DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of our debt securities. The prospectus supplement will describe the specific terms of
the debt securities offered through that prospectus supplement and any general terms outlined in this section that will not apply to those debt securities.
The debt securities will be issued under an indenture dated as of October 16, 2012 between us and The Bank of New York Mellon, as trustee
(the trustee), referred to herein as the indenture. We have summarized certain terms and provisions of the indenture in this section. We have also filed the indenture as an exhibit to the registration statement of which this
prospectus forms a part. You should read the indenture for additional information before you buy any debt securities.
Because this
section is a summary, it does not describe every aspect of the debt securities. This summary is subject to, and qualified in its entirety by reference to, all the provisions of the indenture, including definitions of certain terms used in the
indenture. For example, in this section we use capitalized words to signify terms that have been specifically defined in the indenture. Some of the definitions are repeated herein, but for the rest you will need to read the indenture. We also
include references in parentheses to certain sections of the indenture so that you can more easily locate these provisions. Whenever we refer to particular sections or defined terms of the indenture in this prospectus or in the applicable prospectus
supplement, such sections or defined terms are incorporated by reference herein or in the prospectus supplement.
General
The debt securities will be our unsecured and unsubordinated obligations ranking on parity with all of our other unsecured and unsubordinated
indebtedness.
The indenture does not limit the amount of debt securities that we may issue and provides that we may issue debt securities
from time to time in one or more series. (Section 301). Unless otherwise specified in the applicable prospectus supplement, we may, without the consent of the holders of a series of debt securities, issue additional debt securities of that
series having the same ranking and the same interest rate, maturity date and other terms (except for the price to public and issue date) as such debt securities. Any such additional debt securities, together with the initial debt securities, will
constitute a single series of debt securities under the applicable indenture. No additional debt securities of a series may be issued if an event of default under the applicable indenture has occurred and is continuing with respect to that series of
debt securities.
A prospectus supplement relating to a series of debt securities being offered will include specific terms relating to
the offering. (Section 301). These terms will include some or all of the following:
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the title of the debt securities of the series; |
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any limit on the total principal amount of the debt securities of that series; |
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whether the debt securities will be issuable as registered securities, bearer securities or both;
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whether any of the debt securities are to be issuable initially in temporary global form; |
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whether any of the debt securities are to be issuable in permanent global form; |
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the person to whom interest on the debt securities is payable, if such person is not the person in whose name the
debt securities are registered; |
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the date or dates on which the debt securities will mature and our ability to extend such date or dates;
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if the debt securities bear interest: |
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the interest rate or rates on the debt securities or the formula by which the interest rate or rates shall be
determined; |
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the date or dates from which any interest will accrue; |
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any circumstances under which we may defer interest payments; |
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the record and interest payment dates for debt securities that are registered securities; and
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whether the interest rate or interest rate formula can be reset and, if so, the date or dates on which the
interest rate or interest rate formula can be reset; |
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the place or places where: |
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we can make payments on the debt securities; |
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the debt securities can be presented for registration of transfer or exchange; and |
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notice and demands can be given to us relating to the debt securities and under the indenture;
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the date, if any, after which and the price or prices (and other applicable terms and provisions) at which we may
redeem the offered debt securities pursuant to any optional or mandatory redemption provisions that would permit or require us or the holders of the debt securities to redeem the debt securities prior to their final maturity; |
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any sinking fund or analogous provisions that would obligate us to redeem the debt securities, in whole or in
part, before their final maturity; |
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the denominations in which any debt securities which are registered debt securities will be issuable, if other
than denominations of $1,000 or multiples of $1,000; |
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the denominations in which any debt securities which are bearer securities will be issuable, if other than
denominations of $5,000; |
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whether the debt securities will be convertible into shares of common stock or preferred stock and, if so, the
terms and conditions of any such conversion and, if convertible into shares of preferred stock, the terms of such preferred stock; |
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the currency or currencies of payment on the debt securities; |
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any index used to determine the amount of payments on the debt securities; |
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the portion of the principal payable upon acceleration of the debt securities following an event of default, if
such portion is other than the principal amount of the debt securities; |
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any events of default which will apply to the debt securities in addition to those contained in the indenture;
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any additional covenants applicable to the debt securities and whether certain covenants can be waived;
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whether the provisions described below under the heading Defeasance apply to the debt securities; and
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any other terms and provisions of the debt securities not inconsistent with the terms and provisions of the
indenture. (Section 301). |
If the purchase price of any of the debt securities is denominated in a foreign
currency or currencies, or if the principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies, then the restrictions, elections, general tax considerations, specific terms and other
information with respect to such issue of debt securities and such foreign currency or currencies will be set forth in the applicable prospectus supplement.
When we use the term holder in this prospectus with respect to a registered debt security, we mean the person in whose name such
debt security is registered in the security register. (Section 101).
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Denominations, Registration and Transfer
We may issue the debt securities as registered securities, bearer securities or both. We may issue debt securities in the form of one or more
global securities, as described below under Global Securities. Unless we state otherwise in the applicable prospectus supplement, registered securities denominated in U.S. dollars will be issued only in denominations of $1,000 and
multiples of $1,000. Bearer securities denominated in U.S. dollars will be issued only in denominations of $5,000 with coupons attached. A global security will be issued in a denomination equal to the total principal amount of outstanding debt
securities represented by that global security. The prospectus supplement relating to debt securities denominated in a foreign currency will specify the denominations of the debt securities. (Sections 201, 203, 301 and 302).
You may exchange any debt securities of a series for other debt securities of that series if the other debt securities are denominated in
authorized denominations and have the same aggregate principal amount and the same terms as the debt securities that were surrendered for exchange. In addition, if debt securities of any series are issuable as both registered securities and as
bearer securities, you may, subject to the terms of the indenture, exchange bearer securities (with all unmatured coupons, except as provided below, and all matured coupons in default attached) of the series for registered securities of the same
series of any authorized denominations and that have the same aggregate principal amount and the same terms as the debt securities that were surrendered for exchange.
Unless we state otherwise in the applicable prospectus supplement, any bearer security surrendered in exchange for a registered security
between a record date and the relevant date for payment of interest must be surrendered without the coupon relating to such date for payment of interest attached. Interest will not be payable on the registered security on the relevant date for
payment of interest issued in exchange for the bearer security, but will be payable only to the holder of such coupon when due in accordance with the terms of the indenture.
Unless we state otherwise in the applicable prospectus supplement, bearer securities will not be issued in exchange for registered securities.
(Section 305).
Registered securities may be presented for registration of transfer, duly endorsed or accompanied by a
satisfactorily written instrument of transfer, at the office or agency maintained by us for that purpose in a place of payment. There will be no service charge for any registration of transfer or exchange of the debt securities, but we may require
you to pay any tax or other governmental charge payable in connection with a transfer or exchange of the debt securities. (Section 305). If the applicable prospectus supplement refers to any office or agency, in addition to the security
registrar, initially designated by us where you can surrender the debt securities for registration of transfer or exchange, we may at any time rescind the designation of any such office or agency or approve a change in the location. If debt
securities of a series are issuable only as registered securities, we will be required to maintain a transfer agent in each place of payment for such series. If debt securities of a series are issuable as bearer securities, we will be required to
maintain, in addition to the security registrar, a transfer agent in a place of payment for such series located outside the United States. We may at any time designate additional transfer agents with respect to any series of debt securities.
(Section 1002).
We shall not be required to:
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issue, register the transfer of or exchange debt securities of any series during a period beginning at the
opening of business 15 days before the selection of debt securities of that series to be redeemed and ending at the close of business on: |
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the day of mailing of the relevant notice of redemption, if debt securities of the series are issuable only as
registered securities; or |
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the day of the first publication of the relevant notice of redemption, if debt securities of the series are
issuable as bearer securities; or |
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the mailing of the relevant notice of redemption, if debt securities of that series are also issuable as
registered securities and there is no publication; |
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register the transfer of or exchange any registered security selected for redemption, except for the unredeemed
portion of any registered security being redeemed in part; or |
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exchange any bearer security selected for redemption, except to exchange the bearer security for a registered
security of that series and like tenor which is simultaneously surrendered for redemption. (Section 305). |
Original Issue
Discount Securities
Debt securities may be issued as original issue discount securities and sold at a discount below their stated
principal amount. If a debt security is an original issue discount security, an amount less than the principal amount of the debt security will be due and payable upon a declaration of acceleration of the maturity of the debt security under the
applicable indenture. (Sections 101 and 502). The applicable prospectus supplement will describe the federal income tax consequences and other special factors you should consider before purchasing any original issue discount securities.
Payments and Paying Agents
Unless we
state otherwise in the applicable prospectus supplement, payment of principal and any premium and interest on registered securities, other than a global security, will be made at the office of the paying agent or paying agents we may designate from
time to time. (Section 1002). At our option, payment of any interest may be made (i) by check mailed to the address of the payee entitled to payment at the address listed in the security register, or (ii) by wire transfer to an
account maintained by the payee as specified in the security register. Unless we state otherwise in the applicable prospectus supplement, payment of any installment of interest on registered securities will be made to the person in whose name
the registered security is registered at the close of business on the regular record date for such interest payment. (Section 307).
Unless we state otherwise in the applicable prospectus supplement, payment of principal and any premium and interest on bearer securities will
be payable, subject to applicable laws and regulations, at the offices of the paying agent or paying agents outside the United States that we may designate from time to time. (Section 1002). At our option, payment of any interest may be made
by check or by wire transfer to an account maintained by the payee outside the United States. Unless we state otherwise in the applicable prospectus supplement, payment of interest on bearer securities on any interest payment date will be made only
upon presentation and surrender of the coupon relating to that interest payment date. (Section 1001). No payment on any bearer security will be made:
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at any of our offices or agencies in the United States; |
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by check mailed to any address in the United States; or |
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by transfer to an account maintained in the United States. |
Neither we nor our paying agents will make payment on bearer securities or coupons, or upon any other demand for payment, if you present them
to us or our paying agents within the United States. Notwithstanding the foregoing, payment of principal of and any premium and interest on bearer securities denominated and payable in U.S. dollars will be made at the office of our paying agent in
the United States if, and only if, payment of the full amount payable in U.S. dollars at all offices or agencies outside the United States is illegal or effectively precluded by exchange controls or other similar restrictions. (Section 1002).
Unless we state otherwise in the applicable prospectus supplement, the principal office of the trustee in New York City will be
designated as our sole paying agent for payments on debt securities that are issuable only as registered securities. We will name in the applicable prospectus supplement any paying agent outside the
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United States, and any other paying agent in the United States, initially designated by us for the debt securities. We may, at any time:
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designate additional paying agents; |
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rescind the designation of any paying agent; or |
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approve a change in the office through which any paying agent acts. |
If debt securities of a series are issuable only as registered securities, we will be required to maintain a paying agent in each place of
payment for that series. If debt securities of a series are issuable as bearer securities, we will be required to maintain:
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a paying agent in each place of payment for that series in New York City for payments on any registered
securities of that series; |
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a paying agent in each place of payment located outside the United States where debt securities of that series
and any coupons may be presented and surrendered for payment. If the debt securities of that series are listed on The International Stock Exchange of the United Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so require, then we will maintain a paying agent in London, Luxembourg City or any other required city located outside the United States for debt securities of that series; and
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a paying agent in each place of payment located outside the United States where, subject to applicable laws and
regulations, registered securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon us may be served. (Section 1002). |
Any money that we pay to a paying agent for the purpose of making payments on the debt securities and that remains unclaimed two years after
the payments were due will be returned to us. After that time, any holder of a debt security or any coupon may only look to us for payments on the debt security or coupon. (Section 1003).
Global Securities
Global
Securities. The debt securities may be issued initially in book-entry form and represented by one or more global securities in fully registered form without interest coupons which will be deposited with the trustee as custodian for The
Depository Trust Company, which we refer to as DTC, and registered in the name of Cede & Co. or another nominee designated by DTC. Except as set forth below, the global securities may be transferred, in whole and not in part,
only to DTC or another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the global securities may not be exchanged for certificated securities except in the limited circumstances described below.
All interests in the global securities will be subject to the rules and procedures of DTC.
Certain Book-Entry Procedures for the Global Securities. The descriptions of the operations and procedures of DTC set forth below are
provided solely as a matter of convenience. These operations and procedures are solely within the control of DTC and are subject to change by DTC from time to time. We do not take any responsibility for these operations or procedures, and investors
are urged to contact DTC or its participants directly to discuss these matters.
DTC has advised us that it is:
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a limited-purpose trust company organized under the laws of the State of New York; |
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a banking organization within the meaning of the New York Banking Law; |
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a member of the Federal Reserve System; |
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a clearing corporation within the meaning of the New York Uniform Commercial Code, as amended; and
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a clearing agency registered pursuant to Section 17A of the Exchange Act. |
DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between
participants through electronic book-entry changes to the accounts of its participants, thereby eliminating the need for physical transfer and delivery of certificates. DTCs participants include securities brokers and dealers, banks and trust
companies, clearing corporations and certain other organizations. Indirect access to DTCs system is also available to other entities such as banks, brokers, dealers and trust companies, which we refer to collectively as the indirect
participants, that clear through or maintain a custodial relationship with a participant either directly or indirectly. Investors who are not participants may beneficially own securities held by or on behalf of DTC only through participants or
indirect participants.
We expect that, pursuant to procedures established by DTC:
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upon deposit of each global security, DTC will credit, on its book-entry registration and transfer system, the
accounts of participants with an interest in the global security; and |
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ownership of beneficial interests in the global securities will be shown on, and the transfer of ownership of
beneficial interests in the global securities will be effected only through, records maintained by DTC (with respect to the interests of participants) and the participants and the indirect participants (with respect to the interests of persons other
than participants). |
The laws of some jurisdictions may require that some purchasers of securities take physical
delivery of those securities in definitive form. Accordingly, the ability to transfer beneficial interests in the securities represented by a global security to those persons may be limited. In addition, because DTC can act only on behalf of its
participants, who in turn act on behalf of persons who hold interests through participants, the ability of a person holding a beneficial interest in a global security to pledge or transfer that interest to persons or entities that do not participate
in DTCs system, or to otherwise take actions in respect of that interest, may be affected by the lack of a physical security in respect of that interest.
So long as DTC or its nominee is the registered owner of a global security, DTC or that nominee, as the case may be, will be considered the
sole legal owner or holder of the securities represented by that global security for all purposes of the securities and the indenture. Except as provided below, owners of beneficial interests in a global security will not be entitled to have the
debt securities represented by that global security registered in their names, will not receive or be entitled to receive physical delivery of certificated securities and will not be considered the owners or holders of the securities represented by
that beneficial interest under the indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the trustee. Accordingly, each holder owning a beneficial interest in a global security must rely on the
procedures of DTC and, if that holder is not a participant or an indirect participant, on the procedures of the participant through which that holder owns its interest, to exercise any rights of a holder of securities under the indenture or that
global security. We understand that under existing industry practice, in the event that we request any action of holders of securities, or a holder that is an owner of a beneficial interest in a global security desires to take any action that DTC,
as the holder of that global security, is entitled to take, DTC would authorize the participants to take that action and the participants would authorize holders owning through those participants to take that action or would otherwise act upon the
instruction of those holders. Neither we nor the trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of securities by DTC or for maintaining, supervising or reviewing any records of
DTC relating to the securities.
Payments with respect to the principal of and interest on a global security will be payable by the
trustee to or at the direction of DTC or its nominee in its capacity as the registered holder of the global security under the
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indenture. Under the terms of the indenture, we and the trustee may treat the persons in whose names the debt securities, including the global securities, are registered as the owners thereof for
the purpose of receiving payment thereon and for any and all other purposes whatsoever. Accordingly, neither we nor the trustee has or will have any responsibility or liability for the payment of those amounts to owners of beneficial interests in a
global security. Payments by the participants and the indirect participants to the owners of beneficial interests in a global security will be governed by standing instructions and customary industry practice and will be the responsibility of the
participants and indirect participants and not of DTC.
Transfers between participants in DTC will be effected in accordance with
DTCs procedures and will be settled in same-day funds.
Although DTC has agreed to the
foregoing procedures to facilitate transfers of interests in the global securities among participants in DTC, it is under no obligation to perform or to continue to perform those procedures, and those procedures may be discontinued at any time.
Neither we nor the trustee will have any responsibility for the performance by DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
We obtained the information in this section and elsewhere in this prospectus concerning DTC and its book-entry system from sources that we
believe are reliable, but we take no responsibility for the accuracy of any of this information.
Certificated Securities. We will
issue certificated securities to each person that DTC identifies as the beneficial owner of the securities represented by the global securities upon surrender by DTC of the global securities only if:
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DTC notifies us that it is no longer willing or able to act as a depository for the global securities, and we
have not appointed a successor depository within 90 days of that notice; |
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DTC ceases to be a clearing agency registered under the Exchange Act at a time when such registration is
required, and we have not appointed a successor depository within 90 days after becoming aware of that cessation; |
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circumstances specified with respect to a particular series of debt securities as triggering the ability to
exchange global securities occur; or |
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we determine (subject to the procedures of DTC) not to have the securities represented by a global security.
(Section 305). |
Neither we nor the trustee will be liable for any delay by DTC, its nominee or any direct or
indirect participant in identifying the beneficial owners of the related securities. We and the trustee may conclusively rely on, and will be protected in relying on, instructions from DTC or its nominee for all purposes, including with respect to
the registration and delivery, and the respective principal amounts, of the securities to be issued in certificated form.
Bearer Debt Securities
If we issue bearer securities, the applicable prospectus supplement will describe all of the special terms and provisions of debt
securities in bearer form, and the extent to which those special terms and provisions are different from the terms and provisions described in this prospectus, which generally apply to debt securities in registered form, and will summarize
provisions of the applicable indenture that relate specifically to bearer debt securities.
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Covenants Contained in the Indenture
The following definitions are used in this prospectus to describe certain covenants contained in the indenture.
Attributable Debt means:
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the balance sheet liability amount in respect of capital leases, plus |
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the amount of future minimum operating lease payments, less any amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and similar charges, discounted using the methodology used to calculate the present value of operating lease payments in our most recent Annual Report to Stockholders reflecting
that calculation. |
The amount of Attributable Debt relating to an operating lease that can be terminated by the lessee
with the payment of a penalty will be calculated based on the lesser of:
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the aggregate amount of lease payments required to be made until the first date the lease can be terminated by
the lessee plus the amount of the penalty, or |
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the aggregate amount of lease payments required to be made during the remaining term of the lease. (Section
101). |
Consolidated Net Tangible Assets means the total amount of our assets, minus applicable
reserves and other properly deductible items, minus
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all current liabilities, excluding Funded Debt classified as such by reason of being renewable or extendible, and
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all goodwill, trade names, patents, unamortized debt discount and expense, and other similar intangibles to the
extent not deducted as reserves and deductible items set forth above, |
all as set forth on our most recent consolidated balance sheet.
(Section 101).
Funded Debt means:
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Indebtedness that matures more than 12 months after the time of the computation of the amount thereof or that is
extendible or renewable to a time more than 12 months after the time of the computation of the amount thereof; |
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all guarantees of any such Indebtedness or of dividends, other than any guarantee in connection with the sale or
discount by us or any Restricted Subsidiary of accounts receivable, trade acceptances and other paper arising in the ordinary course of business; and |
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all preferred stock of any Subsidiary, taken at the greater of its voluntary or involuntary liquidation price at
the time of any calculation hereunder, but exclusive of accrued dividends, if any. |
Funded Debt does not, however, include any amount in
respect of obligations under leases, or guarantees of obligations, whether or not such obligations or guarantees would be included as liabilities on a balance sheet. (Section 101).
Indebtedness means:
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all items of indebtedness or liability, except capital and surplus, that would be included in total liabilities
on the liability side of a balance sheet as of the date that indebtedness is being determined; and |
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guarantees, endorsements (other than for purposes of collection) and other contingent obligations relating to, or
to purchase or otherwise acquire, indebtedness of others, unless the amount is included in the preceding bullet point. |
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Indebtedness does not, however, include any obligations or guarantees of obligations relating to lease rentals,
even if the obligations or guarantees of obligations relating to lease rentals would be included as liabilities on the consolidated balance sheet of us and our Restricted Subsidiaries. (Section 101).
Principal Domestic Manufacturing Property means any building, structure or other facility, together with the land on which
it is erected and fixtures that are part of such building, located in the United States that is used by us or our Subsidiaries primarily for manufacturing, processing or warehousing, the gross book value of which exceeds 1% of our Consolidated Net
Tangible Assets, other than any such building,
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that is financed by obligations issued by a state, territory or possession of the United States, or any of their
political subdivisions, the interest on which is excludable from gross income of the holders pursuant to Section 103(a)(1) of the Internal Revenue Code of 1986, or |
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that is not of material importance to the total business conducted by us and our Subsidiaries, taken as a whole.
(Section 101). |
A Restricted Subsidiary is any Subsidiary of ours, but does not include a
Subsidiary (i) that does not transact any substantial portion of its business in the United States and does not regularly maintain any substantial portion of its fixed assets in the United States, or (ii) that is engaged primarily in
financing our operations or the operations of our Subsidiaries, or both. (Section 101).
Secured Funded Debt
means Funded Debt which is secured by a mortgage, lien or other similar encumbrance upon any of our assets or those of our Restricted Subsidiaries. (Section 101).
A Subsidiary is a corporation or other entity in which we, or one or more of our other Subsidiaries, directly or
indirectly, own more than 50% of the outstanding voting equity interests. (Section 101).
Wholly-owned Restricted
Subsidiary means any Restricted Subsidiary in which we and our other Wholly-owned Restricted Subsidiaries own all of the outstanding Funded Debt and capital stock (other than directors qualifying shares). (Section 101).
Restrictions on Secured Funded Debt
The
indenture limits the amount of Secured Funded Debt that we and our Restricted Subsidiaries may incur or otherwise create, including by guarantee. Neither we nor our Restricted Subsidiaries may incur or otherwise create any new Secured Funded Debt
unless immediately after the incurrence or creation:
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the aggregate principal amount of all of our outstanding Secured Funded Debt and that of our Restricted
Subsidiaries (other than certain categories of Secured Funded Debt discussed below), plus |
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the aggregate amount of our Attributable Debt and that of our Restricted Subsidiaries relating to sale and
leaseback transactions, |
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does not exceed 15% of our Consolidated Net Tangible Assets. |
This limitation does not apply if the outstanding debt securities are secured equally and ratably with or prior to the new Secured Funded Debt.
The following categories of Secured Funded Debt will not be considered in determining whether we are in compliance with the covenant described
in the first paragraph under the heading Restrictions on Secured Funded Debt:
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Secured Funded Debt of a Restricted Subsidiary owing to us or to one of our Wholly-owned Restricted Subsidiaries;
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Secured Funded Debt resulting from a mortgage, lien or other similar encumbrance in favor of the
U.S. government or any state or any instrumentality thereof to secure certain payments; |
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Secured Funded Debt resulting from a mortgage, lien or other similar encumbrance on property, shares of stock or
Indebtedness of any company existing at the time that the company becomes one of our Subsidiaries; |
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Secured Funded Debt resulting from a mortgage, lien or other similar encumbrance on property, shares of stock or
Indebtedness which (1) exists at the time that the property, shares of stock or Indebtedness is acquired by us or one of our Restricted Subsidiaries, including acquisitions by merger or consolidation, (2) secures the payment of any part of
the purchase price of or construction cost for the property, shares of stock or Indebtedness or (3) secures any Indebtedness incurred prior to, at the time of, or within 120 days after, the acquisition of the property, shares of stock or
Indebtedness or the completion of any construction of the property for the purpose of financing all or a part of the purchase price or construction cost of the property, shares of stock or Indebtedness, provided that, in all cases, we continue to
comply with the covenant relating to mergers and consolidations discussed under the heading Restrictions on Mergers and Sales of Assets below; |
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Secured Funded Debt resulting from a mortgage, lien or other similar encumbrance in connection with the issuance
of revenue bonds on which the interest is exempt from federal income tax under the Internal Revenue Code; and |
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any extension, renewal or refunding of (1) any Secured Funded Debt permitted under the first paragraph under
the heading Restrictions on Secured Funded Debt or (2) any Secured Funded Debt outstanding as of the date of the indenture. (Section 1007). |
Restrictions on Sale and Leaseback Transactions
Under the indenture, neither we nor any Restricted Subsidiary may enter into any sale and leaseback transaction involving a Principal Domestic
Manufacturing Property, except a sale by a Restricted Subsidiary to us or another Restricted Subsidiary or a lease not exceeding three years, by the end of which we intend to discontinue use of the property, and except for any transaction with a
local or state authority that provides financial or tax benefits, unless:
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the net proceeds of the sale are at least equal to the fair market value of the property; and
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within 120 days of the transfer, or two years if we hold the net proceeds of the sale in cash or cash
equivalents, we purchase and retire debt securities and/or repay Funded Debt and/or make expenditures for the expansion, construction or acquisition of a Principal Domestic Manufacturing Property at least equal to the net proceeds of the sale.
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In addition, the restriction does not apply if the sum of the aggregate fair market value of the property transferred
in a sale and leaseback transaction and all Secured Funded Debt (other than the categories of Secured Funded Debt discussed above as not being included in the consideration of the covenant restricting Secured Funded Debt) does not exceed 15% of our
Consolidated Net Tangible Assets. (Section 1008).
Restrictions on Mergers and Sales of Assets
The indenture generally permits a consolidation or merger between us and another entity. It also permits the sale or transfer by us of all or
substantially all of our property and assets. These transactions are permitted so long as:
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the resulting or acquiring entity, if other than us, is organized and existing under the laws of a
United States jurisdiction and assumes responsibility for the payment of all amounts due on the debt securities and performance of the covenants in the indenture; |
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immediately after giving effect to the transaction, no event of default under the indenture exists;
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steps have been taken to secure the debt securities equally and ratably with all indebtedness secured by a
mortgage, lien or other similar encumbrance if as a result of such transaction, our properties or assets or Restricted Subsidiaries properties or assets would become subject to such mortgage, lien or other similar encumbrance not permitted
pursuant to the provisions discussed above under the heading Restrictions on Secured Funded Debt without equally and ratably securing the debt securities; and |
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we have delivered to the trustee an officers certificate and an opinion of counsel, each stating that the
transaction and, if a supplemental indenture is required in connection with the transaction, the supplemental indenture comply with the indenture and that all conditions precedent to the transaction contained in the indenture have been satisfied.
(Section 801). |
If we consolidate or merge with or into any other entity or sell or lease all or substantially
all of our assets according to the terms and conditions of the indenture, the resulting or acquiring entity will be substituted for us in the indenture with the same effect as if it had been an original party to the indenture. As a result, such
successor entity may exercise our rights and powers under the indenture, in our name and, except in the case of a lease, we will be released from all obligations and covenants under the indenture and under the debt securities and coupons.
(Section 802).
Notwithstanding the foregoing provisions, we may transfer all of our property and assets to another corporation if,
immediately after giving effect to the transfer, such corporation is our Wholly-owned Restricted Subsidiary and we would be permitted to become liable for an additional amount of Secured Funded Debt. (Section 803).
Modification and Waiver
Under the
indenture, certain of our rights and obligations and certain of the rights of the holders of the debt securities may be modified or amended with the consent of the holders of a majority of the total principal amount of the outstanding debt
securities of all series of debt securities affected by the modification or amendment, acting together as a class. However, the following modifications and amendments will not be effective against any holder without its consent:
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a change in the stated maturity date of any payment of principal or interest; |
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a reduction in the principal amount of, or rate of interest on, any debt security or any change in the interest
rate or method of calculating the interest rate applicable to any debt security; |
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a reduction in the premium payable upon redemption of any debt security; |
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a reduction in the amount of principal of an original issue discount debt security due and payable upon
acceleration of the maturity of such debt security; |
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a change in place of payment where, or the currency in which, any payment on the debt securities is payable;
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an impairment of a holders right to sue us for the enforcement of payments due on the debt securities; or
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a reduction in the percentage of outstanding debt securities of any series required to consent to a modification
or amendment of the indenture or required to consent to a waiver of compliance with certain provisions of the indenture or certain defaults under the indenture. (Section 902). |
Under the indenture, the holders of at least a majority of the total principal amount of the outstanding debt securities of any series of debt
securities may waive compliance by us with certain restrictive provisions of the indenture, on behalf of all holders of all series of debt securities to which such restrictive provision applies. (Section 1010).
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Under the indenture, the holders of at least a majority of the total principal amount of the
outstanding debt securities may, on behalf of all holders of such series of debt securities, waive any past default under the indenture, except:
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a default in the payment of the principal of, or any premium or interest on, any debt securities of that series;
or |
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a default under any provision of the indenture which itself cannot be modified or amended without the consent of
the holders of each outstanding debt security of that series. (Section 513). |
Events of Default
Event of Default, when used in the indenture with respect to any series of debt securities, means any of the following:
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failure to pay interest on any debt security of that series for 30 days after the payment is due;
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failure to pay the principal of, or any premium on, any debt security of that series when due;
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failure to deposit any sinking fund payment on debt securities of that series when due; |
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failure to perform any other covenant in the indenture that applies to debt securities of that series for
90 days after we have received written notice of the failure to perform in the manner specified in the indenture; |
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default in respect of any Indebtedness for money borrowed by us or any consolidated Subsidiary, or under any
mortgage, indenture or instrument under which such Indebtedness is issued or secured, including a default with respect to debt securities of any other series, which default results in the acceleration of Indebtedness with an aggregate outstanding
principal amount in excess of $50,000,000, unless the acceleration is rescinded, or such debt is paid or waived within 10 days after we have received written notice of the default in the manner specified in the indenture; |
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certain events in bankruptcy, insolvency or reorganization; or |
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any other Event of Default that may be specified for the debt securities of that series when that series is
created. (Section 501). |
If an Event of Default for any series of debt securities occurs and continues, the
trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the series may declare the entire principal of all the debt securities of that series to be due and payable immediately, except that, if the
Event of Default is caused by certain events in bankruptcy, insolvency or reorganization, the entire principal of all of the debt securities of the series will become due and payable immediately without any act on the part of the trustee or holders
of the debt securities. If such a declaration occurs, the holders of a majority of the aggregate principal amount of the outstanding debt securities of that series can, subject to conditions, rescind the declaration. (Section 502).
The prospectus supplement relating to a series of debt securities which are original issue discount securities will describe the particular
provisions that relate to the acceleration of maturity of a portion of the principal amount of the series when an Event of Default occurs and continues.
The indenture requires us to file an officers certificate with the trustee each year that states, to the knowledge of the certifying
officers, no defaults exist under the terms of the indenture. (Section 1009). The trustee may withhold notice to the holders of debt securities of any default, except defaults in the payment of principal, premium, interest or any sinking fund
installment, if it considers the withholding of notice to be in the best interests of the holders. For purposes of this paragraph, default means any event which is, or after notice or lapse of time or both would become, an Event of
Default under the indenture with respect to the debt securities of the applicable series. (Section 602).
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Other than its duties in the case of an Event of Default, a trustee is not obligated to exercise
any of its rights or powers under the indenture at the request, order or direction of any holders of debt securities, unless the holders offer the trustee reasonable indemnification. (Sections 601, 603). If reasonable indemnification is
provided, then, subject to other rights of the trustee, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series may, with respect to the debt securities of that series, direct the time, method and
place of:
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conducting any proceeding for any remedy available to the trustee; or |
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exercising any trust or power conferred upon the trustee. (Sections 512, 603). |
The holder of a debt security of any series will have the right to begin any proceeding with respect to the indenture or for any remedy only
if:
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the holder has previously given the trustee written notice of a continuing Event of Default with respect to the
debt securities of that series; |
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have
made a written request to the trustee to begin such proceeding; |
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the holder has offered to the trustee reasonable indemnification; |
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the trustee has not started such proceeding within 60 days after receiving the request; and
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the trustee has not received directions inconsistent with such request from the holders of a majority in
aggregate principal amount of the outstanding debt securities of that series during those 60 days. (Section 507). |
However, the
holder of any debt security will have an absolute right to receive payment of principal of, and any premium and interest on, the debt security when due and to institute suit to enforce this payment. (Section 508).
Defeasance
The indenture includes
provisions allowing defeasance of the debt securities of any series. In order to defease a series of debt securities, we would deposit with the trustee money or U.S. Government Obligations sufficient to make all payments on those debt securities. If
we make a defeasance deposit with respect to a series of debt securities, we may elect either:
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to be discharged from all of our obligations on that series of debt securities, except for our obligations to
register transfers and exchanges; to replace temporary or mutilated, destroyed, lost or stolen debt securities; to maintain an office or agency in respect of the debt securities and to hold moneys for payment in trust; or |
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to be released from our restrictions described above relating to mergers and sales of assets, Secured Funded Debt
and sale and leaseback transactions. |
To establish the trust, we must deliver to the trustee an opinion of our counsel
that the holders of that series of debt securities will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance and will be subject to federal income tax on the same amount, in the same manner and at the same
times as would have been the case if the defeasance had not occurred. (Sections 403 and 1011).
The term U.S. Government
Obligations means direct obligations of the United States of America backed by the full faith and credit of the United States. (Section 101).
Notices
Unless we state otherwise in the
applicable prospectus supplement, we will give notices to holders of bearer securities by publication in a daily newspaper in the English language of general circulation in New York City.
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We will give notices by mail to holders of registered securities at the addresses listed in the security register. (Section 106).
Persons Deemed Owners
Title to any
bearer securities and any coupons issued with any bearer securities will pass by delivery. We and the trustee, and any of our or the trustees agents, may treat the bearer of any bearer security, the bearer of any coupon and the registered
owner of any registered security as the owner of the security or coupon, whether or not the debt security or coupon shall be overdue and notwithstanding any notice to the contrary, for the purpose of making payment and for all other purposes.
(Section 308).
Replacement of Securities and Coupons
We will replace any mutilated security, or a mutilated coupon issued with a security, at the holders expense upon surrender of the
security to the trustee. We will replace destroyed, lost or stolen securities or coupons at the holders expense upon delivery to the trustee of evidence of the destruction, loss or theft satisfactory to us and the trustee. If any coupon
becomes destroyed, stolen or lost, we will replace it by issuing a new security in exchange for the security with which the coupon was issued. In the case of a destroyed, lost or stolen security or coupon, an indemnity satisfactory to the trustee
and us may be required at the holders expense before we will issue a replacement security. (Section 306).
Conversion and Exchange
If any offered debt securities are convertible into preferred stock or common stock at the option of the holders or exchangeable for
preferred stock or common stock at our option, the prospectus supplement relating to those debt securities will include the terms and conditions governing any conversions and exchanges.
Governing Law
The indenture and the debt
securities will be governed by, and construed in accordance with, the laws of the State of New York. (Section 114).
Information Concerning the
Trustee
The Bank of New York Mellon is the trustee under the indenture. From time to time, we maintain deposit accounts and conduct
other banking transactions with the trustee in the ordinary course of business. The Bank of New York Mellon also serves as trustee for certain of our other senior unsecured debt obligations.
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