if such right is exercised at
an annual meeting, to elect two (2) Directors.
If the number which may be so elected at any
special meeting does not amount to the required
number, the holders of the Cumulative Preferred
Stock shall have the right to make such increase
in the number of Directors as shall be necessary
to permit the election by them of the required
number. After the holders of the Cumulative
Preferred Stock shall have exercised their right
to elect Directors in any default period and
during the continuance of such period, the number
of Directors shall not be increased or decreased
except by vote of the holders of Cumulative
Preferred Stock as herein provided or pursuant to
the rights of any equity securities ranking
senior to or pari passu with the Series A Junior
Participating Cumulative Preferred Stock.
(iii) Unless the holders of Cumulative
Preferred Stock shall, during an existing default
period, have previously exercised their right to
elect Directors, the Board of Directors may
order, or any stockholder or stockholders owning
in the aggregate not less than ten percent (10%)
of the total number of shares of Cumulative
Preferred Stock outstanding, irrespective of
series, may request, the calling of a special
meeting of the holders of Cumulative Preferred
Stock, which meeting shall thereupon be called by
the President, a Vice-President or the Secretary
of the Corporation. Notice of such meeting and
of any annual meeting at which holders of
Cumulative Preferred Stock are entitled to vote
pursuant to this paragraph (C) (iii) shall be
given to each holder of record of Cumulative
Preferred Stock by mailing a copy of such notice
to him at his last address as the same appears on
the books of the Corporation. Such meeting shall
be called for a time not earlier than 20 days and
not later than 60 days after such order or
request or in default of the calling of such
meeting within 60 days after such order or
request, such meeting may be called on similar
notice by any stockholder or stockholders owning
in the aggregate not less than ten percent (10%)
of the total number of shares of Cumulative
Preferred Stock outstanding. Notwithstanding the
provisions of this paragraph (C) (iii), no such
special meeting shall be called during the period
within 60 days immediately preceding the date
fixed for the next annual meeting of the
stockholders.
(iv) in any default period, the holders of
Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors
until the holders of Cumulative Preferred Stock
shall have exercised their right to elect two (2)
Directors voting as a class, after the exercise
of which right (x) the Directors so elected by
the holders of Cumulative Preferred Stock shall
continue in office until their successors shall
have been elected by such holders or until the
expiration of the default period, and (y) any
vacancy in the Board of Directors may (except as
provided in paragraph (C) (ii) of this Section
(3) be filled by vote of a majority of the
remaining Directors theretofore elected by the
holders of the class of stock which elected the
Director whose office shall have become vacant.
References in this paragraph (C) to Directors
elected by the holders of a particular class of
stock shall include Directors elected by such
Directors to fill vacancies as provided in clause
(y) of the foregoing sentence.
(v) Immediately upon the expiration of a
default period, (x) the right of the holders of
Cumulative Preferred Stock as a class to elect
Directors shall cease, (y) the term of any
Directors elected by the holders of Cumulative
Preferred Stock as a class shall terminate, and
(z) the number of Directors shall be such number
as may be provided for in the certificate of
incorporation or by-laws irrespective of any
increase made pursuant to the provisions of
paragraph (C) (ii) of this Section 3 (such number
being subject, however, to change thereafter in
any manner provided by law or in the certificate
of incorporation or by-laws). Any vacancies in
the Board of Directors effected by the provisions
of clauses (y) and (z) in the preceding sentence
may be filled by a majority of the remaining
Directors.
(D) Except as set forth herein, holders of
Series A Junior Participating Cumulative Preferred
Stock shall have no special voting rights and their
consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock
as set forth herein) for taking any corporate action.
Section 4. Reacquired Shares. Any shares of
Series A Junior Participating Cumulative Preferred
Stock purchased or other-wise acquired by the
Corporation in any manner whatsoever shall be retired
and cancelled promptly after the acquisition thereof.
All such shares shall upon their cancellation become
authorized but unissued shares of Cumulative Preferred
Stock and may be reissued as part of a new series of
Cumulative Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth
herein.
Section 5. Liquidation, Dissolution or Winding
Up.
(A) Upon any voluntary liquidation, dissolution
or winding up of the Corporation, no distribution
shall be made to the holders of shares of stock
ranking (either as to dividends or upon liquidation,
dissolution or winding up) junior to the Series A
Junior Participating Cumulative Preferred Stock
unless, prior thereto, the holders of shares of Series
A Junior Participating Cumulative Preferred Stock
shall have received $150 per share, plus an amount
equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the
date of such payment (the "Series A Liquidation
Preference"). Following the payment of the full
amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders
of shares of Series A Junior Participating Cumulative
Preferred Stock unless, prior thereto, the holders of
shares of Common Stock shall have received an amount
per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately
adjusted as set forth in subparagraph C below to
reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Common
Stock) (such number in clause (ii), the "Adjustment
Number"). Following the payment of the full amount of
the Series A Liquidation Preference and the Common
Adjustment in respect of all outstanding shares of
Series A Junior Participating Cumulative Preferred
Stock and Common Stock, respectively, holders of
Series A Junior Participating Cumulative Preferred
Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the
Adjustment Number to l with respect to such Cumulative
Preferred Stock and Common Stock, on a per share
basis, respectively.
(B) In the event, however, that there are not
sufficient assets available to permit payment in full
of the Series A Liquidation Preference and the
liquidation preferences of all other series of
Cumulative Preferred Stock, if any, which rank on a
parity with the Series A Junior Participating
Cumulative Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such
parity shares in proportion to their respective
liquidation preferences. In the event, however, that
there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common
stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the
Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment
Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding
immediately after such event and the denominator of
which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 6. Consolidation, Merger, etc. In case
the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other
property, then in any such case the shares of Series A
Junior Participating Cumulative Preferred Stock shall
at the same time be similarly exchanged or changed in
an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times
the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock
is changed or exchanged. In the event the Corporation
shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each
such case the amount set forth in the preceding
sentence with respect to the exchange or change of
shares of Series A Junior Participating Cumulative
Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding
immediately after such event and the denominator of
which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. No Redemption. The shares of Series
A Junior Participating Cumulative Preferred Stock
shall not be redeemable.
Section 8. Ranking. The Series A Junior
Participating Cumulative Preferred Stock shall rank
junior to all other series of the Corporation' s
preferred stock as to the payment of dividends and the
distribution of assets.
Section 9. Amendment. The Restated Certificate
of incorporation of the Corporation shall not be
further amended in any manner which would materially
alter or change the powers, preferences or special
rights of the Series A Junior Participating Cumulative
Preferred Stock so as to affect them adversely without
the affirmative vote of the holders of a majority or
more of the outstanding shares of Series A Junior
Participating Cumulative Preferred Stock, voting
separately as a class.
Section 10. Fractional Shares. Series A Junior
Participating Cumulative Preferred Stock may be issued
in fractions of a share which shall entitle the
holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit
of all other rights of holders of Series A Junior
Participating Cumulative Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed
this Certificate and do affirm the foregoing as true
under the penalties of perjury this 29th day of
September, 1987.
/s/ J. J. Burdge
J. J. Burdge
Chairman of the Board
Attest:
/s/ Paul C. Coppock
Paul C. Coppock
Assistant Secretary
Exhibit 4(b)
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF ______________________
____________ PREFERRED STOCK
($1.25 PAR VALUE)
of
Harsco Corporation
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, _________________, _________________,
and _________________, _________________, of Harsco
Corporation, a corporation organized and existing
under the General Corporation Law of the State of
Delaware, in accordance with the provisions of Section
103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred
upon the Board of Directors by the Restated
Certificate of Incorporation of the said Corporation,
the said Board of Directors on _________________,
adopted the following resolution creating a series of
_______ shares of __________ Preferred Stock
designated as _________________________:
RESOLVED, that pursuant to the authority
vested in the Board of Directors of this Corporation
in accordance with the provisions of its Restated
Certificate of Incorporation, a series of
________________________ of the Corporation be and it
hereby is created, and that the designation and amount
thereof and the voting powers, preferences and
relative, participating, optional and other special
rights of the shares of such series, and the
qualifications, limitations or restrictions thereof
are as follows:
Section 1. Designation and Amount. The
shares of such series shall be designated as
"________________________" and the number of shares
constituting such series shall be _______________.
Section 2. Dividends. [The dividend rate
on the shares of _________________ shall be
_________________.] [Insert description of any
adjustable or floating dividend rate.] [The amount
of dividends payable for the initial dividend period
or any period shorter than a full quarterly dividend
period shall be computed on the basis of 30-day months
and a 360-day year.]
Section 3. Voting Rights. [The
__________________ shall have no voting rights other
than the voting rights set forth in the Restated
Certificate of Incorporation of the Company or as
otherwise provided by Delaware law.] [Insert
description of any additional voting rights.]
Section 4. Reacquired Shares. [Any shares
of __________________ purchased or otherwise acquired
by the Corporation in any manner whatsoever shall be
retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their
cancellation become authorized but unissued shares of
_________________ and may be reissued as part of a new
series of _________________ to be created by
resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance
set forth herein.] [So long as any shares of the
_________________ are outstanding, shares of the
_________________ which are purchased, redeemed or
otherwise acquired by the Company shall not be
reissued, or otherwise disposed of, as shares of
_________________.]
Section 5. Liquidation, Dissolution or
Winding Up.
[In the event of any involuntary
liquidation, dissolution or winding up of the Company,
the holders of the _________________ shall be
entitled to receive [$_______ per share] (which amount
shall be deemed to be its stated value on involuntary
liquidation) plus accrued dividends to the date of
distribution, whether or not earned or declared.]
[In the event of any voluntary liquidation,
dissolution or winding up of the Company, the holders
of the _________________ shall be entitled to receive
[$_______ per share] plus an amount equal to the
accrued dividends thereon to the date of distribution,
whether or not earned or declared.] [Insert
description of any additional or alternative
provisions regarding liquidation, dissolution or
winding up of the Company.]
Section 6. Redemption. [Optional]
[Mandatory] Redemption [Non-Redeemable]. [The
___________ will not be redeemable prior to ______.
Thereafter,] the Company shall have the option to
redeem the whole or any part of the
___________________ at any time on at least thirty
day's notice at [$_______ per share] [the following
redemption prices, together with any accrued dividends
to the date of such redemption:
If Redeemed During Per Share If Redeemed During Per Share
the 12-month Redemption the 12-month Redemption
Period Ending Price Period Ending on Price
on __________, $ ___________, $
______ _______
______ _______
______ _______
______and thereafter, together with any accrued
dividends to the date of such redemption.] [Insert any
mandatory redemption provisions.] [The _________
shall not be redeemed by the Corporation at any time.]
Section 7. [Conversion or Exchange.] [The
_______ shall not have any conversion or exchange
rights.] [Insert description of any conversion or
exchange rights.]
Section 8. [Ranking. The
______________________ shall rank ___________ to all
other series of the Corporation's preferred stock as
to the payment of dividends and the distribution of
assets.]
Section 9. [Amendment. The Restated
Certificate of incorporation of the Corporation shall
not be further amended in any manner which would
materially alter or change the powers, preferences or
special rights of the ___________________________ so
as to affect them adversely without the affirmative
vote of the holders of a majority or more of the
outstanding shares of _____________________________,
voting separately as a class.]
Section 10. Fractional Shares.
______________ _____________________ may [not] be
issued in fractions of a share [which shall entitle
the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit
of all other rights of holders of
________________________________________].
IN WITNESS WHEREOF, we have executed and
subscribed this Certificate and do affirm the
foregoing as true under the penalties of perjury this
__ day of _____________.
_________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
Exhibit 4(f)
======================================================
HARSCO CORPORATION,
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
AND
CHEMICAL BANK
_____________
FIRST SUPPLEMENTAL INDENTURE
Dated as of _________________ , 199_
(Supplemental to Indenture dated as of May 1, 1985)
_____________
Debt Securities
======================================================
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of
the ____ day of __________, 199_, is between Harsco
Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called
the "Company"), The Chase Manhattan Bank (National
Association), a national banking association duly
organized and existing under the laws of the United
States (the "Resigning Trustee") and Chemical Bank, a
banking corporation duly organized and existing under
the laws of the State of New York (the "Trustee").
W I T N E S S E T H:
-------------------
WHEREAS, the Company has heretofore executed and
delivered to the Resigning Trustee an Indenture dated
as of May 1, 1985 (the "Indenture");
[WHEREAS, pursuant to Section 303 of the
Indenture, the Resigning Trustee had duly
authenticated and delivered on ___________,
___________, _____________ of which are outstanding as
of the effective date hereof.
* * *
WHEREAS, pursuant to Section 303 of the
Indenture, the Resigning Trustee had duly
authenticated and delivered on ___________,
___________, _____________ of which are outstanding
as of the effective date hereof.]
WHEREAS, by letter dated November 29, 1994, the
Resigning Trustee resigned as trustee under the
Indenture, Paying Agent and Security Registrar such
resignation to become effective upon acceptance of
appointment by a successor trustee;
WHEREAS, Section 901(8) of the Indenture provides
that, without the consent of any Holders of the
Securities of any series, the Company, when authorized
by its Board Resolutions, and the Trustee may enter
into an indenture supplemental thereto to evidence and
provide for the acceptance of appointment of a
successor trustee with respect to Securities of one or
more series;
WHEREAS, the Company is entering into this First
Supplemental Indenture to appoint Chemical Bank as
successor trustee under the Indenture, Paying Agent
and Security Registrar, to evidence and provide for
the acceptance of such appointment by Chemical Bank,
and to add provisions for defeasance of any series of
Securities issued after effectiveness of this First
Supplemental Indenture provided that the terms of the
Securities of such series permit such defeasance;
WHEREAS, Section 902 of the Indenture provides
that, with the consent of the Holders of not less than
66 % in principal of the Outstanding Securities of
each series affect thereby, the Company, when
authorized by Board Resolutions, and the Trustee may
enter into an indenture supplemental thereto for the
purpose of adding any provisions to the indenture;
WHEREAS, the provision regarding defeasance to be
added will not affect any Outstanding Securities and
therefore the consent of the Holders of the
Outstanding Securities is not required;
WHEREAS, the Company represents that all acts and
things necessary to constitute this First Supplemental
Indenture a valid, binding and enforceable instrument
have been done and performed, and the execution of
this First Supplemental Indenture has in all respects
been duly authorized, and the Company, in the exercise
of legal right and power in it vested, is executing
this First Supplemental Indenture; and
WHEREAS, the Company has heretofore delivered or
is delivering contemporaneously herewith to the
Trustee (i) a copy of the resolution of its Board of
Directors certified by its Secretary or an Assistant
Secretary authorizing the execution of the First
Supplemental Indenture, and (ii) an Officers'
Certificate and an Opinion of Counsel each stating
that the execution and delivery of this First
Supplemental Indenture comply with the provisions of
Article Nine of the Indenture, and that all conditions
precedent provided for in the Indenture to the
execution and delivery of this First Supplemental
Indenture have been complied with:
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants herein contained and for
other valuable consideration, the receipt whereof is
hereby acknowledged, the parties have executed and
delivered this First Supplemental Indenture and the
Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective
holders, from time to time, of the Securities, as
follows:
Section 1. Definitions. (a) For all purposes
of this First Supplemental Indenture, except as
otherwise expressly provided or unless the context
otherwise requires, the terms used herein shall have
the meanings assigned to them in the Indenture.
(b) For all purposes of this First
Supplemental Indenture and the Indenture, as
supplemented by this First Supplemental Indenture, the
following terms shall have the following meanings:
"Corporate Trust Office" means the
principal office of the Trustee in New York,
New York at which at any particular time its
corporate trust business shall be
administered, which office at the date
hereof is located at 450 West 33rd Street,
New York, New York 10001, Attention:
Corporate Trust Administration.
"U.S. Government Securities" as used in
Section 403 means securities that are (i)
direct obligations of the United States of
America for the payment of which its full
faith and credit is pledged or
(ii) obligations of a Person controlled or
supervised by and acting as an agency or
instrumentality of the United States of
America, the timely payment of which is
unconditionally guaranteed as a full faith
and credit obligation by the United States
of America, which, in either case under
clauses (i) or (ii) are not callable or
redeemable at the option of the issuer
thereof, and shall also include a depository
receipt issued by a bank or trust company as
custodian with respect to any such U.S.
Government Security or a specific payment of
interest on or principal of any such U.S.
Government Security held by such custodian
for the account of the holder of a
depository receipt, provided that (except as
required by law) such custodian is not
authorized to make any deduction from the
amount payable to the holder of such
depository receipt from any amount received
by the custodian in respect of the U.S.
Government Security evidenced by such
depository receipt.
Section 2. Appointment of Trustee, Paying Agent
and Registrar. The Company hereby appoints Chemical
Bank as trustee under the Indenture, Paying Agent and
Security Registrar to succeed to, and hereby vests
Chemical Bank with, all the rights, powers and trusts
of Resigning Trustee under the Indenture with like
effect as if originally named as Trustee, Paying Agent
and Registrar in the Indenture.
Section 3. Representations, Warranties and
Agreements of the Company. (a) The Company hereby
represents and warrants that the Company is not, and
upon effectiveness of this First Supplemental
Indenture, will not be, in default in the performance
or observance of any of the covenants or conditions of
the Indenture and that no Event of Default has
occurred or is continuing.
(b) The Company hereby agrees that,
promptly after the effective date of this First
Supplemental Indenture, it will cause a notice,
substantially in the form of Exhibit A annexed hereto,
to be sent to each Holder of the Securities in
accordance with the provisions of Section 6.10(f) of
the Indenture.
Section 4. Concerning the Trustee. (a) The
Trustee accepts the trusts of the Indenture as
supplemented by this First Supplemental Indenture and
agrees to perform the same, but only upon the terms
and conditions set forth in the Indenture, as
supplemented by this First Supplemental Indenture,
with like effect as if originally named as trustee
under the Indenture.
(b) The Trustee hereby accepts its appointment
as Paying Agent and Security Registrar and accepts the
rights, powers, duties and obligations of the
Resigning Trustee in its capacity as Paying Agent and
Security Registrar, upon the terms and conditions set
forth in the Indenture, as supplemented by this First
Supplemental Indenture, with like effect as if
originally named as Paying Agent and Security
Registrar.
(c) Without limiting the generality of the
foregoing, the Trustee assumes no responsibility for
the correctness of the recitals herein contained,
which shall be taken as the statements of the Company.
Section 5. Modifications to the Provisions of
Section 301. Subsection (10) of Section 301 of the
Indenture is hereby amended to read as follows:
(10) the application, if any, of
Section 401(B) or 403 herein to the
Securities of the series; and
Section 6. Modifications to the Provisions of
Section 402. Section 402 of the Indenture is hereby
amended to read as follows:
SECTION 402. Application of Trust
Money.
Subject to the provisions of the last
paragraph of Section 1003, all money
deposited with the Trustee pursuant to
Sections 401 or 403 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 the
payment of which such money has been
deposited with the Trustee.
Section 7. Additions to Article Four. Article
Four of the Indenture is hereby amended to add the
following provisions after Section 402:
SECTION 403. Covenant Defeasance of
Securities of Any Series.
If this Section 403 is specified as
contemplated by Section 301 to be applicable
to the Securities of any series, then the
Company shall cease to be under any
obligation to comply with any term,
provision or condition of any covenant
specified as contemplated by Section 301
with respect to Securities of any series at
any time after the applicable conditions set
forth below have been satisfied:
(1)(a) the Company shall have
deposited or caused to be deposited
irrevocably with the Trustee as trust funds
in trust, specifically pledged as security
for, and dedicated solely to, the benefit of
the Holders of the Securities of such series
(i) money in the currency in which such
Securities are payable in an amount, or (ii)
U.S. Government Securities which through the
payment of interest and principal in respect
thereof in accordance with their terms will
provide, not later than one day before the
due date of any payment, money in the
currency in which such Securities are
payable in an amount, or (iii) a combination
of (i) and (ii), sufficient, in the opinion
of a nationally recognized firm of
independent public accountants expressed in
a written certification thereof delivered to
the Trustee, to pay and discharge each
installment of principal (including
mandatory sinking fund payments) of, and
premium (not relating to optional
redemption), if any, and interest on, the
Outstanding Securities of such series on the
dates such installments of principal of, and
premium (not relating to optional
redemption), if any, or interest are due; or
(b) the Company has properly fulfilled
such other means of defeasance as is
specified to be applicable to the Securities
of such series;
(2) the Company has paid or caused to
be paid all other sums payable with respect
to the Securities of such series at the time
outstanding;
(3) such deposit will not result in a
breach or violation of, or constitute a
default under, this Indenture or any other
agreement or instrument to which the Company
is a party or by which it is bound;
(4) no Event of Default or event
which, after notice or lapse of time or
both, would become an Event of Default shall
have occurred and be continuing on the date
of such deposit;
(5) the Company has delivered to the
Trustee an Opinion of Counsel to the effect
that the trust resulting from the deposit,
defeasance and discharge under this Section
403 will not constitute, or is qualified as,
a regulated investment company under the
Investment Company Act of 1940; and
(6) the Company has delivered to the
Trustee an Officer's Certificate and an
Opinion of Counsel each stating that all
conditions precedent herein provided for
relating to the defeasance of the covenants
referred to in this Section 403 with respect
to Securities of any such series at the time
outstanding have been complied with.
Notwithstanding the discharge and defeasance
of any term, provision or condition of any
covenant specified as contemplated by
Section 301 with respect to Securities of
any series at the time outstanding, all
other obligations of the Company in this
Indenture including, without limitation, the
Company's primary liability for the payment
of the principal (including mandatory
sinking fund payments) of, and premium, if
any, and interest on all Securities of such
series shall survive until the payment of
all such principal, premium, if any and
interest has been made.
SECTION 404. Reinstatement.
If the Trustee is unable to apply any
money or U.S. Government Securities in
accordance with Section 403 by reason of any
legal proceeding or by reason of any order
or judgment of any court or governmental
authority enjoining, restraining or
otherwise prohibiting such application, the
Company's obligations under this Indenture
and the Securities shall be revived and
reinstated as though no deposit had occurred
pursuant to Section 403 until such time as
the Trustee is permitted to apply all such
money or U.S. Government Securities in
accordance with Section 403.
Section 8. Effectiveness of this First
Supplemental Indenture. This First Supplemental
Indenture shall become effective as of the opening of
business on _____________, 199_.
Section 9. Further Assurances. The Company and
the Resigning Trustee hereby agree to execute and
deliver such further instruments and shall do such
other things as the Trustee may reasonably request so
as to more fully vest in Chemical Bank all the rights,
powers and trusts hereby assigned, transferred and
delivered to Chemical Bank, as Trustee, Paying Agent
and Security Registrar.
Section 10. Miscellaneous. (a) Except as
hereby expressly amended, the Indenture is in all
respects ratified and confirmed and all the terms,
provisions and conditions thereof shall be and remain
in full force and effect.
(b) All the covenants, stipulations,
promises and agreements in this First Supplemental
Indenture contained by or on behalf of the Company
shall bind its successors and assigns, whether so
expressed or not.
(c) This First Supplemental Indenture shall
be deemed to be contract made under the laws of the
State of New York, and for all purposes shall be
governed by and construed in accordance with the laws
of said State.
(d) If any provision of the Indenture as
supplemented by this First Supplemental Indenture
limits, qualifies or conflicts with a provision of the
Trust Indenture Act that is required under such Act to
be a part of or govern the Indenture, such latter
provision shall control. If any provision of the
Indenture, as supplemented by this First Supplemental
Indenture, modifies or excludes any provision of the
Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to
apply to the Indenture as so modified or to be
excluded, as the case may be.
(e) The titles and headings of the sections
of this First Supplemental Indenture have been
inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify
or restrict any of the terms or provisions hereof.
(f) This First Supplemental Indenture may
be executed in any number of counterparts each of
which shall be an original, but such counterparts
shall together constitute one and the same instrument.
(g) In case any provision in this First
Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and
enforceability of the remaining provisions hereof or
of the Indenture shall not in any way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have
caused this First Supplemental Indenture to be duly
executed and acknowledged, and their respective
corporate seals to be hereunto affixed and duly
attested, all as of the date first above written.
HARSCO CORPORATION
By: ____________________________
Name:
Title:
[By: ____________________________]
Name:
Title:
Attest:
_________________________
[Corporate Seal]
CHEMICAL BANK, AS TRUSTEE
By: _____________________________
Name:
Title:
Attest:
_________________________
[Corporate Seal]
THE CHASE MANHATTAN BANK
(National Association)
By: _____________________________
Name:
Title:
Attest:
_________________________
[Corporate Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of _____________, 199_ before me
personally came ___________________________, to me
known, who, being by me duly sworn, did depose and say
that he resides at _______________________, that he is
__________________________ of Harsco Corporation, one
of the parties described in and which executed the
above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so
affixed by authority of the board of directors of said
corporation, and that he signed his name thereto by
like authority.
_________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of ____________, 199_ before me
personally came ________________________________, to
me known, who, being by me duly sworn, did depose and
say that he resides at _______________________, that
he is _______________________________ of Harsco
Corporation, one of the parties described in and which
executed the above instrument; that he knows the
corporate seal of said corporation; that the seal
affixed to the said instrument is such corporate seal;
that it was so affixed by authority of the board of
directors of said corporation, and that he signed his
name thereto by like authority.
_________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _________________, 199_ before
me personally came _________________________________,
to me known, who, being by me duly sworn, did depose
and say that (s)he resides at ______________________,
that (s)he is _____________ of Chemical Bank, as
Trustee, one of the parties described in and which
executed the above instrument; that (s)he knows the
corporate seal of said corporation; that the seal
affixed to the said instrument is such corporate seal;
that it was so affixed by authority of the board of
directors of said corporation, and that (s)he signed
(his) (her) name thereto by like authority.
________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _________________, 199_ before
me personally came _________________, to me known,
who, being by me duly sworn, did depose and say that
(s)he resides at _____________________________, that
(s)he is _____________ of The Chase Manhattan Bank
(National Association), one of the parties described
in and which executed the above instrument; that (s)he
knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the board
of directors of said corporation, and that (s)he
signed (his) (her) name thereto by like authority.
________________________________
Notary Public
[NOTARIAL SEAL]
Exhibit A
HARSCO CORPORATION
NOTICE
To the Holders of _________________________________ of
Harsco Corporation:
NOTICE IS HEREBY GIVEN, pursuant to Section 6.10(f) of
the Indenture (the "Indenture") dated as of May 1,
1985 by and between Harsco Corporation (the "Company")
and The Chase Manhattan Bank (National Association),
as Trustee ("Chase Manhattan"), that Chase Manhattan
has resigned as Trustee, Paying Agent and Security
Registrar under the Indenture.
Chemical Bank, a banking corporation duly
organized and existing under the laws of the State of
New York, has accepted appointment as Trustee, Paying
Agent and Security Registrar. The address of the
corporate trust office of Chemical Bank is 450 West
33rd Street, New York, New York 10001.
Chase Manhattan's resignation as Trustee, Paying
Agent and Security Registrar and Chemical Bank's
appointment as successor Trustee, Paying Agent and
Security Registrar were effective as of the opening of
business on _____________, 199_.
Dated:
Very truly yours,
HARSCO CORPORATION
Exhibit 4(g)
======================================================
HARSCO CORPORATION,
Issuer
AND
CHEMICAL BANK,
Trustee
_______________
INDENTURE FOR
SUBORDINATED DEBT SECURITIES
Dated as of ____________, 199_
________________
======================================================
HARSCO CORPORATION
Reconciliation and tie between Trust Indenture Act of
1939 and
Indenture, dated as of __________, 199_
Trust Indenture
Act Section Indenture Section
310(a)(1) . . . . . . . . . . 609
(a)(2) . . . . . . . . . . 609
(a)(3) . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . 608, 610
311 (a) . . . . . . . . . . 613
(b) . . . . . . . . . . 613
312 (a) . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . 702(b)
(c) . . . . . . . . . . 702(c)
313 (a) . . . . . . . . . . 703(a)
(b) . . . . . . . . . . 703(a)
(c) . . . . . . . . . . 703(a)
(d) . . . . . . . . . . 703(b)
314 (a) . . . . . . . . . . 704
(a)(4) . . . . . . . . . . 101, 1004
(b) . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . 102
(c)(2) . . . . . . . . . . 102
(c)(3) . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . 102
315 (a) . . . . . . . . . . 601
(b) . . . . . . . . . . 602
(c) . . . . . . . . . . 601
(d) . . . . . . . . . . 601
(e) . . . . . . . . . . 514
316 (a) . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . 508
(c) . . . . . . . . . . 104(c)
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.
TABLE OF CONTENTS
Page
RECITALS 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . 8
SECTION 103. Form of Documents Delivered
to Trustee . . . . . . . . . . . . . 9
SECTION 104. Acts of Holders . . . . . . . . . . 9
SECTION 105. Notices, Etc., to Trustee
and Company . . . . . . . . . . . . 10
SECTION 106. Notice to Holders; Waiver . . . . . 11
SECTION 107. Conflict with Trust
Indenture Act . . . . . . . . . . . 11
SECTION 108. Effect of Headings and Table
of Contents . . . . . . . . . . . . 12
SECTION 109. Successors and Assigns . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . 12
SECTION 113. Legal Holidays . . . . . . . . . . . 12
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . 13
SECTION 202. Form of Trustee's
Certificate of
Authentication . . . . . . . . . . . 14
SECTION 203. Form of Legend for Book-
Entry Securities . . . . . . . . . . 14
ARTICLE III
SECURITIES
SECTION 301. Amount Unlimited; Issuable
in Series . . . . . . . . . . . . . 14
SECTION 302. Denominations . . . . . . . . . . . 17
SECTION 303. Execution, Authentication,
Delivery and Dating of
Securities . . . . . . . . . . . . . 17
SECTION 304. Temporary Securities . . . . . . . . 19
_________________
Note: This table of contents shall not, for any
purpose, be deemed to be part of the Indenture.
TABLE OF CONTENTS (Cont'd)
Page
SECTION 305. Registration, Registration
of Transfer and Exchange . . . . . . 19
SECTION 306. Mutilated, Destroyed, Lost
and Stolen Securities . . . . . . . 21
SECTION 307. Payment of Interest;
Interest Rights Preserved . . . . . 22
SECTION 308. Persons Deemed Owners . . . . . . . 23
SECTION 309. Cancellation . . . . . . . . . . . . 24
SECTION 310. Computation of Interest . . . . . . 24
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge
of Indenture . . . . . . . . . . . . 24
SECTION 402. Application of Trust Money . . . . . 26
SECTION 403. Covenant Defeasance of
Securities of Any Series . . . . . . 26
SECTION 404. Reinstatement . . . . . . . . . . . 27
ARTICLE V
REMEDIES
SECTION 501. Events of Default . . . . . . . . . 28
SECTION 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . 29
SECTION 503. Collection of Indebtedness
and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . 30
SECTION 504. Trustee May File Proofs of
Claim . . . . . . . . . . . . . . . 31
SECTION 505. Trustee May Enforce Claims
Without Possession of
Securities . . . . . . . . . . . . . 31
SECTION 506. Application of Money
Collected . . . . . . . . . . . . . 32
SECTION 507. Limitation on Suits . . . . . . . . 32
SECTION 508. Unconditional Right of
Holders to Receive
Principal, Premium and
Interest . . . . . . . . . . . . . . 33
SECTION 509. Restoration of Rights and
Remedies . . . . . . . . . . . . . . 33
SECTION 510. Rights and Remedies
Cumulative . . . . . . . . . . . . . 33
SECTION 511. Delay or Omission Not Waiver . . . . 34
SECTION 512. Control by Holders . . . . . . . . . 34
SECTION 513. Waiver of Past Defaults . . . . . . 34
SECTION 514. Undertaking for Costs . . . . . . . 35
SECTION 515. Waiver of Stay or Extension
Laws . . . . . . . . . . . . . . . . 35
ARTICLE VI
THE TRUSTEE
TABLE OF CONTENTS (Cont'd)
Page
SECTION 601. Certain Duties and
Responsibilities . . . . . . . . . . 35
SECTION 602. Notice of Defaults . . . . . . . . . 36
SECTION 603. Certain Rights of Trustee . . . . . 36
SECTION 604. Not Responsible for Recitals
or Issuance of Securities . . . . . 37
SECTION 605. May Hold Securities . . . . . . . . 37
SECTION 606. Money Held in Trust . . . . . . . . 37
SECTION 607. Compensation and
Reimbursement . . . . . . . . . . . 38
SECTION 608. Disqualification;
Conflicting Interests . . . . . . . 38
SECTION 609. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . 38
SECTION 610. Resignation and Removal;
Appointment of Successor . . . . . . 39
SECTION 611. Acceptance of Appointment by
Successor . . . . . . . . . . . . . 40
SECTION 612. Merger, Conversion,
Consolidation or Succession
to Business . . . . . . . . . . . . 42
SECTION 613. Preferential Collection of
Claims Against Company . . . . . . . 42
SECTION 614. Appointment of
Authenticating Agent . . . . . . . . 42
SECTION 615. Maintenance of Agency by
Trustee . . . . . . . . . . . . . . 44
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Names and Addresses of
Holders . . . . . . . . . . . . . . 44
SECTION 702. Preservation of Information;
Communications to Holders . . . . . 45
SECTION 703. Reports by Trustee . . . . . . . . . 45
SECTION 704. Reports by Company . . . . . . . . . 46
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 801. Company May Consolidate,
etc., on Certain Terms . . . . . . . 46
SECTION 802. Successor Corporation to Be
Substituted . . . . . . . . . . . . 47
SECTION 803. Opinion of Counsel to be
Given Trustee . . . . . . . . . . . 47
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures
Without Consent of Holders . . . . . 48
SECTION 902. Supplemental Indentures with
Consent of Holders . . . . . . . . . 49
TABLE OF CONTENTS (Cont'd)
Page
SECTION 903. Execution of Supplemental
Indentures . . . . . . . . . . . . . 50
SECTION 904. Effect of Supplemental
Indentures . . . . . . . . . . . . . 50
SECTION 905. Conformity with Trust
Indenture Act . . . . . . . . . . . 51
SECTION 906. Reference in Securities to
Supplemental Indentures . . . . . . 51
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal,
Premium and Interest . . . . . . . 51
SECTION 1002. Maintenance of Office or
Agency . . . . . . . . . . . . . . 51
SECTION 1003. Money for Securities
Payments to Be Held in
Trust . . . . . . . . . . . . . . . 52
SECTION 1004. Statement as to Compliance . . . . 54
SECTION 1005. Waiver of Certain
Covenants . . . . . . . . . . . . . 54
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . 54
SECTION 1102. Election to Redeem; Notice
to Trustee . . . . . . . . . . . . 55
SECTION 1103. Selection by Trustee of
Securities to Be Redeemed . . . . . 55
SECTION 1104. Notice of Redemption . . . . . . . 56
SECTION 1105. Deposit of Redemption
Price . . . . . . . . . . . . . . . 56
SECTION 1106. Securities Payable on
Redemption Date . . . . . . . . . . 57
SECTION 1107. Securities Redeemed in
Part . . . . . . . . . . . . . . . 57
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . 58
SECTION 1202. Satisfaction of Sinking
Fund Payments with
Securities . . . . . . . . . . . . 58
SECTION 1203. Redemption of Securities
for Sinking Fund . . . . . . . . . 58
ARTICLE XIII
CONVERSION OF SECURITIES
TABLE OF CONTENTS (Cont'd)
Page
SECTION 1301. Applicability; Conversion
Privilege and Conversion
Price . . . . . . . . . . . . . . . 59
SECTION 1302. Exercise of Conversion
Privilege . . . . . . . . . . . . . 60
SECTION 1303. Fractions of Shares . . . . . . . . 60
SECTION 1304. Adjustment of Conversion
Price . . . . . . . . . . . . . . . 61
SECTION 1305. Notice of Adjustments of
Conversion Price . . . . . . . . . 64
SECTION 1306. Notice of Certain
Corporate Action . . . . . . . . . 64
SECTION 1307. Company to Reserve Common
Stock . . . . . . . . . . . . . . . 65
SECTION 1308. Taxes on Conversion . . . . . . . . 65
SECTION 1309. Covenant as to Common
Stock . . . . . . . . . . . . . . . 65
SECTION 1310. Cancellation of Converted
Securities . . . . . . . . . . . . 66
SECTION 1311. Provisions in Case of
Consolidation, Merger or
Sale of Assets . . . . . . . . . . 66
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinate to
Senior Indebtedness . . . . . . . . 67
SECTION 1402. Payment Over of Proceeds
of Securities on
Dissolution, etc . . . . . . . . . 67
SECTION 1403. Priority of Senior
Indebtedness upon Maturity . . . . 70
SECTION 1404. Obligation of Company to
Pay Holders of Securities
Not Affected . . . . . . . . . . . 70
SECTION 1405. Trustee as Holder of
Senior Indebtedness . . . . . . . . 70
SECTION 1406. Notice to Trustee to
Effectuate Subordination . . . . . 70
SECTION 1407. Modification, Extension,
etc. of Senior
Indebtedness . . . . . . . . . . . 71
SECTION 1408. Trustee Has No Fiduciary
Duty to Holders of Senior
Indebtedness . . . . . . . . . . . 71
SECTION 1409. Paying Agents Other Than
the Trustee . . . . . . . . . . . . 71
SECTION 1410. Rights of Holders of
Senior Indebtedness Not
Impaired . . . . . . . . . . . . . 72
SECTION 1411. All Indenture Provisions
Subject to Subordination
Provisions . . . . . . . . . . . . 72
INDENTURE, dated as of __________, 199_, between
HARSCO CORPORATION, a Delaware corporation duly
organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its
principal office at Camp Hill, Pennsylvania 17011 and
CHEMICAL BANK, a banking corporation duly organized
and existing under the laws of the State of New York,
as Trustee (herein called the "Trustee").
RECITALS
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 series thereof, as follows:
ARTICLE I
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;
(3) all accounting terms not otherwise
defined herein have the meanings assigned to them
in accordance with generally accepted accounting
principles;
(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;
and
(5) all references to either gender shall
refer to both genders.
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.
"Authenticating Agent" means any Person
authorized by the Trustee to act on behalf of the
Trustee to authenticate Securities.
"Board of Directors" means the Board of Directors
of the Company or any duly authorized committee of
such Board.
"Book-Entry Security" means a Security bearing
the legend specified in Section 203, evidencing all or
part of the Securities of a series and registered in
the name of the Depository or its nominee.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board
of Directors, and to be in full force and effect on
the date of such certification, and delivered to the
Trustee.
"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 to close.
"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 corporation shall have become such pursuant
to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor
corporation.
"Common Stock" includes any stock of any class of
the Company which has no preference in respect of
dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or
winding-up of the Company and which is not subject to
redemption by the Company. However, subject to the
provisions of Section 1311, shares issuable on
conversion of Securities of a series shall include
only shares of the class designated as Common Stock of
the Company at the date of this instrument or shares
of any class or classes resulting from any
reclassification or reclassifications thereof and
which have no preference in respect of dividends or of
amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of
the Company and which are not subject to redemption by
the Company; provided that if at any time there shall
be more than one such resulting class, the shares of
each such class then so issuable shall be
substantially in the proportion which the total number
of shares of such class resulting from all such
reclassifications bears to the total number of shares
of all such classes resulting from all such
reclassifications.
"Company Request" or "Company Order" means a
written request or order signed in the name of the
Company by its Chairman, its President or a Vice
President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Conversion Price" has the meaning specified in
Section 1301.
"Corporate Trust Office" means the principal
office of the Trustee in New York, New York at which
at any particular time its corporate trust business
shall be administered, which office at the date hereof
is located at 450 West 33rd Street, New York, New York
10001, Attention: Corporate Trust Administration.
"corporation" includes corporations,
associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depository" means, with respect to the
Securities of any series issuable or issued in whole
or in part in the form of one or more Book-Entry
Securities, the clearing agency registered under the
Securities Exchange Act of 1934, as amended, specified
for that purpose as contemplated by Section 301.
"Event of Default" has the meaning specified in
Section 501.
"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. The term "Indenture"
shall also include the terms of particular series of
Securities established as contemplated by Section 301,
provided, however, that, if at any time more than one
Person is acting as Trustee under this instrument due
to the appointment of one or more separate Trustees
for any one or more separate series of Securities
pursuant to Section 610(e), "Indenture" shall mean,
with respect to such series of Securities for which
any such Person is Trustee, this instrument as
originally executed or as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the
terms of particular series of Securities for which
such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or
terms which relate solely to other series of
Securities for which such Person is not Trustee,
regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures
supplemental hereto executed and delivered after such
Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"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
instalment 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 instalment 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.
"Officers' Certificate," when used with respect
to the Company, means a certificate signed by its
Chairman, its President or a Vice President and by its
Treasurer; an Assistant Treasurer; its 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
delivered 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:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for
cancellation;
(ii) Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company
(if the Company shall act as its own Paying
Agent) for the Holders of such Securities;
provided that, if such Securities are to be
redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been
made; and
(iii) Securities 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, the principal amount of any Original Issue
Discount Security that may be counted in making such
determination and that shall be deemed to be
Outstanding for such purposes shall be equal to the
amount of the principal thereof that could be declared
to be due and payable pursuant to the terms of such
Original Issue Discount Security at the time the
taking of such action by the Holders of such requisite
principal amount is evidenced to the Trustee as
provided in Section 104(a), and provided further that
Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company,
or 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 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.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock
company, 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 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, any second vice
president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any
assistant cashier, any corporate trust officer, any
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 employee to whom such matter
is referred because of his 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, provided, however, that if at any time
there is more than one Person acting as Trustee under
this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall
have the meaning stated in the first recital of this
Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to
which such Person is not Trustee.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Senior Indebtedness" of the Company means the
principal of and premium, if any, and interest on the
indebtedness (other than the Securities) of the
Company, whether outstanding on the date of this
Indenture or thereafter created, incurred, assumed or
guaranteed, (a) for money borrowed from or guaranteed
to others, (b) under promissory notes or debentures,
bonds or other instruments of indebtedness issued
under the provisions of or pursuant to an indenture,
agreement, or similar instrument, or (c) for the
payment of money relating to the lease of any property
which lease may be capitalized on the consolidated
balance sheet of the Company and its Subsidiaries in
accordance with generally accepted accounting
principles as in effect from time to time and, in each
such case, all renewals, extensions, refundings,
amendments or modifications thereof; unless, in each
case, by the terms of the instrument creating or
evidencing the indebtedness it is provided that such
indebtedness is not superior in right of payment to
the Securities.
"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 instalment 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 instalment of principal or
interest is due and payable.
"Subsidiary" means any corporation of which the
Company, or the Company and one or more Subsidiaries,
or any one or more Subsidiaries, directly or
indirectly own voting securities entitling the holders
thereof to elect a majority of the directors, either
at all times or so long as there is no default or
contingency which permits the holders of any other
class or classes of securities to vote for the
election of one or more directors.
"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 Securities" as used in Section
403 means securities that are (i) direct obligations
of the United States of America for the payment of
which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the
United States of America, the timely payment of which
is unconditionally guaranteed as a full faith and
credit obligation by the United States of America,
which, in either case under clauses (i) or (ii) are
not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with
respect to any such U.S. Government Security or a
specific payment of interest on or principal of any
such U.S. Government Security held by such custodian
for the account of the holder of a depository receipt,
provided that (except as required by law) such
custodian is not authorized to make any deduction from
the amount payable to the holder of such depository
receipt from any amount received by the custodian in
respect of the U.S. Government Security evidenced by
such depository receipt.
"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."
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to
the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for
in this Indenture shall include:
(1) a statement that each individual
signing such certificate or opinion has read such
covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and
scope of the examination or investigation upon
which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of
each such individual, he has made such
examination or investigation as is necessary to
enable him to express an informed opinion as to
whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the
opinion of each such individual, such condition
or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to
be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some
matters and one or more other such Persons as to other
matters, and any such Person may certify or give an
opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should
know, that the certificate or opinion or
representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an
officer or officers of the Company, stating that the
information with respect to such factual matters is in
the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should
know, that the certificate or opinion or
representations with respect to such matters are
erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other
instruments under this Indenture, they may, but need
not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed
in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee
and, where it is 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 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.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved
by the affidavit of a witness of such execution or by
a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a
capacity other than his individual capacity, such
certificate or affidavit shall also constitute
sufficient proof of his 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.
(c) The ownership of Securities shall be proved
by the Security Register.
(d) If the Company shall solicit from the
Holders any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may,
at its option, by Board Resolution, fix in advance a
record date for the determination of Holders entitled
to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. If such
a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or
other Act may be given before or after such record
date, but only the Holders of record at the close of
business on such record date shall be deemed to be
Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to
such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed
as of such record date; provided that no such
authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of
this Indenture not later than six months after the
record date.
(e) Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in
exchange 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 delivered 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 450 West 33rd
Street, New York, New York 10001, Attention:
Corporate Trust Administration, or at any other
address previously furnished in writing to the
Company by the Trustee, or, in the case of a
successor 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 specified
in the first paragraph of this instrument or at
any other address previously furnished in writing
to the Trustee by the Company.
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 address as it appears in the Security
Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Any
notice mailed to a Holder in the aforesaid manner
shall be conclusively deemed to have been received by
such Holder whether or not actually received by such
Holder. 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 a provision of the Trust Indenture Act
that is required under such Act to be a part of and
govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture
as so modified or to be excluded, as the case may be.
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.
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, the holders of Senior Indebtedness, 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 New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security or,
if applicable, the last date on which a Holder has the
right to convert its Securities 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) or conversion of such Securities 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, or on the last day
for such conversion, provided that no interest shall
accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as
the case may be.
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in
substantially the 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 the Securities. 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.
The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced
by their execution of such Securities.
SECTION 202. Form of Trustee's Certificate of
Authentication.
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
CHEMICAL BANK,
as Trustee
By:__________________________
Authorized Officer
SECTION 203. Form of Legend for Book-Entry
Securities.
Any Book-Entry Security authenticated and
delivered hereunder shall bear a legend in
substantially the following form:
"This Security is a Book-Entry Security
within the meaning of the Indenture
hereinafter referred to and is registered in
the name of a Depository or a nominee of a
Depository. This Security is exchangeable
for Securities registered in the name of a
Person other than the Depository or its
nominee only in the limited circumstances
described in the Indenture, and no transfer
of this Security (other than a transfer of
this Security as a whole by the Depository
to a nominee of the Depository or by a
nominee of the Depository to the Depository
or another nominee of the Depository) may be
registered except in such limited
circumstances."
ARTICLE III
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 set forth 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 Section 304,
305, 306, 906, 1107 or 1302 and except for any
Securities which, pursuant to Section 303, are
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 or the manner in which such date or dates
will be determined;
(5) the rate or rates at which the
Securities of the series shall bear interest, if
any, or the manner in which such rate or rates
will be determined, the date or dates from which
such interest shall accrue or the manner in which
such date or dates will be determined, 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;
(6) the place or places where the principal
of (and premium, if any) and interest on
Securities of the series shall be payable;
(7) 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) whether the Securities of the series
shall be issued in whole or in part in the form
of one or more Book-Entry Securities and, in such
case, the Depository or Depositories with respect
to such Book-Entry Security or Securities and the
circumstances under which any such Book-Entry
Security may be registered for transfer or
exchange, or authenticated and delivered, in the
name of a Person other than such Depository or
its nominee, if other than as set forth in
Section 305;
(11) if other than the principal amount
thereof, the portion of the principal amount of
Securities of the series which shall be payable
upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(12) the exchange of Securities of the
series, at the option of the Holders thereof, for
other Securities of the same series of the same
aggregate principal amount or of a different
authorized kind or different authorized
denomination or denominations;
(13) whether the Securities will be
convertible into or exchangeable for Common Stock
or any other shares of the capital stock or
securities of the Company or any other Person
and, if so, the terms and conditions upon which
such conversion will be effected including the
initial conversion price or rate, the conversion
period and other provisions in addition to or in
lieu of those described herein;
(14) any modification, amendment or
addition to the covenants of the Company set
forth in Article VII or Article X of this
Indenture with respect to the Securities of the
series;
(15) any Events of Default with respect to
Securities of the series, if not otherwise set
forth herein;
(16) the application, if any, of Section
401(B) or 403 herein to the Securities of the
series; and
(17) any other terms of the series (which
terms shall not be inconsistent with the
provisions of this Indenture).
In addition, in the case of any series after the
first series of Securities authorized pursuant to this
Indenture, there shall be delivered to the Trustee a
certificate of the Company to the effect that no
default under this Indenture or any indenture
supplemental thereto exists or is continuing.
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
such Board Resolution and set forth in such Officers'
Certificate, or in any such indenture supplemental
hereto.
At the option of the Company payment of interest
may be made by check mailed to the address of the
Person entitled thereto as such address shall appear
in the Security Register.
If any of the terms of any series of Securities
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.
The Securities of each series shall be
subordinated in right of payment to Senior
Indebtedness as provided in Article XIV.
SECTION 302. Denominations.
The Securities of each series shall be issuable
in registered form without coupons in such
denominations as shall be specified as contemplated by
Section 301. In the absence of any 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 of Securities.
The Securities shall be executed on behalf of the
Company by its Chairman, 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 deliver such Securities. If all 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 terms of particular Securities of such
series such as interest rate, maturity date, date of
issuance and date from which interest shall accrue. If
the form or terms of the Securities of the series have
been established in or pursuant to one or more Board
Resolutions, as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the
additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion
of Counsel stating:
(a) 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;
(b) 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
(c) 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, will constitute valid and legally
binding obligations of the Company, enforceable
in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium
and other laws of general applicability relating
to or affecting creditors' rights and to general
equity principles.
If such form or terms have been so established, the
Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 or
this Section 303, 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 authentication upon original issuance of
the first Security of such series to be issued.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a
certificate of authentication substantially in the
form provided for herein executed by the Trustee 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.
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 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, mimeographed 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 deliver in exchange therefor a like
principal amount of definitive Securities of the same
series 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.
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 collectively referred to as the
"Security Register") in which, subject to such
reasonable regulations as it may prescribe, the
Company shall provide for the registration of
Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of
Securities as herein provided. In the event that the
Trustee shall not be the Security Registrar, it shall
have the right to examine the Security Register at all
reasonable times.
Upon surrender for registration of transfer of
any Security of any series at the office or agency in
a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same
series, of any authorized denominations and of a like
aggregate principal amount.
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 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 deliver, 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 such Securities shall be 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 exchange shall (if so
required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the
Security Registrar, duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge 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 connection with any
registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906,
1107, or 1302 not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any
series during a period beginning at the opening of
business 15 days before the day of the mailing of a
notice of redemption of Securities of that series
selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing,
or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security
being redeemed in part.
Notwithstanding the foregoing and except as
otherwise specified or contemplated by Section 301,
any Book-Entry Security shall be exchangeable pursuant
to this Section 305 or Sections 304, 906 and 1107 for
Securities registered in the name of, and a transfer
of a Book-Entry Security of any series may be
registered to, any Person other than the Depository
for such Security or its nominee only if (i) such
Depository notifies the Company that it is unwilling
or unable to continue as Depository for such Book-
Entry Security or if at any time such Depository
ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the
Company executes and delivers to the Trustee a Company
Order that such Book-Entry Security shall be so
exchangeable and the transfer thereof so registerable
or (iii) there shall have occurred and be continuing
an Event of Default with respect to the Securities of
such series. Upon the occurrence in respect of any
Book-Entry Security of any series of any one or more
of the conditions specified in clauses (i), (ii) or
(iii) of the preceding sentence or such other
conditions as may be specified as contemplated by
Section 301 for such series, such Book-Entry Security
may be exchanged for Securities registered in the
names of, and the transfer of such Book-Entry Security
may be registered to, such Persons (including Persons
other than the Depository with respect to such series
and its nominees) as such Depository shall direct.
Notwithstanding any other provision of this Indenture,
any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in
lieu of, any Book-Entry Security shall also be a Book-
Entry Security and shall bear the legend specified in
Section 203 except for any Security which is not a
Book-Entry Security authenticated and delivered in
exchange for, or upon registration of transfer of, a
Book-Entry Security pursuant to the preceding
sentence.
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
aggregate principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them
to save each of them and any of their agents 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 deliver, in
lieu of any such destroyed, lost or stolen Security, a
new Security of the same series and of like tenor and
aggregate 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 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.
Except as otherwise provided as contemplated by
Section 301 with respect to any series of Securities,
Interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular
Record Date for such interest.
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 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 in this
Clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such
Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10
days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special
Record Date and, in the name and at the expense
of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of
Securities of such series at his 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, which
were carried by such other Security.
In the case of any Security of any series which
is converted after any Regular Record Date and on or
prior to the next succeeding Interest Payment Date
(other than any Security of a series whose Maturity is
prior to such Interest Payment Date), interest whose
Stated Maturity is on such Interest Payment Date shall
be payable on such Interest Payment Date
notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for)
shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided
in the immediately preceding sentence, in the case of
any Security of any series which is converted,
interest whose Stated Maturity is after the date of
conversion of such Security shall not be payable.
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.
SECTION 309. Cancellation.
All Securities surrendered for payment,
redemption, registration of transfer or exchange or
conversion or for credit against any sinking fund
payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and, if not
already cancelled, 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 and following the maturity of any series of
Securities through acceleration or otherwise, any
unissued Securities of such series shall be cancelled
by the Trustee. The Trustee shall destroy all
cancelled Securities and deliver a certificate of
destruction to the Company.
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 year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
When
(A) the Company shall deliver to the
Trustee for cancellation all Securities of any
series theretofore authenticated (other than any
Securities of such series which shall have been
destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 306)
and not theretofore cancelled, or
(B) this Section 401(B) is specified as
contemplated by Section 301 to be applicable to
the Securities of any series and (i) the Company
shall have irrevocably deposited with the
Trustee, in trust, cash funds or Government
Obligations (as hereinafter defined), the
principal of and interest on which when due will,
together with any cash funds set aside at the
same time and without the necessity for further
investment or reinvestment of the principal
amount of or interest from such Government
Obligations or of such cash funds, provide funds
sufficient to pay at maturity or upon redemption
all of the Outstanding Securities of such series
(other than any Securities of such series which
(x) shall have been destroyed, lost or stolen and
which shall have been replaced or paid as
provided in Section 306 or (y) shall, prior to
such deposit, have been cancelled or delivered to
the Trustee for cancellation), including
principal, premium (if any, in the case of an
early redemption) and interest due or to become
due to the date of maturity or earlier
redemption, and (ii) in the case of Securities of
such series which the Company may elect to
redeem, in whole or in part, prior to their
maturity, all action necessary to redeem such
Securities of such series, in whole or in part,
as of the specified redemption date for such
Securities of such series shall have been taken
and arrangements reasonably satisfactory to the
Trustee shall have been made for the giving of
notice of future redemption, and (iii) notice of
such deposit shall have been mailed to the
Holders of all Securities of such series as to
which such deposit is applicable, at least 10
days prior to the date on which this Indenture is
to be discharged with respect to Securities of
such series as provided below;
and if in either case the Company shall also pay or
cause to be paid all other sums payable hereunder with
respect to Securities of such series, then this
Indenture and all obligations of the Company hereunder
with respect to Securities of such series shall,
except as otherwise provided in this Section 401,
cease to be of further effect, and the Trustee, upon
Company Request accompanied by an Officers'
Certificate and an Opinion of Counsel stating that all
conditions precedent to discharge of this Indenture
with respect to Securities of such series have been
complied with, and at the cost and expense of the
Company, shall execute proper instruments
acknowledging the satisfaction of and discharging this
Indenture with respect to Securities of such series;
provided that it shall be a condition to the deposit
of cash or Government Obligations and the termination
of the Company's obligations under this Section that
such Opinion of Counsel include opinions to the effect
that: (a) Holders will not recognize income, gain or
loss for Federal income tax purposes as a result of
such deposit and termination and (b) such Holders (and
future holders of such Securities) will be subject to
tax in the same amount, manner and timing as if such
deposit and termination had not occurred. So long as
any Security of such series remains outstanding this
Indenture shall continue in effect with respect to
Securities of such series following the discharge with
respect to Securities of such series provided for
above solely with respect to rights of registration of
transfer, exchange or replacement of Outstanding
Securities of such series, rights to receive payment
of the principal thereof and premium, if any, and
interest, if any, thereon in accordance with Sections
1001 and 1002, the obligations of the Company set
forth in Section 1001, and correlative rights and
responsibilities of the Trustee; provided that no
claim for payment of principal of or premium, if any,
or interest, if any, on any Securities of such series
shall be made against the Company unless there shall
have occurred a default in payment under the
Government Obligations deposited to provide for such
payment on the Securities of such series. The Company
hereby agrees to reimburse and indemnify the Trustee
for any costs or expenses thereafter reasonably and
properly incurred by the Trustee in connection with
this Indenture or the Securities following discharge
of this Indenture pursuant to Section 607(3) hereof
with respect to Securities of any series as herein
provided. As used in paragraph (B) of this Section,
the term "Government Obligations" shall mean direct
obligations of, or obligations the timely payment of
the principal of and the interest on which are
unconditionally guaranteed by, the United States of
America and which are not, by their terms, callable.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph
of Section 1003, all money deposited with the Trustee
pursuant to Sections 401 or 402 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 the payment of which such money has been
deposited with the Trustee.
SECTION 403. Covenant Defeasance of Securities of Any
Series.
If this Section 403 is specified as contemplated
by Section 301 to be applicable to the Securities of
any series, then the Company shall cease to be under
any obligation to comply with any term, provision or
condition of any covenant specified as contemplated by
Section 301 with respect to Securities of any series
at any time after the applicable conditions set forth
below have been satisfied:
(1)(a) the Company shall have
deposited or caused to be deposited
irrevocably with the Trustee as trust funds
in trust, specifically pledged as security
for, and dedicated solely to, the benefit of
the Holders of the Securities of such series
(i) money in the currency in which such
Securities are payable in an amount, or (ii)
U.S. Government Securities which through the
payment of interest and principal in respect
thereof in accordance with their terms will
provide, not later than one day before the
due date of any payment, money in the
currency in which such Securities are
payable in an amount, or (iii) a combination
of (i) and (ii), sufficient, in the opinion
of a nationally recognized firm of
independent public accountants expressed in
a written certification thereof delivered to
the Trustee, to pay and discharge each
installment of principal (including
mandatory sinking fund payments) of, and
premium (not relating to optional
redemption), if any, and interest on, the
Outstanding Securities of such series on the
dates such installments of principal of, and
premium (not relating to optional
redemption), if any, or interest are due; or
(b) the Company has properly fulfilled
such other means of defeasance as is
specified to be applicable to the Securities
of such series;
(2) the Company has paid or caused to be
paid all other sums payable with respect to the
Securities of such series at the time
outstanding;
(3) such deposit will not result in a
breach or violation of, or constitute a default
under, this Indenture or any other agreement or
instrument to which the Company is a party or by
which it is bound;
(4) no Event of Default or event which,
after notice or lapse of time or both, would
become an Event of Default shall have occurred
and be continuing on the date of such deposit;
(5) the Company has delivered to the
Trustee an Opinion of Counsel to the effect that
the trust resulting from the deposit, defeasance
and discharge under this Section 404 will not
constitute, or is qualified as, a regulated
investment company under the Investment Company
Act of 1940; and
(6) the Company has delivered to the
Trustee an Officer's Certificate and an Opinion
of Counsel each stating that all conditions
precedent herein provided for relating to the
defeasance of the covenants referred to in this
Section 403 with respect to Securities of any
such series at the time outstanding have been
complied with.
Notwithstanding the discharge and defeasance of any
term, provision or condition of any covenant specified
as contemplated by Section 301 with respect to
Securities of any series at the time outstanding, all
other obligations of the Company in this Indenture
including, without limitation, the Company's primary
liability for the payment of the principal (including
mandatory sinking fund payments) of, and premium, if
any, and interest on all Securities of such series
shall survive until the payment of all such principal,
premium, if any, and interest has been made.
SECTION 404. Reinstatement.
If the Trustee is unable to apply any money or
U.S. Government Securities in accordance with Section
403 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental
authority enjoining, restraining or otherwise
prohibiting such application, the Company's
obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit
had occurred pursuant to Section 403 until such time
as the Trustee is permitted to apply all such money or
U.S. Government Securities in accordance with Section
403.
ARTICLE V
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 occasioned by
the provisions of Article XIV or otherwise whether it
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), unless
such event is either inapplicable to a particular
series or it is specifically deleted or modified in or
pursuant to the Board Resolution or supplemental
indenture authorizing that series:
(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
(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 and as due by the terms of a
Security of that series; or
(4) default in the performance, or breach,
of any covenant, agreement or warranty of the
Company in this Indenture (other than a covenant,
agreement or warranty a default in the
performance of which or the breach of which is
elsewhere in this Section specifically dealt with
or which has expressly been included in this
Indenture solely for the benefit of 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) the entry by a court having
jurisdiction in the premises of (A) a decree or
order for relief in respect of the Company in an
involuntary case or proceeding under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law
or (B) a decree or order adjudging the Company
bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization,
arrangement, adjustment or composition of or in
respect of the Company under any applicable
Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the
Company or of any substantial part of the
property of the Company, or ordering the winding
up or liquidation of the affairs of the Company,
and the continuance of any such decree or order
for relief or any such other decree or order
unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the
consent by the Company to the entry of a decree
or order for relief in an involuntary case or
proceeding under any such law or to the
commencement of any bankruptcy or insolvency case
or proceeding against the Company, or the consent
by the Company to the appointment of or taking
possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar
official of the Company or of any substantial
part of the property of the Company, or the
making by the Company of an assignment for the
benefit of creditors, or the failure by the
Company generally to pay debts as they become
due, or the taking of corporate action by the
Company in furtherance of any such action; or
(7) any other Event of Default provided
with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to
Outstanding Securities of any series at the time
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 the
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
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.
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 its
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.
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 or mandatory sinking fund payment on any
Security when such interest or mandatory sinking
fund payment becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment (other
than mandatory sinking fund payment) of the
principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities,
the whole amount then due and payable on such
Securities for principal (and 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
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel
except compensation or advances arising or expenses or
liabilities incurred as a result of the Trustee's
negligence or bad faith.
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 of 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,
liquidation proceedings, any voluntary or involuntary
case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization, or other
similar law 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, to take any and all actions authorized
under the Trust Indenture Act in order to have claims
of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be
authorized 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 its 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 provision for the payment of
the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and its
counsel, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has
been recovered.
SECTION 506. Application of Money Collected.
Subject to Article XIV, 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;
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, 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;
and
THIRD: To the payment of any surplus then
remaining to the Company, its successors or
assigns or to whomsoever may be lawfully entitled
to receive the same.
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 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, if such Security is convertible
pursuant to Article XIII hereof, to convert such
Security in accordance therewith and to institute suit
for the enforcement of any such payment, and such
rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and
in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the
Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost
or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The
assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or
remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
SECTION 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.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the
Securities of such series waive any past default
hereunder with respect to such series and its
consequences, except a default:
(1) in the payment of the principal of (or
premium, if any) or interest on any Security of
such series, or
(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,
provided, however, that (subject to the provisions of
Section 601) the Trustee shall have the right to
decline to follow any such direction if the Trustee
shall determine upon advice of counsel that the action
or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors
or trustees, executive committee, or a trust committee
of directors or trustees and/or Responsible Officers
shall determine that the action or proceeding so
directed would involve the Trustee in personal
liability. The Trustee may take any other action
deemed proper by the Trustee not inconsistent with
such direction.
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 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
assess costs against any such party litigant, in the
manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor
the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make
such an assessment in any suit instituted by the
Company.
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 VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, 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. Whether or not therein
expressly so provided, every provision of this
Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to
Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such
default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of
any default of the character specified in Section
501(4) with respect to Securities of such series, no
such notice to Holders shall be given until at least
60 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:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document believed by it to be genuine and to have
been signed or presented by the proper party or
parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, and any
resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to
taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel
and the written advice of such counsel or any
Opinion of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no
obligation to exercise any of the rights or
powers vested in it by this Indenture at the
request or direction of any of the Holders
pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make
any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may
make such further inquiry or investigation into
such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to
examine the books, records and premises of the
Company personally or by agent or attorney; and
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents
or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on
the part of any agent or attorney appointed with
due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities, except the Trustee's certificates of
authentication shall be taken as the statements of the
Company and the Trustee or any Authenticating Agent
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 or any Authenticating Agent 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 Authenticating Agent, 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, Authenticating Agent, 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.
So long as no Event of Default shall have occurred and
be continuing, all interest allowed on any such moneys
shall be paid from time to time upon the written order
of the Company, signed by its President, any Vice
President, its Treasurer or an Assistant Treasurer.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered
by it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of 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 its
counsel), except any such expense, disbursement
or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee 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 acceptance or administration of the trust or
trusts hereunder, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or
performance of any of its powers or duties
hereunder.
The obligations of the Company under this Section
607 to compensate the Trustee and to pay or reimburse
the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and
shall survive satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a
senior claim on, and secured by a lien prior to that
of the Securities upon, all property and funds held or
collected by the Trustee as such, except funds held in
trust for the benefit of the holders of particular
Securities and the Securities are hereby subordinated
to each senior claim.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest
or resign, to the extent and in the manner provided
by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be a Person that is eligible pursuant to
the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000.
If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of a
supervising or examining authority, then for the
purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published. 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.
(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance
with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by
giving written notice thereof to the Company. Upon
receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written
instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to
the successor trustee. If the instrument of
acceptance by a successor Trustee required by Section
611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of
such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 608 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 609 and shall fail to resign after
written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of
acting or an order for relief or similar decree
shall be entered in respect of the Trustee under
any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law
or a receiver, custodian, liquidator, assignee,
trustee, sequestrator or other similar official
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.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with
respect to the 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 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.
(f) 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.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and
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 to such successor Trustee all
the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered
by any other such Trustee; and upon execution and
delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and
each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or
those series to which the appointment of such
successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible
under this Article.
Upon acceptance of appointment by a successor
trustee as provided in this Section 611, the Company
shall mail notice of the succession of such trustee
hereunder to the Holders of Securities at their
addresses as they shall appear on the Security
Register. If the Company fails to mail such notice
within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause
such notice to be mailed at the expense of the
Company.
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.
If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon the
Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such
other obligor) to the extent applicable.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain
Outstanding the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such
series issued upon original issue, exchange,
registration of transfer, partial conversion, or
partial redemption thereof or pursuant to Section 306,
and original issue Securities so authenticated shall
be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the
authentication and delivery of Securities by the
Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to
include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a 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 of America, any
State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than
$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.
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
substantially all the 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 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 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 written notice of such appointment by first-class
mail, postage prepaid, to all Holders of Securities of
the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like 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.
If an appointment with respect to one or more
series is made pursuant to this Section, the
Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of
authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
CHEMICAL BANK,
as Trustee
By: [_____________________]
As Authenticating Agent
By: _______________________
Authorized Officer
SECTION 615. Maintenance of Agency by Trustee.
The Trustee will maintain in The City of New York
(a) an office or a Paying Agent acceptable to the
Company where Securities may be presented or
surrendered for payment of principal and premium and
interest, if any, with respect thereto and (b) an
office or Authenticating Agent where Securities may be
surrendered for registration of transfer or exchange.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Names and Addresses of Holders.
The Company agrees that it will furnish or cause
to be furnished to the Trustee:
(a) semi-annually, not later than 15 days
after each Regular Record Date for the Securities
of any series (and on dates as specified as
contemplated by Section 301 for any series of
Original Issue Discount Securities which by their
terms bear interest only after maturity), a list,
in such form as the Trustee may reasonably
require, of the names and addresses of the
Holders of the Securities of such series as of
each such Regular Record Date (and as of dates as
specified as contemplated by Section 301 of this
Indenture), and
(b) at such other times as the Trustee may
request in writing, within 30 days after the
receipt by the Company of any such request, a
list of similar form and content as of a date not
more than 15 days prior to the time such list is
furnished;
excluding from any such list names and addresses
received by the Trustee in its capacity as Security
Registrar; provided, that if the Trustee and the
Security Registrar are the same person or entity, this
Section 701 shall be inapplicable.
SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list
furnished to the Trustee as provided in Section 701
and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of the Holders to communicate
with other Holders with respect to their rights under
this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) 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 any disclosure of information as to names
and addresses of Holders made pursuant to the Trust
Indenture Act and that the Trustee shall not be held
accountable by reason of mailing any material pursuant
to a request made under the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) On or about July 15 of each year commencing
after the issuance of any Securities under this
Indenture, the Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(b) 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 notify the Trustee when
any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information,
documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such
information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 shall be filed
with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 801. Company May Consolidate, etc., on
Certain Terms.
Subject to the provisions of Section 802, nothing
contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger
of the Company with or into any other corporation or
corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in
which the Company or its successor or successors shall
be a party or parties, or shall prevent any sale,
conveyance or lease of all or substantially all of the
property of the Company to any other corporation
(whether or not affiliated with the Company)
authorized to acquire and operate the same; provided,
however, and the Company hereby covenants and agrees,
that any such consolidation, merger, sale, conveyance
or lease shall be upon the condition that (a)
immediately after such consolidation, merger, sale,
conveyance or lease the corporation (whether the
Company or such other corporation) formed by or
surviving any such consolidation or merger, or to
which such sale, conveyance or lease shall have been
made, shall not be in default in the performance or
observance of any of the terms, covenants and
conditions of this Indenture to be kept or performed
by the Company; (b) the corporation (if other than the
Company) formed by or surviving any such consolidation
or merger, or to which such sale, conveyance or lease
shall have been made, shall be a corporation organized
under the laws of the United States of America or any
state thereof, and (c) the due and punctual payment of
the principal of and premium, if any, and interest on
all of the Securities, according to their tenor, and
the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to
be performed or observed by the Company, shall be
expressly assumed, by supplemental indenture
satisfactory in form to the Trustee executed and
delivered to the Trustee, by the corporation (if other
than the Company) formed by such consolidation, or
into which the Company shall have been merged, or by
the corporation which shall have acquired or leased
such property.
SECTION 802. Successor Corporation to Be Substituted.
In case of any such consolidation, merger, sale,
conveyance or lease and upon the assumption by the
successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and
interest on all of the Securities and the due and
punctual performance and observance of all of the
covenants and conditions of this Indenture to be
performed or observed by the Company, such successor
corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been
named herein as the Company herein and thereafter the
predecessor corporation shall be relieved of any
further obligation under this Indenture and the
Securities. Such successor corporation thereupon may
cause to be signed, and may issue either in its own
name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to
the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all
the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate
and shall deliver any Securities which previously
shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and
any Securities which such successor corporation
thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank
and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such
Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale,
conveyance or lease such changes in phraseology and
form (but not in substance) may be made in the
Securities thereafter to be issued as may be
appropriate.
SECTION 803. Opinion of Counsel to be Given Trustee.
The Trustee, subject to Sections 601 and 603, may
receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale, conveyance
or lease and any such assumption complies with the
provisions of this Article Eight.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders.
Without the consent of any Holders the Company,
when authorized by 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
Person to the Company and the assumption by any
such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company
for the benefit of the Holders of all or any
series of Securities (and if such covenants are
to be for the benefit of less than all series of
Securities, stating that such covenants are
expressly being included solely for the benefit
of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default
in respect of the Securities of any specific
series or all series; 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 bearer form when and as
such may be lawful, registrable or not
registrable as to principal, and with or without
interest coupons, or if permitted by law, to
provide for the exchangeability of such
Securities of the same series in fully registered
form, or to permit or facilitate the issuance of
Securities in uncertificated form; or
(5) to change or eliminate any of the
provisions of this Indenture, provided that any
such change or elimination shall become effective
only when there is no Security Outstanding of any
series created prior to the execution of such
supplemental indenture which is entitled to the
benefit of such provision; 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 make provision with respect to the
conversion rights, if any, of Holders of
Securities of any series which are convertible in
accordance with Article XIII pursuant to the
requirements of Section 1311; or
(9) to evidence and provide for the
acceptance of appointment hereunder by a
successor Trustee with respect to the Securities
of one or more series and to add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of
Section 611(b); or
(10) 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 not less than
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 Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that
no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the
principal of, or any instalment 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 change any Place of Payment
where, or 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, if the Securities of any series are
convertible in accordance with Article XIII,
adversely affect the right to convert such
Securities as provided therein (except as
permitted by Section 901(8)), or
(2) modify the provisions of this Indenture
with respect to the subordination of the
Securities in a manner adverse to the Holders, or
(3) 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
(4) modify any of the provisions of this
Section, Section 513 or Section 1005, 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
Holders 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 1005, or the deletion of this
proviso, in accordance with the requirements of
Sections 611(b) 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.
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 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 X
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 of that
series and this Indenture. Each instalment of
interest on the Securities may at the Company's option
be paid by mailing checks for such interest payable to
or upon the written order of the person entitled
thereto pursuant to Section 307 hereof to the address
of such person as it appears on the Security Register.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of
Payment for any series of Securities and, if the
Trustee fails to maintain the agencies required
pursuant to Section 615, the Company will also
maintain an office or agency in The City of New York,
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, if applicable, where Securities of
each series that is convertible pursuant to Article
XIII may be surrendered for conversion 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 at
[___________________________] 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, if the Trustee shall fail to maintain
the agencies required pursuant to Section 615, no such
designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or
agency in The City of New York for such purposes. The
Company will give prompt written notice to the Trustee
of any such designation or rescission and of any
change in the location of any such other office or
agency.
The Company hereby designates as a Place of
Payment for each series of Securities the Borough of
Manhattan, The City of New York, and appoints the
Trustee at its Corporate Trust Office in such city as
Paying Agent. The Company may designate other Places
of Payment and other Paying Agents in the form of
Security for any series.
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 for the
benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the
Trustee of its action or failure 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
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.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company in trust for
the payment of the principal of (and premium, if any)
or interest on any 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 any Place
of Payment with respect to such series of Securities,
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. Statement as to Compliance.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year, an
Officers' Certificate, as to each signer thereof, that
(1) view of the activities of the Company
during such year and of its performance under
this Indenture has been made under the signer's
supervision, and
(2) to the best of his knowledge, based on
such review, (a) the Company has fulfilled all
its obligations under this Indenture throughout
such year, or, if there has been a default in the
fulfillment of any such obligations, specifying
each such default known to him and the nature and
status thereof, and (b) no event has occurred and
is continuing which is, or after notice or lapse
of time or both would become, an Event of
Default, or, if such an event has occurred and is
continuing, specifying each such event known to
him and the nature and status thereof.
SECTION 1005. Waiver of Certain Covenants.
The Company may omit in any particular instance
to comply with any term, provision or condition of any
covenant provided with respect to the Securities of
any series as specified as contemplated by Section 301
(unless otherwise provided by the terms of such
series), if before the time for such compliance the
Holders of at least 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.
ARTICLE XI
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 60 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 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 less than all the Securities of any series are
to be redeemed, the particular Securities to be
redeemed shall be selected, not more than 60 days
prior to the Redemption Date, by the Trustee from the
Outstanding Securities of such series not 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 any Security of any series selected for
partial redemption which is convertible in accordance
with Article XIII is converted in part before
termination of the conversion right with respect to
the portion of the Security of that series so
selected, the converted portion of such Security shall
be deemed (so far as may be) to be the portion
selected for redemption. Securities of any series
which is convertible in accordance with Article XIII
which have been converted during a selection of
Securities of a series to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Company in
writing of the 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 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his
address appearing in the Security Register, but
failure to give such notice by mailing in the manner
herein provided to the Holder of any Securities
designated for redemption as a whole or in part, or
defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the
redemption of any other such Securities or portion
thereof.
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) that on the Redemption Date the
Redemption Price will become due and payable upon
each such Security to be redeemed, and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(5) if applicable, the conversion price,
the date on which the right to convert the
principal of the Securities to be redeemed will
terminate and the place or places where such
Securities may be surrendered for conversion,
(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 on, all the Securities which are to be
redeemed on that date.
If any Security called for redemption is
converted, any money deposited with the Trustee or
with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall
(subject to any right of the Holder of such Security
or any Predecessor Security to receive interest as
provided in the last paragraph of Section 307) be paid
to the Company upon Company Request or, if then held
by the Company, shall be discharged from such trust.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on
the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after
such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in
accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as
contemplated by Section 301, instalments 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 305.
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 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
(pursuant to the provisions of this Article or Article
Twelve) 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 attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such
Security without service charge, a new Security or
Securities of the same series, of any authorized
denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE XII
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 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 Securities
of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities.
The Company (1) may deliver to the Trustee
Outstanding Securities of a series (other than any
previously called for redemption) theretofore acquired
by the Company and (2) receive credit for Securities
of a series which have been previously delivered to
the Trustee by the Company and Securities of such
series which have been converted pursuant to Article
XIII or 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 (which Securities will, if not previously
delivered, accompany such Officers' Certificate), and
stating whether the Company intends to exercise its
right, if any, to make a permitted optional sinking
fund payment with respect to such series. Not less
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.
ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 1301. Applicability; Conversion Privilege and
Conversion Price.
Securities of any series which are convertible
into Common Stock of the Company shall be convertible
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.
Subject to and upon compliance with the
provisions of this Article, at the option of the
Holder thereof, any Security of any series or any
portion of the principal amount thereof which is
$1,000 or an integral multiple of $1,000 may be
converted at the principal amount thereof, or of such
portion thereof, into fully paid and nonassessable
shares (calculated as to each conversion to the
nearest one-hundredth of a share) of Common Stock of
the Company, at the Conversion Price, determined as
hereinafter provided, in effect at the time of
conversion. Such conversion right shall expire at the
close of business on the date specified for Securities
of such series. In case a Security or portion thereof
is called for redemption, such conversion right in
respect of the Security or portions so called shall
expire at the close of business on the Redemption
Date, unless the Company defaults in making the
payment due upon redemption.
The price at which shares of Common Stock shall
be delivered upon conversion (herein called the
"Conversion Price") shall be the price specified in
relation to Securities of such series pursuant to
Section 301. The Conversion Price shall be adjusted
in certain instances as provided in paragraphs (1),
(2), (3), (4) and (7) of Section 1304.
SECTION 1302. Exercise of Conversion Privilege.
In order to exercise the conversion privilege,
the Holder of any Security to be converted shall
surrender such Security, together with the conversion
notice duly executed, at any office or agency of the
Company maintained for that purpose pursuant to
Section 1002, accompanied by written notice to the
Company at such office or agency that the Holder
elects to convert such Security or, if less than the
entire principal amount thereof is to be converted,
the portion thereof to be converted. Securities or
portions thereof surrendered for conversion during the
period from the close of business on any Regular
Record Date next preceding any Interest Payment Date
to the opening of business on such Interest Payment
Date shall (unless such Securities or portions thereof
have been called for redemption on a Redemption Date
within such period) be accompanied by payment to the
Company or its order, in New York Clearing House funds
or other funds acceptable to the Company, of an amount
equal to the interest payable on such Interest Payment
Date on the principal amount of Securities or portions
thereof being surrendered for conversion. No payment
or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities
surrendered for conversion or, except as provided in
Section 1304, on account of any dividends on the
Common Stock issued upon conversion.
Securities shall be deemed to have been converted
immediately prior to the close of business on the day
of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such
time the rights of the Holders of such Securities as
Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the
record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the
conversion date, the Company shall issue and shall
deliver at such office or agency a certificate or
certificates for the number of full shares of Common
Stock issuable upon conversion, together with payment
in lieu of any fraction of a share, as provided in
Section 1303.
In the case of any Security which is converted in
part only, upon such conversion the Company shall
execute and the Trustee shall authenticate and deliver
to the Holder thereof, at the expense of the Company,
a new Security or Securities of authorized
denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of
such Security.
SECTION 1303. Fractions of Shares.
No fractional shares of Common Stock shall be
issued upon conversion of Securities. If more than
one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares
which shall be issuable upon conversion thereof shall
be computed on the basis of the aggregate principal
amount of the Securities (or specified portions
thereof) so surrendered. Instead of any fractional
share of Common Stock which would otherwise be
issuable upon conversion of any Security or Securities
(or specified portions thereof), the Company shall pay
a cash adjustment in respect of such fractions in an
amount equal to the same fraction of the market price
(determined as provided in the last sentence of
paragraph (6) of Section 1304) at the close of
business on the day of conversion.
SECTION 1304. Adjustment of Conversion Price.
(1) In case the Company shall pay or
make a dividend or other distribution on any
class of capital stock of the Company in
Common Stock, the Conversion Price in effect
at the opening of business on the day
following the date fixed for the
determination of stockholders entitled to
receive such dividend or other distribution
shall be reduced by multiplying such
Conversion Price by a fraction of which the
numerator shall be the number of shares of
Common Stock outstanding at the close of
business on the date fixed for such
determination and the denominator shall be
the sum of such number of shares and the
total number of shares constituting such
dividend or other distribution, such
reduction to become effective immediately
after the opening of business on the day
following the date fixed for such
determination. For the purposes of this
paragraph (1), the number of shares of
Common Stock at any time outstanding shall
not include shares held in the treasury of
the Company but shall include shares
issuable in respect of scrip certificates
issued in lieu of fractions of shares of
Common Stock. The Company will not pay any
dividend or make any distribution on shares
of Common Stock held in the treasury of the
Company.
(2) In case the Company shall issue
rights or warrants to all holders of its
Common Stock entitling them to subscribe for
or purchase shares of Common Stock at a
price per share less than the current market
price per share (determined as provided in
paragraph (6) of this Section) of the Common
Stock on the date fixed for the
determination of stockholders entitled to
receive such rights or warrants, the
Conversion Price in effect at the opening of
business on the day following the date fixed
for such determination shall be reduced by
multiplying such Conversion Price by a
fraction of which the numerator shall be the
number of shares of Common Stock outstanding
at the close of business on the date fixed
for such determination plus the number of
shares of Common Stock which the aggregate
of the offering price of the total number of
shares of Common Stock so offered for
subscription or purchase would purchase at
such market price and the denominator shall
be the number of shares of Common Stock
outstanding at the close of business on the
date fixed for such determination plus the
number of shares of Common Stock so offered
for subscription or purchase, such reduction
to become effective immediately after the
opening of business on the day following the
date fixed for such determination. For the
purposes of this paragraph (2), the number
of shares of Common Stock at any time
outstanding shall not include shares held in
the treasury of the Company but shall
include shares issuable in respect of such
certificates issued in lieu of fractions of
shares of Common Stock. The Company will
not issue any rights or warrants in respect
of shares of Common Stock held in the
treasury of the Company.
(3) In case outstanding shares of
Common Stock shall be subdivided into a
greater number of shares of Common Stock,
the Conversion Price in effect at the
opening of business on the day following the
day upon which such subdivision becomes
effective shall be proportionately reduced,
and, conversely, in case outstanding shares
of Common Stock shall each be combined into
a smaller number of shares of Common Stock,
the Conversion Price in effect at the
opening of business on the day following the
day upon which such combination becomes
effective shall be proportionately
increased, such reduction or increase, as
the case may be, to become effective
immediately after the opening of business on
the day following the day upon which such
subdivision or combination become effective.
(4) In case the Company shall, by
dividend or otherwise, distribute to all
holders of its Common Stock evidences of its
indebtedness or assets (including
securities, but excluding any rights or
warrants referred to in paragraph (2) of
this Section, any dividend or distribution
paid in cash out of the retained earnings of
the Company and any dividend or distribution
referred to in paragraph (1) of this
Section), the Conversion Price shall be
adjusted so that the same shall equal the
price determined by multiplying the
Conversion Price in effect immediately prior
to the close of business on the date fixed
for the determination of stockholders
entitled to receive such distribution by a
fraction of which the numerator shall be the
current market price per share (determined
as provided in paragraph (6) of this
Section) of the Common Stock on the date
fixed for such determination, reduced by the
then fair market value (as determined by the
Board of Directors, whose determination
shall be conclusive and described in a Board
Resolution filed with the Trustee) of the
portion of the assets or evidences of
indebtedness so distributed applicable to
one share of Common Stock and the
denominator shall be such market price per
share of the Common Stock, such adjustment
to become effective immediately prior to the
opening of business on the day following the
date fixed for the determination of
stockholders entitled to receive such
distribution.
(5) The reclassification of Common
Stock into securities including other than
Common Stock (other than any
reclassification upon a consolidation or
merger to which Section 1311 applies) shall
be deemed to involve (a) a distribution of
such securities other than Common Stock to
all holders of Common Stock (and the
effective date of such reclassification
shall be deemed to be "the date fixed for
the determination of stockholders entitled
to receive such distribution" and "the date
fixed for such determination") within the
meaning of paragraph (4) of this Section,
and (b) a subdivision or combination, as the
case may be, of the number of shares of
Common Stock outstanding immediately prior
to such reclassification into the number of
shares of Common Stock outstanding
immediately thereafter (and the effective
date of such reclassification shall be
deemed to be "the day upon which such
subdivision becomes effective" or "the day
upon which such combination becomes
effective," as the case may be, and "the day
upon which such subdivision or combination
becomes effective" within the meaning of
paragraph (3) of this Section).
(6) For the purpose of any computation
under paragraph (2) and (4) of this Section,
the current market price per share on any
date shall be deemed to be the average of
the daily closing prices for the ten
consecutive Business Days selected by the
Company commencing not less than 30 nor more
than 45 Business Days before the day in
question. The closing price for each day
shall be the last reported sales price
regular way on the composite tape or, in
case no such reported sale takes place on
such day, the average of the reported
closing bid and asked prices regular way, in
either case on the New York Stock Exchange
or, if the Common Stock is not listed or
admitted to trading on such Exchange, on the
principal national securities exchange on
which the Common Stock is listed or admitted
to trading or, if not listed or admitted to
trading on any national securities exchange,
the average of the closing bid and asked
prices as furnished by any New York Exchange
member firm selected from time to time by
the Company for that purpose.
(7) No adjustment in the Conversion
Price shall be required unless such
adjustment would require an increase or
decrease of at least 1%; provided, however,
that any adjustments which by reason of this
clause (7) are not required to be made shall
be carried forward and taken into account in
any subsequent adjustment. All calculations
under this Article XIII shall be made to the
nearest cent or to the nearest one-hundredth
of a share, as the case may be. The Company
may make such reductions in the Conversion
Price, in addition to those required by
paragraphs (1), (2), (3) and (4) of this
Section, as it considers to be advisable in
order that any event treated for Federal
income tax purposes as a dividend of stock
or stock rights shall not be taxable to the
recipients.
(8) The Trustee has no duty to
determine when or how an adjustment under
this Article should be made or the amount of
any such adjustment. The Trustee has no
duty to determine whether a supplemental
indenture under Section 1311 need be entered
into or whether any provisions of any
supplemental indenture are correct. The
Trustee shall not be accountable for and
makes no representation as to the validity
or value of any securities or assets issued
upon conversion of Securities. The Trustee
shall not be responsible for the Company's
failure to comply with this Article.
SECTION 1305. Notice of Adjustments of Conversion
Price.
Whenever the Conversion Price is adjusted as
herein provided:
(a) the Company shall compute the adjusted
Conversion Price in accordance with Section 1304
and shall prepare a certificate signed by the
Treasurer or an Assistant Treasurer of the
Company setting forth the adjusted Conversion
Price and showing in reasonable detail the facts
upon which such adjustment is based, such
certificate shall forthwith be filed with the
Trustee and at each office or agency maintained
for the purpose of conversion of Securities
pursuant to Section 1002, and such certificate
shall be conclusive evidence of the correctness
of such adjustment; and
(b) a notice stating that the Conversion
Price has been adjusted and setting forth the
adjusted Conversion Price shall forthwith be
required, and as soon as practicable after it is
required, such notice shall be prepared by the
Company, filed with the Trustee and mailed by the
Company to all Holders at their last addresses as
they shall appear in the Security Register.
SECTION 1306. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend
(or any other distribution) on Common Stock
payable otherwise than in cash out of its
retained earnings; or
(b) the Company shall authorize the
granting to the holders of Common Stock of rights
or warrants to subscribe for or purchase any
shares of capital stock of any class or of any
other rights; or
(c) of any reclassification of the Common
Stock of the Company (other than a subdivision or
combination of its outstanding shares of Common
Stock), or of any consolidation or merger to
which the Company is a party and for which
approval of any stockholders of the Company is
required, or of the sale or transfer of all or
substantially all of the assets of the Company;
or
(d) of the voluntary or involuntary
dissolution, liquidation or winding up of the
Company;
then the Company shall cause to be filed with the
Trustee and at each office or agency maintained for
the purpose of conversion of Securities pursuant to
Section 1002, and shall cause to be mailed to all
Holders at their last addresses as they shall appear
in the Security Register, at least 15 days (or ten
days in any case specified in clause (a) or (b) above)
prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date
on which a record is to be taken for the purpose of
such dividend, distribution, rights or warrants, or,
if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled
to such dividend, distribution, rights or warrants are
to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale,
transfer dissolution, liquidation or winding up is
expected to become effective, and the date as of which
it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common
Stock for securities, cash or other property
deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or
winding up. The failure to give notice required by
this Section or any defect therein shall not affect
the legality or validity of any dividend,
distribution, rights, warrants, reclassification,
consolidation, merger, sale, transfer, dissolution,
liquidation or winding up, or the vote on any such
action.
SECTION 1307. Company to Reserve Common Stock.
The Company shall at all times reserve and keep
available, free from preemptive rights, out of its
authorized but unissued Common Stock, for the purpose
of effecting the conversion of Securities, the full
number of shares of Common Stock then issuable upon
the conversion of all outstanding Securities.
SECTION 1308. Taxes on Conversion.
The Company will pay any and all transfer taxes
that may be payable in respect of the issue or
delivery of shares of Common Stock on conversion of
Securities pursuant thereto. The Company shall not,
however, be required to pay any tax which may be
payable in respect of any transfer involved in the
issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or
Securities to be converted, and no such issue or
delivery shall be made unless and until the Person
requesting such issue has paid to the Company the
amount of any such tax, or has established to the
satisfaction of the Company that such tax has been
paid.
SECTION 1309. Covenant as to Common Stock.
The Company covenants that all shares of Common
Stock which may be issued upon conversion of
Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 1308,
the Company will pay all taxes, liens and charges with
respect to the issue thereof.
SECTION 1310. Cancellation of Converted Securities.
All Securities delivered for conversion shall be
delivered to the Trustee for cancellation and the
Trustee shall dispose of the same as provided in
Section 309.
SECTION 1311. Provisions in Case of Consolidation,
Merger or Sale of Assets.
In case of any consolidation of the Company with,
or merger of the Company into, any other corporation
or corporations, any merger of another corporation
into the Company (other than a merger which does not
result in any reclassification, conversion, exchange
or cancellation of outstanding shares of Common Stock
of the Company) or any sale or transfer of all or
substantially all of the assets of the Company, the
corporation or corporations formed by such
consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall
execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security
then outstanding shall have the right thereafter,
during the period such Security shall be convertible
as specified in Section 1301, to convert such Security
only into the kind and amount of securities, cash and
other property receivable upon such consolidation,
merger, sale or transfer by a holder of the number of
shares of Common Stock of the Company into which such
Security might have been converted immediately prior
to such consolidation, merger, sale or transfer,
assuming such holder of Common Stock of the Company
(i) is not a corporation with which the Company
consolidated or into which the Company merged or which
merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent
corporation"), or an Affiliate of a constituent
corporation and (ii) failed to exercise its rights of
election, if any, as to the kind or amount of
securities, cash and other property receivable upon
such consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and
other property receivable upon such consolidation,
merger, sale or transfer is not the same for each
share of Common Stock of the Company held immediately
prior to such consolidation, merger, sale or transfer
by others than a constituent corporation or an
Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-
electing share"), then for the purpose of this Section
the kind and amount of securities, cash and other
property receivable upon such consolidation, merger,
sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares).
Such supplemental indenture shall provide for
adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall
be as nearly equivalent as may be practicable to the
adjustments provided for in this Article. The above
provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or
transfers.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinate to Senior
Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by their acceptance
thereof, likewise covenants and agrees, that the
payment of the principal of and premium and interest,
if any, on each and all of the Securities is hereby
expressly subordinated, to the extent and in the
manner set forth in this Article, in right of payment
to the prior payment in full of all Senior
Indebtedness.
Each Holder of the Securities of each series by
his acceptance thereof authorizes and directs the
Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the
subordination as provided in this Article, and
appoints the Trustee its attorney-in-fact for any and
all such purposes.
SECTION 1402. Payment Over of Proceeds of Securities
on Dissolution, etc.
Upon any distribution of assets or securities of
the Company in connection with any dissolution,
winding up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the
benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise),
the holders of all Senior Indebtedness shall first be
entitled to receive payment in full in accordance with
the terms of such Senior Indebtedness of the principal
therefor and premium, if any, and the interest due
thereon before the Holders of the Securities of any
series are entitled to receive any payment or
distribution upon the principal, premium and interest,
if any, on the Securities or sinking fund payment;
and, upon any such dissolution, winding up,
liquidation or reorganization, any payment or
distribution of any kind or character, whether in
cash, property or securities of the Company (other
than shares of stock of the Company as reorganized or
readjusted or securities of the Company or any other
corporation provided for by a plan of reorganization
or readjustment, the payment of which is subordinated
to the payment of all Senior Indebtedness, at least to
the extent provided in this Article, which may at the
time be outstanding and which are provided for by a
plan of reorganization or readjustment which does not
alter the rights of the holders of Senior Indebtedness
at the time outstanding and under which such other
corporation, if any, assumes all Senior Indebtedness
at the time outstanding), to which the Holders of the
Securities or the Trustee would be entitled except for
the provisions of this Article, including any such
payment or distribution which may be payable or
deliverable by reason of the payment of any other
indebtedness of the Company being subordinated to the
payment of the Securities, shall be made by the
liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of Senior
Indebtedness or their representative or
representatives or to the trustee or trustees under
any indenture under which any instruments evidencing
any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining
unpaid on account of the principal of (and premium, if
any) and interest on the Senior Indebtedness held or
represented by each, to the extent necessary to pay in
full all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or
distribution or provision therefor to the holders of
Senior Indebtedness.
In the event that, notwithstanding the foregoing,
upon any such dissolution, winding up, liquidation or
reorganization, any payment or distribution of any
kind or character, whether in cash, property or
securities of the Company (other than shares of stock
of the Company as reorganized or readjusted or
securities of the Company or any other corporation
provided for by a plan of reorganization or
readjustment, the payment of which is subordinated to
the payment of all Senior Indebtedness, at least to
the extent provided by this Article, which may at the
time be outstanding and which are provided for by a
plan of reorganization or readjustment which does not
alter the rights of the holders of Senior Indebtedness
at the time outstanding and under which such other
corporation, if any, assumes all Senior Indebtedness
at the time outstanding), including any such payment
or distribution which may be payable or deliverable by
reason of the payment of any indebtedness of the
Company, if any, subordinated to the payment of the
Securities, shall be received by the Trustee or the
Holders of the Securities before all Senior
Indebtedness is paid in full, such payment or
distribution shall be paid over to the holders of such
Senior Indebtedness or their representative or
representatives or to the trustee or trustees under
any indenture under which any instruments evidencing
any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the payment
of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full,
after giving effect to any concurrent payment or
distribution or provision therefor to the holders of
Senior Indebtedness.
Subject to the payment in full of all Senior
Indebtedness, the Holders of the Securities shall be
subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable
to the holders of the Senior Indebtedness until all
amounts owing on the Securities shall be paid in full,
and none of the payments or distributions to the
holders of the Senior Indebtedness to which the
Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article or
of payments over, pursuant to the provisions of this
Article, to the holders of the Senior Indebtedness by
the Holders of the Securities or the Trustee shall, as
between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment by the Company
to or on account of Senior Indebtedness, it being
understood that the provisions of this Article are and
are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on
the one hand, and the holders of the Senior
Indebtedness, on the other hand, and nothing contained
in this Article or elsewhere in this Indenture or in
the Securities of any series is intended to or shall
impair, as between the Company, its creditors other
than the holders of Senior Indebtedness, and the
Holders of the Securities, the obligation of the
Company, which is unconditional and absolute, to pay
to the Holders of the Securities the principal of and
premium and interest, if any (including interest
accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the
Company under any applicable bankruptcy, insolvency or
similar law now or hereafter in effect), on the
Securities as and when the same shall become due and
payable in accordance with their terms, or to affect
the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of
the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or the Holder of any
Security of any series from exercising all remedies
otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any,
under this Article, of the holders of Senior
Indebtedness in respect of cash, property or
securities of the Company received upon the exercise
of any such remedy.
The Company shall give prompt written notice to
the Trustee of any dissolution, winding up,
liquidation or reorganization of the Company within
the meaning of this Article. The Trustee, subject to
the provisions of Section 601, shall be entitled to
assume that no such event has occurred and shall not
be charged with knowledge of the existence of any
facts which would prohibit the making of any payment
of moneys to or by the Trustee or the taking of any
other action by the Trustee, unless the Company or any
one or more holders of Senior Indebtedness of the
Company or any trustee therefor (who shall have been
certified or otherwise established to the satisfaction
of the Trustee to be such a holder or trustee) has
given written notice thereof to an officer in the
Corporate Trust Department of the Trustee at its
Corporate Trust Office.
Upon any distribution of assets or securities of
the Company referred to in this Article, the Trustee
and the Holders of the Securities shall be entitled to
rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending
for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of
the Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon, and all
other facts pertinent thereto or to this Article, and
the Trustee, subject to the provisions of Article V
hereof, and the Holders of the Securities shall be
entitled to rely upon a certificate of the liquidating
trustee or agent or other person making any
distribution to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons
entitled to participate in such distribution, the
holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent
thereto or to this Article. In the event that the
Trustee determines, in good faith, that further
evidence is required, with respect to the right of any
person as a holder of Senior Indebtedness, to
participate in any payment or distribution pursuant to
this Section 1402, the Trustee may request such person
to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness
held by such person, as to the extent to which such
person is entitled to participation in such payment or
distribution, and as to other facts pertinent to the
rights of such person under this Section 1402, and if
such evidence is not furnished, the Trustee may defer
any payment to such person pending judicial
determination as to the right of such person to
receive such payment.
SECTION 1403. Priority of Senior Indebtedness upon
Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or
otherwise, all matured principal of Senior
Indebtedness and interest and premium thereon shall
first be paid in full before any payment of principal
or premium or interest, if any, is made upon the
Securities or before any Securities can be acquired by
the Company or any sinking fund payment is made with
respect to the Securities (except required sinking
fund payments may be reduced by Securities acquired
before such maturity of such Senior Indebtedness).
SECTION 1404. Obligation of Company to Pay Holders of
Securities Not Affected.
Nothing contained in this Article or elsewhere in
this Indenture, or in any of the Securities of any
series, shall affect the obligation of the Company to
make, or prevent the Company from making, payment of
principal of (including any sinking fund payment) or
premium or interest, if any, on the Securities, except
under the conditions described in Section 1402 hereof
or during the pendency of any dissolution, winding up,
liquidation or reorganization proceedings referred to
in Section 1402 or as provided in Section 1403 hereof.
SECTION 1405. Trustee as Holder of Senior
Indebtedness.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same
extent as any holder of Senior Indebtedness. Nothing
in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Article VI
hereof.
SECTION 1406. Notice to Trustee to Effectuate
Subordination.
Notwithstanding the provisions of this Article or
any other provision of the Indenture, the Trustee
shall not be charged with knowledge of the existence
of any facts which would prohibit the making of any
payment of moneys to or by the Trustee unless and
until an officer of the Trustee in its Corporate Trust
Department shall have received written notice thereof
at its Corporate Trust Office from the Company or from
a holder of any Senior Indebtedness or from any
representative or representatives of such holder and,
prior to the receipt of any such written notice, the
Trustee shall be entitled, subject to Section 601, in
all respects to assume that no such facts exist;
provided, that, if prior to the fifth Business Day
preceding the date upon which by the terms hereof any
such moneys may become payable for any purpose, or in
the event of the execution of an instrument pursuant
to Section 401 acknowledging satisfaction and
discharge of this Indenture, then if prior to the
second Business Day preceding the date of such
execution, the Trustee shall not have received with
respect to such moneys the notice provided for in this
Section, then, anything herein contained to the
contrary notwithstanding, the Trustee may, in its
discretion, receive such moneys and/or apply the same
to the purpose for which they were received, and shall
not be affected by any notice to the contrary, which
may be received by it on or after such date; provided,
however, no such application shall affect the
obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1407. Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the
payment of the principal of and premium and interest,
if any, on the Securities, at any time or from time to
time and in their absolute discretion, change the
manner, place or terms of payment, change or extend
the time of payment of, or renew or alter, any Senior
Indebtedness, or amend or supplement any instrument
pursuant to which any Senior Indebtedness is issued,
or exercise or refrain from exercising any other of
their rights under the Senior Indebtedness including,
without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of
the Securities or the Trustee.
SECTION 1408. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as
are specifically set forth in this Indenture, and no
implied covenants or obligations with respect to the
holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness, and shall not be liable to any
such holders if it shall mistakenly pay over or
deliver to the Holders of Securities or the Company or
any other person, money or assets to which any holders
of Senior Indebtedness shall be entitled by virtue of
this Article or otherwise.
SECTION 1409. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the
context shall otherwise require) be construed as
extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as
if such Paying Agent were named in this Article in
addition to or in place of the Trustee, provided,
however, that Sections 1405, 1406 and 1408 shall not
apply to the Company if it acts as Paying Agent.
SECTION 1410. Rights of Holders of Senior
Indebtedness Not Impaired.
No right of any present or future holder of
Senior Indebtedness to enforce the subordination
herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part
of the Company or by any noncompliance by the Company
with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any
such holder may have or be otherwise charged with.
SECTION 1411. All Indenture Provisions Subject to
Subordination Provisions
Notwithstanding anything contained herein to the
contrary, all the provisions of this Indenture shall
be subject to the provisions of this Article, so far
as the same may be applicable thereto.
* * *
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.
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.
Harsco Corporation
By:_______________
[Senior Vice President Finance]
[By:__________________________]
[Title]
Attest:
_____________________________
[Senior Vice President
and Secretary]
Chemical Bank
By:______________________
Name:
Title:
Attest:
______________________________
[Assistant Secretary]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _______, 199_, before me
personally came [________________], to me known, who,
being by me duly sworn, did depose and say that he is
_____________ of HARSCO CORPORATION, one of the
associations described in and which executed the
foregoing instrument; that he knows the seal of said
association; that the seal affixed to said instrument
is such corporate seal of the association; that it was
so affixed by authority of the Board of Directors of
said association, and that he signed his name thereto
by like authority.
______________________________
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _______, 199_, before me
personally came [________________], to me known, who,
being by me duly sworn, did depose and say that he is
_____________ of HARSCO CORPORATION, one of the
associations described in and which executed the
foregoing instrument; that he knows the seal of said
association; that the seal affixed to said instrument
is such corporate seal of the association; that it was
so affixed by authority of the Board of Directors of
said association, and that he signed his name thereto
by like authority.
______________________________
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _______, 199_, before me
personally came [______________], to me known, who,
being by me duly sworn, did depose and say that he is
a ____________ of CHEMICAL BANK, the association
described in and which executed the foregoing
instrument; that he knows the seal of said
association; that the seal affixed to said instrument
is such corporate seal of the association; that it was
so affixed by authority of the Board of Directors of
said association, and that he signed her name thereto
by like authority.
______________________________
Notary Public
Exhibit 4(h)
[Form of Specimen Certificate
Representing Shares of Common Stock]
Number Shares
Common Common
Stock Stock
Incorporated Under the Laws
of the State of Delaware
[HARSCO CORPORATION LOGO]
CUSIP _________
See Reverse for
Certain Definitions
This certifies that _______________ is the owner
of _____ full-paid and non-assessable shares of the
par value of One Dollar and Twenty-Five Cents ($1.25)
each of the Common Stock of Harsco Corporation
transferable on the books of the Company by the holder
hereof, in person or by duly authorized attorney, upon
the surrender of this Certificate properly endorsed.
This Certificate is not valid unless
countersigned by the Transfer Agent and registered by
the Registrar.
Witness, the corporate seal of the Company and
the signatures of its duly authorized officers.
Dated: __________
_________________
[Chairman]
[corporate seal]
_________________
[Secretary]
Countersigned and Registered:
[Transfer Agent and Registrar]
By: __________________________
Authorized Signature
[Form of Reverse of Specimen Certificate
Representing Shares of Common Stock]
HARSCO CORPORATION
The Company will furnish without charge to each
stockholder who so requests, the designations,
preferences and relative, participating, optional or
other special rights of each class of stock or series
thereof of the Company and the qualifications,
limitations or restrictions of such preferences and/or
rights. Such request may be made to the Secretary of
the Company.
The following abbreviations, when used in the
inscription on the face of this certificate, shall be
construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT - ________ Custodian __________
(Cust) (Minor)
under Uniform Gifts to Minors Act ________
(State)
Additional abbreviations may also be used though not
in the above list.
For value received, __________ hereby sell, assign and
transfer
unto
Please Insert Social Security or Other
Identifying Number of Assignee
_________________________________________
__________________________________________________
(Please print or typewrite name and address,
including zip code, of Assignee)
__________________________________________________
__________________________________________________
____________________________________________shares
of the capital stock represented by the within
Certificate, and do hereby irrevocably constitute and
appoint _______________ Attorney to transfer the said
stock on the books of the within named Company with
full power of substitution in the premises.
Dated: __________
________________________________________
NOTICE: The signature to this Assignment must
correspond with the name as written
upon the face of the certificate in
every particular, without alteration or
enlargement or any change whatever.
This certificate also evidences and entitles
the holder hereof to certain Rights as set forth in
the Rights Agreement between Harsco Corporation (the
"Company") and The Chase Manhattan Bank, N.A. (the
"Rights Agent") dated as of September 29, 1987 (the
"Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which
is on file at the principal offices of the Company.
Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced
by this certificate. The Company will mail to the
holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing,
without charge promptly after receipt of a written
request thereof. Under certain circumstances set
forth in the Rights Agreement, Rights issued to, or
held by, any Person who is, was or becomes an
Acquiring Person or any Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement),
whether currently held by or on behalf of such Person
or by any subsequent holder, may become null and void.
Exhibit 4(i)
[Form of Specimen Certificate
Representing Shares of Preferred Stock]
Number Shares
Preferred Preferred
Stock Stock
Incorporated Under the Laws
of the State of Delaware
[HARSCO CORPORATION LOGO]
CUSIP __________
See Reverse for
Certain Definitions
This certifies that _______________ is the owner
of _____ fully-paid and non-assessable shares of
__________ [Preferred Stock], par value of One Dollar
and Twenty-Five Cents ($1.25) of Harsco Corporation
transferable on the books of the Company by the holder
hereof, in person or by duly authorized attorney, upon
surrender of this Certificate properly endorsed.
This Certificate is not valid until countersigned
by the Transfer Agent and registered by the Registrar.
Witness, the corporate seal of the Company and
the signatures of its duly authorized officers.
Dated: __________
______________________
[Chairman]
[corporate seal]
______________________
[Secretary]
Countersigned and Registered:
[Transfer Agent and Registrar]
By: _________________________
Authorized Signature
[Form of Reverse of Specimen Certificate
Representing Shares of Preferred Stock]
HARSCO CORPORATION
The Company will furnish without charge to each
stockholder who so requests, the designations,
preferences and relative, participating, optional or
other special rights of each class of stock or series
thereof of the Company and the qualifications,
limitations or restrictions of such preferences and/or
rights. Such request may be made to the Secretary of
the Company.
The following abbreviations, when used in the
inscription on the face of this certificate, shall be
construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT - __________ Custodian __________
(Cust) (Minor)
under Uniform Gifts to Minors Act ________
(State)
Additional abbreviations may also be used though not
in the above list.
For value received, __________ hereby sell, assign and
transfer unto
Please Insert Social Security or Other
Identifying Number of Assignee
_________________________________________
__________________________________________________
(Please print or typewrite name and address,
including zip code, of Assignee)
__________________________________________________
__________________________________________________
____________________________________________shares
of the preferred stock represented by the within
Certificate, and do hereby irrevocably constitute and
appoint _______________ Attorney to transfer the said
stock on the books of the within named Company with
full power of substitution in the premises.
Dated: __________
_________________________________________
NOTICE: The signature to this Assignment must
correspond with the name as written
upon the face of the certificate in
every particular, without alteration or
enlargement or any change whatever.
Exhibit 4(j)
[FORM OF FACE OF SUBORDINATED DEBT SECURITY]
[If the Security is to be a Book-Entry Debt Security,
insert-- This Security is a Book-Entry Debt Security
within the meaning of the Indenture hereinafter
referred to and is registered in the name of a
Depository or a nominee of a Depository. This
Security is exchangeable for Securities registered in
the name of a person other than the Depository or its
nominee only in the limited circumstances described in
the Indenture, and no transfer of this Security (other
than a transfer of this Security as a whole by the
Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in
such limited circumstances.
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company (55
Water Street, New York, New York) to the issuer or its
agent for registration of transfer, exchange or
payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an
interest herein.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT
SECURITY, INSERT ANY LEGEND REQUIRED BY THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND THE REGULATIONS
THEREUNDER.]
HARSCO CORPORATION
[Insert Designation of Securities and Series]
No. _____ $__________
CUSIP No. __________
Harsco Corporation, a corporation duly organized
and existing under the laws of the State of Delaware
(herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to
pay to ____________________________, or registered
assigns, the principal sum of _______________ on
______________ [If the Security is to bear interest
prior to maturity, insert--, and to pay interest
thereon from __________ or from the most recent
Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on _________ and
___________ in each year, commencing ______________,
at the rate of ___% per annum, until the principal
hereof is paid or made available for payment [If
applicable insert--, and (to the extent that the
payment of such interest shall be legally enforceable)
at the rate of ___% per annum on any overdue principal
and premium and on any overdue installment of
interest]. [The amount of interest payable on any
Interest Payment Date shall be computed on the basis
of a 360-day year of twelve 30-day months.] The
interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall
be the ___________ or ___________ (whether or not a
Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on
a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of
this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the
requirements of any securities exchange on which the
Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to
Maturity, insert-- The principal of this Security
shall not bear interest except in the case of a
default in payment of principal upon acceleration,
upon redemption or at Stated Maturity and in such case
the overdue principal of this Security shall bear
interest at the rate of _____________% per annum (to
the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such
principal has been made or duly provided for.
Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal
that is not so paid on demand shall bear interest at
the rate of ____% per annum (to the extent that
payment of such interest shall be legally
enforceable), which shall accrue from the date of such
demand for payment to the date payment of such
interest has been made or duly provided for, and such
interest shall also be payable on demand.]
Payment of the principal of (and premium, if any)
and [if applicable, insert--any such] interest on this
Security will be made at the office or agency of the
Company maintained for that purpose in ____________,
in [insert the currency or currencies of payment, if
payable in U.S. currency, insert-- such coin or
currency of the United States of America as at the
time of payment is legal tender for payment of public
and private debts] [if applicable, insert--; provided,
however, that at the option of the Company payment of
interest may be made by check mailed to the address of
the Person entitled thereto as such address shall
appear in the Security Register].
Reference is hereby made to the further
provisions of this Security set forth on the reverse
hereof, which further provisions shall for all
purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate
seal.
Dated:
HARSCO CORPORATION
By:_____________________
By:_____________________
[CORPORATE SEAL]
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
CHEMICAL BANK,
as Trustee
By:_____________________
Authorized Officer
[FORM OF REVERSE OF SUBORDINATE DEBT SECURITY]
This Security is one of a duly authorized issue
of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more
series under an Indenture, dated as of __________
(herein called the "Indenture"), between the Company
and Chemical Bank, as Trustee (herein called the
"Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby
made for a statement of the respective rights,
limitations of rights, duties and immunities
thereunder of the Company, the Trustee, the holders of
Senior Indebtedness and the Holders of the Securities
and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security
is one of the series designated on the face hereof [,
limited in aggregate principal amount to $ __________
].
[If the Security is to be convertible, insert--
Subject to and upon compliance with the provisions of
the Indenture, the Holder of this Security is
entitled, at his option, at any time [on or after the
opening of business on _____________, 19__ and] on or
before the close of business on ______________, or in
case this Security or a portion hereof is called for
redemption, then in respect of this Security or such
portion hereof until and including, but (unless the
Company defaults in making the payment due upon
redemption) not after, the close of business on the
Redemption Date, to convert this Security (or any
portion of the principal amount hereof which is $1,000
or an integral multiple thereof), at the principal
amount hereof, or of such portion, into fully paid and
non-assessable shares (calculated as to each
conversion to the nearest 1/100 of a share) of Common
Stock of the Company at [a conversion price equal to
$____________ aggregate principal amount of Securities
for each share of Common Stock -- the rate of
__________ shares of Common Stock for each $1,000
principal amount of Securities] (or at the current
adjusted conversion [price -- rate] if an adjustment
has been made as provided in the Indenture) by
surrender of this Security, duly endorsed or assigned
to the Company or in blank, to the Company at its
office or agency in ________________, accompanied by
written notice to the Company that the Holder hereof
elects to convert this Security, or if less than the
entire principal amount hereof is to be converted, the
portion hereof to be converted, and, in case such
surrender shall be made during the period from the
close of business on any Regular Record Date next
preceding any Interest Payment Date to the opening of
business on such Interest Payment Date (unless this
Security or the portion thereof being converted has
been called for redemption on a Redemption Date within
such period), also accompanied by payment in New York
Clearing House or other funds acceptable to the
Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of
this Security then being converted. Subject to the
aforesaid requirement for payment and, in the case of
a conversion after the Regular Record Date next
preceding any Interest Payment Date and on or before
such Interest Payment Date, to the right of the Holder
of this Security (or any Predecessor Security) of
record at such Regular Record Date to receive an
installment of interest (with certain exceptions
provided in the Indenture), no payment or adjustment
is to be made on conversion for interest accrued
hereon or for dividends on the Common Stock issued on
conversion. No fractions of shares or scrip
representing fractions of shares will be issued on
conversion, but instead of any fractional interest the
Company shall pay a cash adjustment as provided in the
Indenture. The conversion [price -- rate] is subject
to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company
is a party or the transfer of substantially all of the
assets of the Company, the Indenture shall be amended,
without the consent of any Holders of Securities, so
that this Security, if then outstanding, will be
convertible thereafter, during the period this
Security shall be convertible as specified above, only
into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or
transfer by a holder of the number of shares of Common
Stock into which this Security might have been
converted immediately prior to such consolidation,
merger or transfer (assuming such holder of Common
Stock failed to exercise any rights of election and
received per share the kind and amount received per
share by a plurality of non-electing shares) [,
assuming, if such consolidation, merger or transfer is
prior to _____________, that this Security were
convertible at the time of such consolidation, merger
or transfer at the initial conversion [price -- rate]
specified above as adjusted from __________ to such
time pursuant to the Indenture].]
The indebtedness evidenced by this Security is to
the extent provided in the Indenture, subordinate and
subject in right of payment to the prior payment in
full of all Senior Indebtedness, and this Security is
issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said
provisions.
[If applicable, insert-- The Securities of this
series are not redeemable in whole or in part at any
time prior to maturity.]
[If applicable, insert-- The Securities of this
series are subject to redemption upon not less than 30
days' notice by mail, [if applicable, insert-- (1) on
__________ in any year commencing with the year
__________ and ending with the year ___________
through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after
_____________], as a whole or in part, at the election
of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount):
If redeemed [on or before __________, ___ %, and if
redeemed] during the 12-month period beginning
___________ of the years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ___% of
the principal amount, together in the case of any such
redemption [if applicable, insert-- (whether through
operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor
Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[If applicable, insert-- The Securities of this
series are subject to redemption upon not less than 30
days' notice by mail, (1) on __________ in any year
commencing with the year __________ and ending with
the year __________ through operation of the sinking
fund (expressed as percentages of the principal
amount) set forth in the table below, and (2) at any
time [on or after _________], as a whole or in part,
at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If
redeemed during the 12-month period beginning
___________ of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to ___ % of
the principal amount, together in the case of any such
redemption (whether through operation of the sinking
fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date
will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the
Indenture.]
[Notwithstanding the foregoing, the Company may
not, prior to __________, redeem any Securities of
this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation
of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance
with generally accepted financial practice) of less
than _______% per annum.]
[The sinking fund for this series provides for
the redemption on _________ in each year beginning
with the year _______ and ending with the year
__________ of [not less than] $___________
[("mandatory sinking fund") and not more than
$____________] aggregate principal amount of
Securities of this series. [Securities of this series
acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund
payments otherwise required to be made [in the
[inverse] order in which they become due].]
[If the Security is subject to redemption,
insert-- In the event of redemption [or conversion] of
this Security in part only, a new Security or
Securities of this series for the unredeemed [or
unconverted] portion hereof will be issued in the name
of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue
Discount Security, insert-- If an Event of Default
with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of
this series may be declared due and payable in the
manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount
Security, insert-- If an Event of Default with respect
to Securities of this series shall occur and be
continuing, an amount of principal of the Securities
of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
Such amount shall be equal to--insert formula for
determining the amount. Upon payment (i) of the
amount of principal so declared due and payable and
(ii) of interest on any overdue principal and overdue
interest (in each case to the extent that the payment
of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of
the principal of and interest, if any, on the
Securities of this series shall terminate.]
[The Indenture contains provisions for defeasance
at any time of (a) the entire indebtedness of this
Security and (b) certain restrictive covenants, in
each case upon compliance by the Company with certain
conditions set forth therein, which provisions apply
to this Security.]
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the
modification of the rights and obligations of the
Company and the rights of the Holders of the
Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee
with the consent of the Holders of at least a majority
in principal amount of the Securities at the time
Outstanding of each series to be affected. The
Indenture also contains provisions permitting the
Holders of specified percentages in principal amount
of the Securities of each series at the time
Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of
and premium and interest, if any, on this Security at
the times, place and rate, and in the coin or
currency, herein prescribed [if applicable, insert--
or to convert this Security as provided in the
Indenture].
As provided in the Indenture and subject to
certain limitations [herein and] therein set forth,
the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for
registration of transfer at the office or agency of
the Company in any place where the principal of and
premium and interest, if any, on this Security are
payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the
designated transferee or transferees.
[The Securities of this series are issuable only
in registered form without coupons in denominations of
$_________ and any integral multiple thereof.] [This
global Book-Entry Security is exchangeable for
Securities in definitive form only under certain
limited circumstances set forth in the Indenture.
Securities of this series so issued are issuable only
in registered form without coupons in denominations of
$_____________ and any integral multiple thereof.] As
provided in the Indenture and subject to certain
limitations [herein and] therein set forth, Securities
of this series [so issued] are exchangeable for a like
aggregate principal amount of Securities of this
series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this 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 this Security is registered as
the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice
to the contrary.
All terms used in this Security which are defined
in the Indenture shall have the meanings assigned to
them in the Indenture.
______________________________
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of the within Security, shall
be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM UNIF GIFT MIN ACT - Custodian
- as tenants Custodian
in common (Cust) (Minor)
TEN ENT
- as tenants
by the entireties
JT TEN
- as joint tenants under Uniform Gifts to
with right of Minors Act
survivorship and
not as tenants
in common (State)
Additional abbreviations may also be used though not
in the above list.
__________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING
ZIP CODE, OF ASSIGNEE)
______________________________________________________
______________________________________________________
______________________________________________________
the within Security of HARSCO CORPORATION and hereby
does irrevocably constitute and appoint
______________________________________________________
Attorney to transfer the said Security on the books of
the within-named Corporation, with full power of
substitution in the premises.
Dated:________________________________________________
Signature Guaranteed
by:____________________________________
CONVERSION NOTICE
The undersigned hereby irrevocably exercises the
option to convert the within Security, or portion
thereof below designated, into shares of Common Stock
of Harsco Corporation in accordance with the terms of
the Indenture referred to in such Security and directs
that the shares issuable and deliverable upon the
conversion, together with any check in payment for
fractional shares and any Security representing any
unconverted principal amount thereof, be issued and
delivered to the undersigned unless a name of a person
has been indicated below. If shares are to be issued
in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable
with respect thereto. Any amount required to be paid
by the undersigned on account of interest accompanies
such Security.
Date: ___________________ _______________________
Signature
Fill in for registration Principal Amount to
of shares: be converted
(in an integral
multiple of $1,000,
_____________________ if less than all):
_____________________
_____________________
_____________________ $______________________
_____________________ _______________________
Please print name Social Security
or other Taxpayer
Identification Number
_____________________
Please print address
(including zip code)
Exhibit 5
[Letterhead of Mudge Rose Guthrie Alexander & Ferdon]
December 14, 1994
Harsco Corporation
350 Poplar Church Road
P.O. Box 8888
Camp Hill, Pennsylvania 17001-8888
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We are acting as special counsel to Harsco
Corporation (the "Company") in connection with (i) the
proposed issue and sale by the Company of up to
$200,000,000 principal amount of (a) senior or
subordinated debt securities of the Company (the "Debt
Securities"), which, in the case of subordinated Debt
Securities, may be convertible into the Company's
Common Stock, $1.25 par value, (b) shares of the
Company's preferred stock, $1.25 par value (the
"Preferred Stock"), and (c) shares of the Company's
Common Stock, $1.25 par value (the "Common Stock", and
together with the Debt Securities and the Preferred
Stock, the "Securities"), and (ii) the registration
under the Securities Act of 1933, as amended (the
"Act") of 300,297 shares of Common Stock of the
Company (the "Shares") held by certain shareholders of
the Company, all as described in the Company's
Registration Statement on Form S-3 filed by the
Company with the Securities and Exchange Commission
under the Act, on the date hereof (the "Registration
Statement").
As such counsel we have:
(a) reviewed the actions heretofore taken
by the Company in contemplation of the creation,
issuance and sale of the Securities, the issuance and
sale of the Shares and related matters; and
(b) made such examinations of law and
examined originals or copies, certified or otherwise
authenticated to our satisfaction of all such other
corporate records, instruments, certificates of public
officials or bodies, certificates of officers and
representatives of the Company, and such other
documents, and discussed with officers and
representatives of the Company such questions of fact,
as we have deemed necessary in order to render the
opinions hereinafter expressed.
Based upon the foregoing, we are pleased to
advise you that in our opinion:
1. The Company has been duly incorporated
and is a validly existing corporation under the laws
of the State of Delaware.
2. When (i) the Registration Statement has
become effective under the Act, and the Indenture
dated as of May 1, 1985, between the Company and The
Chase Manhattan Bank (National Association), as
amended by the First Supplemental Indenture to be
entered into by the Company and Chemical Bank, as
successor trustee (the "Senior Trustee"), with respect
to the senior Debt Securities (the "Senior
Indenture"), and the Indenture to be entered into by
the Company and Chemical Bank, as trustee (the
"Subordinated Trustee"), with respect to the
subordinated Debt Securities (the "Subordinated
Indenture," and together with the Senior Indenture,
the "Indentures"), have been qualified under the Trust
Indenture Act of 1939, as amended, (ii) with respect
to the senior Debt Securities, the First Supplemental
Indenture has been duly executed and delivered by the
Company and the Senior Trustee, and with respect to
the subordinated Debt Securities, the Subordinated
Indenture has been duly executed and delivered by the
Company and the Subordinated Trustee, (iii) the Debt
Securities have been duly created, issued, and
authenticated in accordance with all necessary
corporate authorizations and the terms of the
applicable Indenture, and (iv) the Debt Securities
have been delivered and paid for as contemplated by
the Registration Statement and any prospectus
supplement relating thereto and in accordance with the
applicable Indenture, the Debt Securities will be
legally issued by the Company and will be valid and
binding obligations of the Company, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting
creditors' rights and to general equity principles.
3. When (i) the Registration Statement has
become effective under the Act, (ii) the terms of the
Preferred Stock and of its issuance and sale have been
duly established in conformity with the Company's
Restated Certificate of Incorporation, as amended, so
as not to violate any applicable law or result in a
default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or
governmental body having jurisdiction over the
Company, (iii) a Certificate of Designation fixing and
determining the terms of the Preferred Stock in the
form to be filed as an exhibit to the Registration
Statement is filed with the Secretary of State of the
State of Delaware, and (iv) the Preferred Stock has
been duly issued and sold as contemplated by the
Registration Statement and any prospectus supplement
thereto, against payment of the consideration fixed
therefor by the Board of Directors of the Company or a
duly authorized committee thereof, the Preferred Stock
will be validly issued, fully paid, and nonassessable.
4. When (i) the Registration Statement has
become effective under the Act, (ii) the terms of the
issuance and sale of the Common Stock have been duly
established in conformity with the Company's Restated
Certificate of Incorporation, as amended, so as not to
violate any applicable law or result in a default
under any agreement or instrument binding upon the
Company and so as to comply with any requirement or
restriction imposed by any court of governmental body
having jurisdiction over the Company, and (iii) the
Common Stock has been duly issued and sold as
contemplated by the Registration Statement and any
prospectus supplement relating thereto, against
payment of the consideration fixed therefor by the
Board of Directors or a duly authorized committee
thereof, the Common Stock (including any shares of
Common Stock duly issued upon the conversion of
Preferred Stock or subordinated Debt Securities) will
be validly issued, fully paid, and nonassessable.
5. The Shares have been duly authorized
and are validly issued, fully paid and non-assessable.
In connection with the opinion set forth in
paragraph 5 above we have assumed that the Shares when
originally issued were issued for value. We hereby
consent to the filing of this opinion as Exhibit 5 to
the Registration Statement and to the reference to
this firm under the heading "Legal Opinion" in the
Prospectus forming a part of said Registration
Statement. In giving such consent, we do not admit
that we are in the category of persons whose consent
is required under Section 7 of the Act.
Very truly yours,
/s/ Mudge Rose Guthrie
Alexander & Ferdon
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in
this Registration Statement on Form S-3 of our reports
dated February 1, 1994, except as to the first and
third paragraphs of Note 10, for which the dates of
February 25, 1994 and March 4, 1994, respectively, on
our audits of the consolidated financial statements
and consolidated financial statement schedules of
Harsco Corporation and subsidiary companies as of
December 31, 1993 and 1992 and for each of the three
years in the period ended December 31, 1993. Our
reports, which include explanatory paragraphs
regarding (i) the Company's involvement in various
disputes regarding Federal Excise Tax and other
contract matters primarily relating to the five-ton
truck contract and the ultimate outcome of the
Company's claims against the Government relating to
certain other contracts and (ii) changes in the
Company's method of accounting for income taxes and
postretirement benefits other than pensions, appear on
page 56 of the Company's Annual Report to Shareholders
and under Item 14(a) 2 on page 28 of the Company's
Report on Form 10-K.
We also consent to the reference to our Firm under the
caption "Experts".
COOPERS & LYBRAND L.L.P.
Philadelphia, Pennsylvania
December 14, 1994
Exhibit 25(a)
_____________________________________________________
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) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number
of agent for service)
_____________________________________________
HARSCO CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 23-1483991
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
P.O. Box 8888
Camp Hill, Pennsylvania 17001-8888
(Address of principal executive offices) (Zip Code)
___________________________________________
Debt Securities
(Title of the indenture securities)
___________________________________________
GENERAL
Item 1. General Information.
Furnish the following information as to the
trustee:
(a) Name and address of each examining or
supervising authority to which it is subject. New
York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551 and Federal Reserve Bank of
New York, District No. 2, 33 Liberty Street, New York,
N.Y.
Federal Deposit Insurance Corporation,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise
corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee,
describe each such affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the Articles of Association of the
Trustee as now in effect, including the Organization
Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2,
1991 (see Exhibit 1 to Form T-1 filed in connection
with Registration Statement No. 33-50010, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the
Trustee to Commence Business (see Exhibit 2 to Form T-
1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate
trust powers being contained in the documents
identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee
(see Exhibit 4 to Form T-1 filed in connection with
Registration Statement No. 33-84460, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by
Section 321(b) of the Act (see Exhibit 6 to Form T-1
filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of
the Trustee, published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust
Indenture Act of 1939 the Trustee, Chemical Bank, a
corporation organized and existing under the laws of
the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 14th
day of December, 1994.
CHEMICAL BANK
By /s/ J. Generale
_____________________________________
J. Generale
Vice President
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1994,
published in accordance with a call made by the
Federal Reserve Bank of this District pursuant
to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due
from depository institutions:
Noninterest-bearing balances
and currency and coin . . . . . . . . . . $ 5,913
Interest-bearing balances . . . . . . . . . . 5,078
Securities: . . . . . . . . . . . . . . . . . .
Held to maturity securities . . . . . . . . . . 6,544
Available for sale securities . . . . . . . . . 14,264
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 IBF's:
Federal funds sold . . . . . . . . . . . . . 1,811
Securities purchased under
agreements to resell . . . . . . . . . . . . . . 20
Loans and lease financing receivables:
Loans and leases,
net of unearned income $63,160
Less: Allowance for
loan and lease losses 2,015
Less: Allocated
transfer risk reserve 113
-------
Loans and leases,
net of unearned income,
allowance, and reserve . . . . . . . . . . . 61,032
Assets held in trading accounts . . . . . . . . 25,972
Premises and fixed assets
(including capitalized leases) . . . . . . . 1,394
Other real estate owned . . . . . . . . . . . . . 496
Investments in unconsolidated
subsidiaries and associated companies . . . . . 141
Customer's liability to this
bank on acceptance outstanding . . . . . . . 1,167
Intangible assets . . . . . . . . . . . . . . . . 555
Other assets . . . . . . . . . . . . . . . . . 5,812
---------
TOTAL ASSETS . . . . . . . . . . . . . . . . $130,199
=========
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . $45,811
Noninterest-bearing . . $15,174
Interest-bearing . . . 30,637
_______
In foreign offices,
Edge and Agreement subsidiaries,
and IBF's . . . . . . . . . . . . . . . . . . 28,701
Noninterest-bearing $ 154
Interest-bearing 28,547
_______
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 IBF's
Federal funds purchased . . . . . . . . . . . 10,457
Securities sold under
agreements to repurchase . . . . . . . . . . 1,187
Demand notes issued to the U.S. Treasury . . . 1,538
Trading liabilities . . . . . . . . . . . . . . 17,298
Other Borrowed money:
With original maturity
of one year or less . . . . . . . . . . . . 6,647
With original maturity
of more than one year . . . . . . . . . . . 1,035
Mortgage indebtedness and obligations
under capitalized leases . . . . . . . . . . . . 24
Bank's liability on acceptances executed
and outstanding . . . . . . . . . . . . . . . 1,175
Subordinated notes and debentures . . . . . . . 3,500
Other liabilities . . . . . . . . . . . . . . . 5,332
TOTAL LIABILITIES . . . . . . . . . . . . . . 122,705
_________
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . 620
Surplus . . . . . . . . . . . . . . . . . . . . 4,501
Undivided profits and capital reserves . . . . 2,665
Net unrealized holding gains (Losses) on
available-for-sale securities . . . . . . . . . (290)
Cumulative foreign currency
translation adjustments . . . . . . . . . . . . (2)
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . 7,494
______
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL . . . . . . . . . $130,199
=========
I, Joseph L. Sclafani, S.V.P. & 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.
JOSEPH L. SCLAFANI
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.
WALTER V. SHIPLEY )
EDWARD D. MILLER ) DIRECTORS
WILLIAM B. HARRISON )
Exhibit 25(b)
_____________________________________________________
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) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number
of agent for service)
_____________________________________________
HARSCO CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 23-1483991
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
P.O. Box 8888
Camp Hill, Pennsylvania 17001-8888
(Address of principal executive offices) (Zip Code)
___________________________________________
Subordinated Debt Securities
(Title of the indenture securities)
___________________________________________
GENERAL
Item 1. General Information.
Furnish the following information as to the
trustee:
(a) Name and address of each examining or
supervising authority to which it is subject. New
York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551 and Federal Reserve Bank of
New York, District No. 2, 33 Liberty Street, New York,
N.Y.
Federal Deposit Insurance Corporation,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise
corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee,
describe each such affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the Articles of Association of the
Trustee as now in effect, including the Organization
Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2,
1991 (see Exhibit 1 to Form T-1 filed in connection
with Registration Statement No. 33-50010, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the
Trustee to Commence Business (see Exhibit 2 to Form T-
1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate
trust powers being contained in the documents
identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee
(see Exhibit 4 to Form T-1 filed in connection with
Registration Statement No. 33-84460, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by
Section 321(b) of the Act (see Exhibit 6 to Form T-1
filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of
the Trustee, published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust
Indenture Act of 1939 the Trustee, Chemical Bank, a
corporation organized and existing under the laws of
the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 14th
day of December, 1994.
CHEMICAL BANK
By /s/ J. Generale
_____________________________________
J. Generale
Vice President
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1994,
published in accordance with a call made by the
Federal Reserve Bank of this District pursuant
to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due
from depository institutions:
Noninterest-bearing balances
and currency and coin . . . . . . . . . . $ 5,913
Interest-bearing balances . . . . . . . . . . 5,078
Securities: . . . . . . . . . . . . . . . . . .
Held to maturity securities . . . . . . . . . . 6,544
Available for sale securities . . . . . . . . . 14,264
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 IBF's:
Federal funds sold . . . . . . . . . . . . . 1,811
Securities purchased under
agreements to resell . . . . . . . . . . . . . . 20
Loans and lease financing receivables:
Loans and leases,
net of unearned income $63,160
Less: Allowance for
loan and lease losses 2,015
Less: Allocated
transfer risk reserve 113
-------
Loans and leases,
net of unearned income,
allowance, and reserve . . . . . . . . . . . 61,032
Assets held in trading accounts . . . . . . . . 25,972
Premises and fixed assets
(including capitalized leases) . . . . . . . 1,394
Other real estate owned . . . . . . . . . . . . . 496
Investments in unconsolidated
subsidiaries and associated companies . . . . . 141
Customer's liability to this
bank on acceptance outstanding . . . . . . . 1,167
Intangible assets . . . . . . . . . . . . . . . . 555
Other assets . . . . . . . . . . . . . . . . . 5,812
---------
TOTAL ASSETS . . . . . . . . . . . . . . . . $130,199
=========
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . $45,811
Noninterest-bearing $15,174
Interest-bearing 30,637
_______
In foreign offices,
Edge and Agreement subsidiaries,
and IBF's . . . . . . . . . . . . . . . . . . 28,701
Noninterest-bearing $ 154
Interest-bearing 28,547
_______
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 IBF's
Federal funds purchased . . . . . . . . . . . 10,457
Securities sold under
agreements to repurchase . . . . . . . . . . 1,187
Demand notes issued to the U.S. Treasury . . . 1,538
Trading liabilities . . . . . . . . . . . . . . 17,298
Other Borrowed money:
With original maturity
of one year or less . . . . . . . . . . . . 6,647
With original maturity
of more than one year . . . . . . . . . . . 1,035
Mortgage indebtedness and obligations
under capitalized leases . . . . . . . . . . . . 24
Bank's liability on acceptances executed
and outstanding . . . . . . . . . . . . . . . 1,175
Subordinated notes and debentures . . . . . . . 3,500
Other liabilities . . . . . . . . . . . . . . . 5,332
TOTAL LIABILITIES . . . . . . . . . . . . . . 122,705
_________
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . 620
Surplus . . . . . . . . . . . . . . . . . . . . 4,501
Undivided profits and capital reserves . . . . 2,665
Net unrealized holding gains (Losses) on
available-for-sale securities . . . . . . . . . (290)
Cumulative foreign currency
translation adjustments . . . . . . . . . . . . (2)
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . 7,494
______
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL . . . . . . . . . $130,199
=========
I, Joseph L. Sclafani, S.V.P. & 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.
JOSEPH L. SCLAFANI
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.
WALTER V. SHIPLEY )
EDWARD D. MILLER ) DIRECTORS
WILLIAM B. HARRISON )
