SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT -------------- ------ 8 3/8 % Debentures due 2030 $700,000,000 |
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING: December 18, 1997.
NAME AND ADDRESS OF AGENT FOR SERVICE: Catherine Harrison, Esq., 55 Glenlake
Parkway, NE, Atlanta, Georgia 30328.
The Company hereby amends this application for qualification on such date or dates as may be necessary to delay its effectiveness until (i) the 20th day after the filing of a further amendment which specifically states that it shall supersede this amendment, or (ii) such date as the Securities and Exchange Commission, acting pursuant to Section 307(c) of the Act, may determine upon the written request of the Company.
(A) FORM OF ORGANIZATION: Corporation.
(B) STATE OR OTHER SOVEREIGN POWER UNDER THE LAWS OF WHICH ORGANIZED:
Delaware.
United Parcel Service of America, Inc., a Delaware corporation (the
"Company"), is relying upon the exemption from the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act"), provided by
Section 3(a)(9) thereunder, in connection with the Company's exchange offer as
described herein (the "Exchange Offer"). The Exchange Offer is being made by
the Company pursuant to its Offering Circular dated December 18, 1997 ("Offering
Circular"), and the related Letter of Transmittal and Notice of Guaranteed
Delivery of even date therewith, and consists of an offer to exchange the
Company's $700,000,000 8 3/8% Debentures due 2030 (the "New 2030 Debentures")
for the Company's outstanding $700,000,000 8 3/8% Debentures due 2020 (the "Old
2020 Debentures").
There have not been any sales of securities of the same class as the New 2030 Debentures or the Old 2020 Debentures by the Company, nor are there any such other sales planned, by or through an underwriter at or about the time of the Exchange Offer transaction.
The Company retained Deutsche Morgan Grenfell ("DMG") to advise the Company as to the structure, process and financial matters related to the Exchange Offer. DMG's services to the Company are limited solely to such advisory services, and DMG will not, directly or indirectly, solicit the exchange of Old 2020 Debentures for New 2030 Debentures under the Exchange Offer or otherwise make recommendations with respect to acceptance or rejection of the Exchange Offer. In exchange for such advisory services, DMG will be paid a flat fee which is not dependent upon the outcome of the transaction. DMG will not be paid any commission or similar variable type of remuneration.
The Company also has retained D.F. King & Co., Inc. as the "Information Agent" and Citibank, N.A. as the "Exchange Agent" in connection with the Exchange Offer. The Information Agent and Exchange Agent will provide to holders of Old 2020 Debentures only information otherwise contained in the Offering Circular and general information regarding the mechanics of the exchange process. The Exchange Agent will provide the actual acceptance and exchange services with respect to the exchange of Old 2020 Debentures and New 2030 Debentures. Neither the Information Agent nor the Exchange Agent will solicit exchanges in connection with the Exchange Offer and will not make recommendations as to the acceptance or rejection of the Exchange Offer. Both the Information Agent and Exchange Agent will be paid reasonable fees directly by the Company for their services.
There are no cash payments made or to be made by any holder of the outstanding Old 2020 Debentures in connection with the Exchange Offer.
United Parcel Service Co.
United Parcel Service Deutschland Inc.
United Parcel Service General Services Co.
United Parcel Service, Inc.
United Parcel Service, Inc.
United Parcel Service, Inc. (Virginia)
United Parcel Service Oasis Supply Corporation
UPS Internet Services, Inc.
UPS Procurement Services, Inc.
UPS Professional Services, Inc.
UPS Customhouse Brokerage, Inc.
UPS International General Services Co.
UPS International, Inc.
UPS International Forwarding, Inc.
UPS of Ireland, Inc.
UPS of Argentina, Inc.
UPS of Brazil, Inc.
UPS of Portugal, Inc.
UPS of Norway, Inc.
United Parcel Service Espana Ltd.
United Parcel Service Italia, S.R.L.
UPS of China, Inc.
UPS Logistics Group, Inc.
UPS Truck Leasing, Inc.
UPS Worldwide Logistics, Inc.
Worldwide Dedicated Services, Inc.
Diversified Trimodal, Inc.
Roadnet Technologies, Inc.
SonicAir, Inc.
UPS Worldwide Forwarding, Inc.
UPICO Corporation.
UPS Aviation Services, Inc.
Merchants Parcel Delivery
Trailer Conditions, Inc.
II Morrow, Inc.
Red Arrow Bonded Messenger Corporation
UPS Air Leasing, Inc.
Avenair Corporation
Nevair Corporation
UPS Telecommunications, Inc.
UPS Properties, Inc.
E1 Paso Distribution Center, Inc. (One)
E1 Paso Distribution Center, Inc. (Two)
Tri-State, Distribution, Inc. (One)
Tri-State, Distribution, Inc. (Two)
Tri-State, Distribution, Inc. (Three)
Tri-State, Distribution, Inc. (Four)
Tri-State, Distribution, Inc. (Five)
Vista Distribution Center, Inc. (One)
Vista Distribution Center. (Two)
Vista Distribution Center, Inc. (Three)
Vista Distribution Center, Inc. (Four)
Vista Distribution Center, Inc. (Five)
Upinsco, Inc.
Velleb, Inc.
Adi Realty Company
Alko Corporation
Bardale Company
Basplas Corporation
Brastock Corporation
Brookind Corporation
Buckroe Corporation
Burdence Corporation
Chasreal, Inc.
Cleve Company
Cova Corporation
Dakkel Corporation
Dalho Corporation
Darico, Inc.
Daven Corporation
Deerfield Corporation
Denado Corporation
Dullesport Corporation
Edison Corporation
Elsil Corporation
Evind Corporation
Fardak Corporation
Galanta Company
Kylou, Inc.
Labar Corporation
Lakefair Corporation
Mascester Company, Inc.
Maereal Company, Inc.
Mexalb Corporation
Minneagen Real Estate Company
Missjack Company
Montbill Corporation
Moroc Corporation
Newbany Corporation
Nubee, Inc.
Oshaon Corporation
Parkprop, Inc.
Penallen Corporation
Ralcar Corporation
Rockapar Corporation
Royoak, Incorporated
Sallad Corporation
Saluta Corporation
Saskan Corporation
Kacika Corporation
Socol Corporation
Solacal Company
Lacalos Corporation
Sophil Company
South Seventh Corporation
Stadiana, Inc.
Swanpor Corporation.
Temphis Corporation
Valacal Company
Verbal Corporation
Verlas Corporation
Willmanch Corporation
Wyoas Corporation
Wyld, Inc.
United Parcel Service Pty. Ltd.
UPS Pty. Ltd.
United Parcel Service Speditionsgesellschaft m.b.H.
UPS Transport GmbH
United Parcel Service (Bahrain) WLL
United Parcel Service Belgium N.V
United Parcel Service (Bermuda) Ltd
UPS DO Brasil & Cia
2855-8278 Quebec Inc.
724352 Ontario Inc.
United Parcel Service Canada Ltd.
United Parcel Service Cayman Islands Limited
UPS De San Jose, S.A.
UPS Denmark A/S
United Parcel Services Finland OY
United Parcel Service France S.N.C
Prost-Transports S.A. Speditionsgesellachaft gmbH
United Parcel Service Deutschland Inc.
UPS Air Cargo Service GmbH.
UPS Grundstuecksverwaltungs GmbH
UPS Transport GmbH
UPS Transport GmbH II
UPS Worldwide Logistics GmbH
UPS Parcel Delivery Service Limited
United Parcel Service CSTC Ireland Limited
United Parcel Service of Ireland Limited
United Parcel Service Italia, S.R.L.
United Parcel Service Co., Japan Branch
UPS Japan Limited
United Parcel Service Jersey Limited
United Parcel Service (M)Sdn. Bhd
United Parcel Service (Transport) Sdn. Bhd
United Parcel Service De Mexico S.A. De C.V
Prost-Transports Nederland B.V
United Parcel Service Nederland B.V
UPS Norge A/S
UPS of Norway, Inc., Oslo Branch
UPS of Portugal, Inc., Lisbon Branch
United Parcel Service Co., Singapore Branch
United Parcel Service Singapore PTE Lted
United Parcel Service Co., Korean Branch
Sociedad Iversora Sanrelman, S.A
United Parcel Service Espana Ltd. Y Compania, S.R.C
UPS Spain, S.L
United Parcel Service Sweden AB
United Parcel Service (Switzerland)
UPS International, Inc., Taiwan Branch
UPS Parcel Delivery Service Limited
Atexco (1991) Limited
Atlasair Limited
Carryfast Limited
IML Air Services Group Limited
United Parcel Service of America
UPS (UK) Limited
UPS Limited
UPS of America Limited
NAME ADDRESS OFFICE ---------------------- ------------------ ------------------------------------ John W. Alden 55 Glenlake Pkwy. Vice Chairman, Senior Vice Atlanta, GA 30328 President and Director Robert J. Clanin 55 Glenlake Pkwy. Senior Vice President, Treasurer, Atlanta, GA 30328 Chief Financial Officer and Director James P. Kelly 55 Glenlake Pkwy. Chairman of the Board, Chief Atlanta, GA 30328 Executive Officer and Director Kenneth W. Lacy 55 Glenlake Pkwy. Senior Vice President Atlanta, GA 30328 Joseph R. Moderow 55 Glenlake Pkwy. Senior Vice President, Secretary, Atlanta, GA 30328 General Counsel and Director Kent C. Nelson 55 Glenlake Pkwy. Director, Former Chairman of the Atlanta, GA 30328 Board and Former Chief Executive Officer Joseph M. Pyne 55 Glenlake Pkwy. Senior Vice President Atlanta, GA 30328 Michael L. Eskew 55 Glenlake Pkwy. Senior Vice President Atlanta, GA 30328 Edward L. Schroeder 55 Glenlake Pkwy. Senior Vice President Atlanta, GA 30328 Lea N. Soupata 55 Glenlake Pkwy. Senior Vice President Atlanta, GA 30328 Calvin E. Tyler, Jr. 55 Glenlake Pkwy. Senior Vice President and Director Atlanta, GA 30328 Charles L. Schaffer 55 Glenlake Pkwy. Senior Vice President and Director Atlanta, GA 30328 Thomas H. Weidemeyer 55 Glenlake Pkwy. Senior Vice President Atlanta, GA 30328 William H. Brown 55 Glenlake Pkwy. Director Atlanta, GA 30328 Carl Kayser 55 Glenlake Pkwy. Director Atlanta, GA 30328 Gary E. MacDougal 55 Glenlake Pkwy. Director Atlanta, GA 30328 Victor A. Pelson 55 Glenlake Pkwy. Director Atlanta, GA 30328 John W. Rogers 55 Glenlake Pkwy. Director Atlanta, GA 30328 Robert M. Teeter 55 Glenlake Pkwy. Director Atlanta, GA 30328 |
No person owns 10 percent or more of voting securities of the Company as of such date.
There are no underwriters of the securities proposed to be offered in the Exchange Offer. Following are the underwriters identified in Section 6(a) hereof:
A. The following were the underwriters in the Company's issuance in January 1996 of $200 million of 5.50% Eurobond Notes due January 1999:
Merrill Lynch International Limited
Citibank International plc
Goldman Sachs International
Paribas Capital Markets
Barclays de Zoete Wedd Limited
DKB International
HSBC Markets
Morgan Stanley & Co. Incorporated
CS First Boston
Lehman Brothers
SBC Warburg
A Division of Swiss Bank Corporation
Caisse des Depots et Consignations
Dresdner Bank Aktiengesellschaft
Heritage Finance & Trust Co.
Paine Webber International (UK) Ltd.
Deutsche Morgan Grenfell
J.P. Morgan Securities Ltd.
Banca del Gottardo
CBI-TDB Union Bancaire Privee
Darier, Hentsch & Cie
IBJ International plc
UBS Limited
The mailing address for the above underwriters is: 25 Ropemaker Street, London
ECZY 9LY.
B. The following were the underwriters in the Company's issuance in April 1996 of 200 million of 3.25% Swiss Franc Notes due October 1999:
Merrill Lynch Capital Markets AG
Credit Suisse
Union Bank of Switzerland
Cantonalbanks of Switzerland
Groupement des Banquiers Prives Genevois
Swiss Bank Corporation
Citibank (Switzerland)
Swiss Volksbank
Bank Julius Bar & Co. Ltd
Bank Leu Ltd
LGT Bank in Liechtenstein Aktiengesellschaft
Bank J. Vontobel & Co. AG
Banque Nationale de Paris (Suisse) SA
Banque Paribas (Suisse) S.A.
Deutsche Bank (Schweiz) AG
Lehman Brothers Bank (Switzerland)
Salomon Brothers International Limited
Union Bancaire Privee
Verwaltungs-und Privat-Bank Aktiengesellschaft
Bank Sarasin & CIE.
Banque Bruxelles Lambert (Switzerland) S.A.
Dai-Ichi Kangyo Bank (Schweiz) AG
Dresdner Bank (Schweiz) AG
Liechtensteinische Landesbank Aktiengesellschaft
The Industrial Bank of Japan (Switzerland) Limited
ABN Amro Bank (Schweiz)
Banca del Gottardo
Bank Cial (Schweiz)
Bank von Ernst & CIE AG
Lloyds Bank plc
Societe Generale Bank & Trust
Bdl Banco di Lugano
Coop Bank
Finter Bank Zurich
Fuji Bank (Schweiz) AG
Rud, Blass & CIE AG
Banca del Sempione
Bank Adamas AG
Bank Linth
Handelsfinanz-CCF Bank
Luzerner Landbank AG
New Japan Bank (Schweiz) AG
Sparkasse Schwyz
The mailing address for the above underwriters is: 5, Stauffacherstrasse, 8004 Zurich, Switzerland.
C. The following were the underwriters in the Company's issuance in February 1997 of 100 million of 6.875% Pound Sterling Notes due February 2000:
Merrill Lynch International
Banca del Gottardo
Citibank International plc
Darier, Hentsch & Cie, Geneva
Hambros Bank Limited
HSBC Markets
Paribas Capital Markets
SBC Warburg
Barclays de Zoete Wedd Limited
Credit Suisse First Boston
Dresdner Kleinwort Benson
HFT (GUERNSEY) LTD
Lehman Brothers
Salomon Brothers International Limited
UBS Limited
Union Bancaire Privee
The mailing address for the above underwriters is: 25 Ropemaker Street, London
ECZY 9LY.
D. The following were the underwriters in the Company's issuance in December, 1989 of $500 million of 8 3/8% Debentures due 2020:
Merrill Lynch Capital Markets
The First Boston Corporation
Salomon Brothers Inc.
The mailing address for the above underwriters is: North Tower, World Financial Center, New York, New York 10281-1209.
E. The following were the underwriters in the Company's issuance in April 1997 of 6.625% EuroNotes due April 2001:
Credit Suisse First Boston (Europe) Limited
Banca del Gottardo
Banque Bruxelles Lambert S.A./Bank Brussels Lambert
Banque Nationale de Paris London Branch
Citibank International plc
Deutsche Bank AG London
Dresdner Bank Aktiengesellschaft
Goldman Sachs International
Lehman Brothers International (Europe)
Merrill Lynch International
Salomon Brothers International Limited
Swiss Bank Corporation
UBS Limited
The mailing address for the above underwriters is: One Cabot Square, London
E14 4QJ.
F. The following were the underwriters in the Company's issuance in July 1997 of 6.25% Notes due July 2000:
Credit Suisse First Boston (Europe) Limited Deutsche Bank AG London Tokyo-Mitsubishi International plc Dresdner Bank Aktiengesellschaft Credit Suisse First Boston (Europe) Limited Darier, Hentsch & Cie Swiss Bank Corporation Goldman Sachs International UBS Limited Heritage Finance & Trust Co. ABN AMRO Bank N.V. J.P. Morgan Securities Ltd. Banca del Gottardo Lehman Brothers International (Europe) Banque Bruxelles Lambert S.A. Salomon Brothers International Limited Banque Nationale de Paris London Branch Merrill Lynch International Banque Paribas CIBC Wood Gundy plc Citibank International plc Commerzbank Aktiengesellschaft |
The mailing address for the above underwriters is: 25 Ropemaker Street, London
EC2Y 9LY.
Title of Class Amount Authorized Amount Outstanding ------------------ ------------------ ------------------ Common Stock 900,000,000 shares 570,000 $.10 par value Preferred Stock, 200,000,000 shares none no par value |
The Company's Common Stock is entitled to one vote per share in the election of directors and other matters, except that, generally, any shareowner, or shareowners acting as a group, who beneficially own more than 10% of the Company's voting stock are entitled to only one one-hundreth of a vote with respect to each vote in excess of 10% of the voting power of the then- outstanding shares of voting stock. The Common Stock does not have preemptive or other right to subscribe to additional shares. The Preferred Stock does not have voting rights.
ACTUAL --------------- (000'S OMITTED) LONG-TERM DEBT 8 3/8% debentures, due April 2020............................................................. $ 700,000 Commercial Paper.............................................................................. 592,786 5.50% Eurobond notes, due January 1999........................................................ 200,852 Industrial development bonds, Philadelphia Airport facilities, due December 2015.............. 100,000 Capital lease obligations, due 2007--2009..................................................... 558,743 3.25% 200 million Swiss Franc notes, due October 1999......................................... 166,000 6.875% 100 million Pound Sterling notes, due February 2000.................................... 165,503 6.625% EuroNotes, due April 2001.............................................................. 200,000 6.25% EuroNotes, due July 2000................................................................ 298,537 Installment notes, mortgages and bonds........................................................ 57,994 ---------- Less current maturities..................................................................... 40,039 Less commercial paper to be repaid.......................................................... 70,000 ---------- Total Long-Term Debt..................................................................... 2,930,376 ---------- SHAREOWNERS' EQUITY Preferred stock, no par value, authorized 200,000,000 shares, none issued.................................................. --- Common Stock, par value $.10 per share, authorized 900,000,000 shares, outstanding 570,000,000 shares............................... 57,000 Additional paid-in capital.................................................................... 95,406 Retained earnings............................................................................. 6,130,145 Cumulative foreign currency adjustments....................................................... (67,640) ---------- Total Shareowners' Equity................................................................ 6,214,911 ---------- $9,145,287 ========== |
For purposes of this Section 8, the "Indenture" shall refer to the Indenture, dated as of December 18, 1997, by and between United Parcel Service of America, Inc. and Citibank, N.A., as Trustee (the "Trustee"). Other capitalized but otherwise undefined terms shall have the meanings ascribed thereto in the Indenture or the Offering Circular.
(A) EVENTS OF DEFAULT
The Indenture defines an Event of Default with respect to New 2030 Debentures as being any one of the following events: (a) default in the payment of any interest on the New 2030 Debentures when due, and the continuance of such default for a period of 30 days; (b) default in the payment of principal of or any premium on the New 2030 Debentures at the date on which such principal becomes due and payable as provided in the Security or in the Indenture, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise; (c) default in the deposit of any sinking fund payment, when and as due on the New 2030 Debentures; (d) default in the performance or breach of any covenant or warranty a default in performance or breach of which is specifically dealt with in the Indenture) and the continuance of such default or breach for a period of 60 days after written notice as provided in the Indenture; or (e) certain events involving bankruptcy, insolvency or reorganization.
The Indenture provides that if any Event of Default specified therein shall occur and be continuing with respect to the New 2030 Debentures, other than an Event of Default involving bankruptcy, insolvency or reorganization, either the Trustee or the Holders of 25% in principal amount of the outstanding New 2030 Debentures may declare the principal of the New 2030 Debentures to be due and payable. If an Event of Default described in clause (e) above with respect to the New 2030 Debentures at the time outstanding shall occur, the principal amount of all of the New 2030 Debentures will automatically, and without any action by the Trustee or any Holder, become immediately due and payable. The Holders of a majority in aggregate principal amount of the New 2030 Debentures may, on behalf of all Holders of New 2030 Debentures, waive any past default under the Indenture with respect to the New 2030 Debentures, except a default (a) in the payment of principal of, or any premium or interest on, any Security, and (b) in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Security.
No Holder of a Security will have any right to institute any proceeding with respect to the Indenture, or for the appointment of a receiver or a trustee, or for any other remedy thereunder, unless (i) such Holder has previously given to the Trustee written notice of a continuing Event of Default with respect to the New 2030 Debentures, (ii) the Holders of at least 25% in aggregate principal amount of the Outstanding New 2030 Debentures has made written request to the
Trustee to institute such proceeding as trustee (iii) the Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request, (iv) the Trustee has failed to institute such proceeding, and has not received from the Holders of a majority in aggregate principal amount of the outstanding New 2030 Debentures a direction inconsistent with such request, within 60 days after such notice, request and offer. However, such limitations do not apply to a suit instituted by a Holder of a Security for the enforcement of payment of the principal of or any premium or interest on such Security on or after the applicable due date specified in such Security.
(B) AUTHENTICATION AND DELIVERY
The New 2030 Debentures shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, under the Company's corporate seal reproduced thereon and attested by the Secretary or one of the Assistant Secretaries. Upon proper delivery of New 2030 Debentures to the Trustee for authentication, the Trustee shall authenticate and deliver such securities. The Indenture does not contain provisions regarding the application of the proceeds from issuance of the New 2030 Debentures.
(C) RELEASE OF PROPERTY SUBJECT TO LIEN
The Company's obligations under the New 2030 Debentures are not secured by any liens or security interests on any assets of the Company. Accordingly, the Indenture does not contain any provisions with respect to the release or the release and substitution of any property subject such a lien.
(D) SATISFACTION AND DISCHARGE
The Indenture shall cease to be of further effect, after certain actions are taken, when (1) either: (i) all the New 2030 Debentures have been delivered to the Trustee for cancellation, or (ii) all New 2030 Debentures have (or will within one year) become due and payable or are to be redeemed within one year, and the Company has deposited in trust funds sufficient to pay off and discharge such outstanding New 2030 Debentures; (2) the Company has paid all other sums required to be paid under the Indenture; and (3) the Company has delivered an appropriate opinion of counsel.
(E) EVIDENCE OF COMPLIANCE WITH CONDITIONS AND COVENANTS
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a Certificate stating whether or not the Company has fulfilled all its obligations under the Indenture throughout the year, and if a default has occurred, providing details at to the circumstances of such default(s). If one or more Events of Default occurs under the Indenture, the Company shall also deliver to the Trustee a Certificate specifying such event or other action within five Business Days of its occurrence.
No other person is an obligor with respect to the New 2030 Debentures.
This application for qualification comprises:
(a) Pages numbered one to _____________, consecutively;
(b) The statement of eligibility and qualification of the Trustee under the Indenture to be qualified (on Form T-1);
(c) The following exhibits, in addition to those filed as a part of the statement of eligibility and qualification of the trustee:
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Company, United Parcel Service of America, Inc., a corporation organized and existing under the laws of the State of Delaware, has duly caused this application to be signed on its behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the city of Atlanta, and State of Georgia, on the 18th day of December, 1997.
(SEAL) UNITED PARCEL SERVICE OF AMERICA, INC. By: /s/ Ned J. Winsor ------------------------------------ Name: Ned J. Winsor ---------------------------------- Title: Assistant Treasurer - Corporate ------------------------------- Finance ------- Attest: /s/ Catherine Harrison ----------------------------- Name: Catherine Harrison ------------------------------- Title: ------------------------------ |
Exhibit T3C
UNITED PARCEL SERVICE OF AMERICA, INC.
AND
CITIBANK, N.A.
Trustee
INDENTURE
Dated as of December 18, 1997
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
Trust Indenture Act Section Indenture Section (S) 310 (a)(1)........................ 6.09 (a)(2)........................ 6.09 (a)(3)........................ Not Applicable (a)(4)........................ Not Applicable (b)........................... 6.08 6.10 (S) 311 (a)........................... 6.13 (b)........................... 6.13 (S) 312 (a)........................... 7.01 (b)........................... 7.02 (c)........................... 7.02 7.02 (S) 313 (a)........................... 7.03 (b)........................... 7.03 (c)........................... 7.03 (d)........................... 7.03 (S) 314 (a)........................... 7.04 (a)(4)........................ 1.01 10.04 (b)........................... Not Applicable (c)(1)........................ 1.02 (c)(2)........................ 1.02 (c)(3)........................ Not Applicable (d)........................... Not Applicable (e)........................... 1.02 (S) 315 (a)........................... 6.01 (b)........................... 6.02 (c)........................... 6.01 (d)........................... 6.01 (e)........................... 5.14 (S) 316 (a)........................... 1.01 (a)(1)(A)..................... 5.02 5.12 (a)(1)(B)..................... 5.13 (a)(2)........................ Not Applicable (b)........................... 5.08 (c)........................... 1.04 (S) 317 (a)(1)........................ 5.03 (a)(2)........................ 5.04 (b)........................... 10.03 (S) 318 (a)........................... 1.07 ____________________ |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
PAGE
SECTION 1.01. Definitions.............................................. 1 SECTION 1.02. Compliance Certificates and Opinions..................... 14 SECTION 1.03. Form of Documents Delivered to Trustee................... 14 SECTION 1.04. Acts of Holders; Record Dates............................ 15 SECTION 1.05. Notices, Etc., to Trustee and Company.................... 17 SECTION 1.06. Notice to Holders; Waiver................................ 18 SECTION 1.07. Conflict with Trust Indenture Act........................ 18 SECTION 1.08. Effect of Headings and Table of Contents................. 18 SECTION 1.09. Successors and Assigns................................... 19 SECTION 1.10. Separability Clause...................................... 19 SECTION 1.11. Benefits of Indenture.................................... 19 SECTION 1.12. Governing Law............................................ 19 SECTION 1.13. Legal Holidays........................................... 19 |
ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally.......................................... 19 SECTION 2.02. Form of Face of Security................................. 20 SECTION 2.03. Form of Reverse of Security.............................. 22 SECTION 2.04. Form of Legend for Global Securities..................... 27 SECTION 2.05. Form of Trustee's Certificate of Authentication.......... 27 |
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series..................... 28 SECTION 3.02. Denominations............................................ 31 SECTION 3.03. Execution, Authentication, Delivery and Dating........... 31 SECTION 3.04. Temporary Securities..................................... 32 SECTION 3.05. Registration, Registration of Transfer and Exchange ..... 33 SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities......... 35 SECTION 3.07. Payment of Interest; Interest Rights Preserved........... 36 SECTION 3.08. Persons Deemed Owners.................................... 38 SECTION 3.09. Cancelation.............................................. 38 SECTION 3.10. Computation of Interest.................................. 38 SECTION 3.11. CUSIP Numbers............................................ 38 |
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture................. 38
SECTION 4.02. Application of Trust Money.............................. 40
ARTICLE V
REMEDIES
SECTION 5.01. Event of Default....................................... 40 SECTION 5.02. Acceleration of Maturity; Rescission and Annulment..... 42 SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee................................................ 43 SECTION 5.04. Trustee May File Proofs of Claim....................... 44 SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities............................................. 44 SECTION 5.06. Application of Money Collected......................... 44 SECTION 5.07. Limitation on Suits.................................... 45 SECTION 5.08. Unconditional Right of Holder to Receive Principal, Premium and Interest................................... 45 SECTION 5.09. Restoration of Rights and Remedies..................... 46 SECTION 5.10. Rights and Remedies Cumulative......................... 46 SECTION 5.11. Delay or Omission Not Waiver........................... 46 SECTION 5.12. Control by Holders..................................... 46 SECTION 5.13. Waiver of Past Defaults................................ 47 SECTION 5.14. Undertaking for Costs.................................. 47 SECTION 5.15. Waiver of Usury, Stay or Extension Laws................ 47 |
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities................... 48 SECTION 6.02. Notice of Defaults.................................... 48 SECTION 6.03. Certain Rights of Trustee............................. 48 SECTION 6.04. Not Responsible for Recitals or Issuance of Securities 50 SECTION 6.05. May Hold Securities................................... 50 SECTION 6.06. Money Held in Trust................................... 50 SECTION 6.07. Compensation and Reimbursement........................ 50 SECTION 6.08. Conflicting Interests................................. 51 SECTION 6.09. Corporate Trustee Required; Eligibility............... 51 SECTION 6.10. Resignation and Removal; Appointment of Successor..... 52 SECTION 6.11. Acceptance of Appointment by Successor................ 54 SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.............................................. 55 SECTION 6.13. Preferential Collection of Claims Against Company..... 55 SECTION 6.14. Appointment of Authenticating Agent................... 55 |
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders............................................... 57
SECTION 7.02. Preservation of Information; Communications to Holders 58
SECTION 7.03. Reports by Trustee.................................... 58
SECTION 7.04. Reports by Company.................................... 58
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc, Only on Certain Terms... 59
SECTION 8.02. Successor Substituted................................. 59
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders... 60 SECTION 9.02. Supplemental Indentures With Consent of Holders...... 61 SECTION 9.03. Execution of Supplemental Indentures................. 63 SECTION 9.04. Effect of Supplemental Indentures.................... 63 SECTION 9.05. Conforming with Trust Indenture Act.................. 63 SECTION 9.06. Reference in Securities to Supplemental Indentures... 63 |
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.......... 63 SECTION 10.02. Maintenance of Office or Agency..................... 64 SECTION 10.03. Money for Securities Payments to Be Held in Trust... 64 SECTION 10.04. Statement by Officers as to Default................. 65 SECTION 10.05. Existence........................................... 66 SECTION 10.06. Limitation on Secured Debt.......................... 66 SECTION 10.07. Limitation on Sale and Leaseback Transactions....... 66 SECTION 10.08. Waiver of Certain Covenants......................... 67 SECTION 10.09. Calculation of Original Issue Discounts............. |
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article............................... 67 SECTION 11.02. Election to Redeem; Notice to Trustee.................. 68 SECTION 11.03. Selection by Trustee of Securities to Be Redeemed...... 68 SECTION 11.04. Notice of Redemption................................... 69 SECTION 11.05. Deposit of Redemption Price............................ 70 SECTION 11.06. Securities Payable on Redemption Date.................. 70 SECTION 11.07. Securities Redeemed in Part............................ 70 |
ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article............................... 71 SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.. 71 SECTION 12.03. Redemption of Securities for Sinking Fund.............. 71 |
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Company's Option to Effect Defeasance or Covenant Defeasance............................................. 72 SECTION 13.02. Defeasance and Discharge............................... 72 SECTION 13.03. Covenant Defeasance.................................... 73 SECTION 13.04. Conditions to Defeasance or Covenant Defeasance........ 73 SECTION 13.05. Deposited Money and U.S. Government 73 Obligations to Be Held in Trust; Miscellaneous Provisions........................ 76 SECTION 13.06. Reinstatement.......................................... 76 |
INDENTURE, dated as of December 18, 1997, between UNITED PARCEL SERVICE OF AMERICA, INC., a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company"), having its principal executive office at 55 Glenlake Parkway N.E., Atlanta, Georgia 30328, and CITIBANK, N.A., a national banking association duly incorporated and existing under the laws of the United States of America, as Trustee (herein called the "Trustee");
W I T N E S S E T H :
WHEREAS 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; and
WHEREAS all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
(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 meaning assigned to them in accordance
with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this instrument;
(4) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Indenture; and
(5) 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.
"Act", when used with respect to any Holder, has the meaning specified in Section 1.04.
"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 corresponding to the foregoing.
"Attributable Debt" means, as of the date of its determination, the present value (discounted semiannually at an interest rate of 7.0% per annum) of the obligation of a lessee for rental payments pursuant to any Sale and Leaseback Transaction (reduced by the amount of the rental obligations of any sublessee of all or part of the same property) during the remaining term of such Sale and Leaseback Transaction (including any period for which the lease relating thereto has been extended), such rental payments not to include amounts payable by the lessee for maintenance and repairs, insurance, taxes, assessments and similar charges and for contingent rents (such as those based on sales). In the case of any Sale and Leaseback Transaction in which the lease is terminable by the lessee upon the payment of a penalty, such rental payments shall be considered for purposes of this definition to be the lesser of (a) the rental payments to be paid under such Sale and Leaseback Transaction until the first date (after the date of such determination) upon which it may be so terminated plus the then applicable penalty upon such termination and (b) the rental payments required to be paid during the
remaining term of such Sale and Leaseback Transaction (assuming such termination provision is not exercised).
"Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of the Company or committee of that board duly authorized to act for it in respect hereof.
"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 or executive order to close.
"Capitalized Lease Obligation" means any obligation to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real or personal property that is required to be classified and accounted for as a capital lease obligation under generally accepted accounting principles, and, for the purposes of this Indenture, the amount of such obligation at any date shall be the capitalized amount thereof at such date, determined in accordance with such principles.
"Capital Stock", as applied to the stock of any corporation, means the capital stock of every class whether now or hereafter authorized, regardless of whether such capital stock shall be limited to a fixed sum or percentage with respect to the rights of the holders thereof to participate in dividends and in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of such corporation.
"Certificate" means a certificate signed by a duly authorized signatory of the Company and delivered to the Trustee.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means at any date, the total assets appearing on the most recently prepared consolidated balance sheet of the Company and the Subsidiaries as of the end of a fiscal quarter of the Company, prepared in accordance with generally accepted accounting principles, less (a) all current liabilities as shown on such balance sheet and (b) Intangible assets. "INTANGIBLE ASSETS" means the value (net of any applicable reserves), as shown on or reflected in such balance sheet, of: (i) all trade names, trademarks, licenses, patents, copyrights and goodwill; (ii) organizational and development costs; (iii) deferred charges (other than prepaid items such as insurance, taxes, interest, commissions, rents and similar items and tangible assets being amortized); and (iv) unamortized debt discount and expense, less unamortized premium.
"Corporate Trust Office" means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 111 Wall Street, 5th Floor, New York, New York 10045, Attention: Corporate Agency and Trust Department, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company).
"Corporation" means a corporation, association, company, joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 13.03.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 13.02.
"Depositary" means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 3.01.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934 and any applicable statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.04.
"Funded Debt" means any indebtedness maturing more than one year from the date of issuance thereof, including any indebtedness renewable or extendible at the option of the obligor to a date later than one year from the date of the original issuance thereof.
"Global Security" means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 2.04 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).
"Holder" means a Person in whose name a Security is registered in the Security Register.
"Indebtedness" means (a) any liability of any Person (1) for borrowed
money, or under any reimbursement obligation relating to a letter of credit, or
(2) evidenced by a bond, note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind or with services incurred in
connection with capital expenditures (other than a trade payable or a current
liability arising in the ordinary course of business), or (3) for the payment of
money relating to a Capitalized Lease Obligation, or (4) for Interest Rate
Protection Obligations; (b) any liability of others described in the preceding
clause (a) that the Person has guaranteed or that is otherwise its legal
liability; and (c) any amendment, supplement, modification, deferral, renewal,
extension or refunding of any liability of the types referred to in clauses (a)
and (b) above.
"Indenture" means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term "Indenture" shall also include the terms of particular series of Securities established as contemplated by Section 3.01.
"Interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
"Interest Rate Protection Obligations" of any Person means the obligations of such Person pursuant to any arrangement with any other Person whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such Person calculated by applying a floating rate of interest on the same notional amount.
"Investment Company Act" means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
"Liens" means any mortgage, lien, pledge, security interest, charge or encumbrance.
"Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.01(4) or 5.01(5).
"Opinion of Counsel" means a written opinion of counsel, who may be an employee of or counsel for the Company, or other counsel reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding", when used with respect to Securities, means, as of the date of determination, all
(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancelation;
(3) Securities as to which Defeasance has been effected pursuant to
Section 13.02; and
(4) Securities which have been paid pursuant to Section 3.06 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;
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, waiver or other action, only Securities which a Responsible Officer of the Trustee actually 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 Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity.
"Place of Payment", when used with respect to any Security, means the place or places where the principal of and any premium and interest on that Security are payable as specified pursuant to this Indenture.
"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 3.06 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.
"Principal Property" means any land, land improvements, buildings and associated factory, distribution, laboratory and office equipment (excluding any products marketed by the Company or any Subsidiary) constituting a distribution facility, operating facility, manufacturing facility, development facility, warehouse facility, service facility or office facility (including any portion thereof), which facility (a) is owned by or leased to the Company or any Restricted Subsidiary, (b) is located within the United States and (c) has an acquisition cost plus capitalized improvements in excess of 0.50% of Consolidated Net Tangible Assets as of the date of such determination, other than (i) any such facility, or portion thereof, which has been financed by obligations issued by or on behalf of a State, a Territory or a possession of the United States, or any political subdivision of any of the foregoing, or the District of Columbia, the interest on which is excludable from gross income of the holders thereof
(other than a "substantial user" of such facility or a "related Person" as those terms are used in Section 103 of the Internal Revenue Code of 1986, as amended (the "Code")) pursuant to the provisions of Section 103 of the Code (or any similar provision hereafter enacted) as in effect at the time of issuance of such obligations, (ii) any such facility which the Board of Directors may by Board Resolution declare is not of material importance to the Company and the Restricted Subsidiaries taken as a whole and (iii) any such facility, or portion thereof, owned or leased jointly or in common with one or more Persons other than the Company and any Subsidiary and in which the interest of the Company and all Subsidiaries does not exceed 50%.
"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 pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any Vice President, Assistant Vice President, Senior Trust Officer, trust officer or any other officer associated with the Corporate Agency and Trust Department of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject of the Trustee assigned and authorized by it to administer its corporate trust matters.
"Restricted Securities" means any shares of the capital stock or Indebtedness of any Restricted Subsidiary.
them, or (y) engaged in the business of financing the assets and operations of third parties, and (z) in any case, not, except as incidental to such financing business, engaged in owning, leasing or operating any property which but for this proviso would qualify as Principal Property or (B) any Subsidiary acquired or organized after December 18, 1997, for the purpose of acquiring the stock or business or assets of any Person other than the Company or any Restricted Subsidiary, whether by merger, consolidation, acquisition of stock or assets or similar transaction analogous in purpose or effect, so long as such Subsidiary does not acquire by merger, consolidation, acquisition of stock or assets or similar transaction analagous in purpose or effect all or any substantial part of the business or assets of the Company or any Restricted Subsidiary; and (b) any other Subsidiary which is hereafter designated by the Board of Directors as a Restricted Subsidiary.
"Sale and Leaseback Transaction" means any arrangement with any Person providing for the leasing by the Company or any Restricted Subsidiary of any Principal Property (whether such Principal Property is now owned or hereafter acquired) that has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person, other than (a) temporary leases for a term, including renewals at the option of the lessee, of not more than three years; (b) leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries; and (c) leases of Principal Property executed by the time of, or within 180 days after the latest of, the acquisition, the completion of construction or improvement (including any improvements on property which will result in such property becoming Principal Property), or the commencement of commercial operation of such Principal Property.
"Secured Indebtedness" means (a) Indebtedness of the Company or a Restricted Subsidiary which is secured by any Lien upon any Principal Property or Restricted Securities and (b) Indebtedness of the Company or a Restricted Subsidiary in respect of any conditional sale or other title retention agreement covering Principal Property or Restricted Securities; but "Secured Indebtedness" shall not include any of the following:
(i) Indebtedness of the Company and the Restricted Subsidiaries outstanding on December 18, 1997, secured by then existing Liens upon, or incurred in connection with conditional sales agreements or other title retention agreements with respect to, Principal Property or Restricted Securities;
(ii) Indebtedness which is secured by (A) purchase money Liens upon Principal Property acquired after December 18, 1997
(iii) Indebtedness which is secured by Liens on Principal Property or Restricted Securities, which Liens exist at the time of acquisition (by any manner whatsoever) of such Principal Property or Restricted Securities by the Company or a Restricted Subsidiary;
(iv) Indebtedness of Restricted Subsidiaries owing to the Company or any other Restricted Subsidiary and Indebtedness of the Company owing to any Restricted Subsidiary;
(v) In the case of any corporation which becomes (by any manner ? whatsoever) a Restricted Subsidiary after December 18, 1997, Indebtedness which is secured by Liens upon, or conditional sale agreements or other title retention agreements with respect to, its property which constitutes Principal Property or Restricted Securities, which Liens exist at the time such corporation becomes a Restricted Subsidiary;
(vi) Guarantees by the Company of Secured Indebtedness and Attributable Debt of any Restricted Subsidiaries and guarantees by a Restricted Subsidiary
of Secured Indebtedness and Attributable Debt of the Company and any other Restricted Subsidiaries;
(vii) Indebtedness arising from any Sale and Leaseback Transaction;
(ix) Indebtedness secured by Liens on aircraft, airframes or aircraft engines, aeronautic equipment or computers and electronic data processing equipment; and
In no event shall the foregoing provisions be interpreted to mean or their operation to cause the same Indebtedness to be included more than once in the calculation of "Secured Indebtedness" as that term is used in this Indenture.
"Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any applicable statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which, at the time of determination, the Company and/or one or more Subsidiaries owns or controls directly or indirectly more than 50% of the shares of voting stock. "WHOLLY OWNED", when used with reference to a Subsidiary, means a Subsidiary of which all of the outstanding capital stock is owned by the Company or by one or more wholly owned Subsidiaries. "VOTING STOCK", when used with reference to a Subsidiary, means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such corporation provided that, for the purposes hereof, stock which carries only the right to vote conditionally on the happening of an event shall not be considered voting stock whether or not such event shall have happened.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, and any applicable statute successor thereto, in each case as amended from time to time.
"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.
"U.S. Government Obligation" has the meaning specified in Section 13.04.
"Vice President", when used with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president".
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 10.04) 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.
Any 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 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.
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.
The ownership of Securities shall be proved by the Security Register.
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.
taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company's expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Agency and Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal executive office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
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.
Table of Contents are for convenience only and shall not affect the construction hereof.
ARTICLE II
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 Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution or indenture supplemental hereto, 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 3.03 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.
UNITED PARCEL SERVICE OF AMERICA, INC.
No. $
CUSIP No._________
interest shall be payable on demand]. 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 set 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 and any overdue premium shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. [Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of % per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]
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.
UNITED PARCEL SERVICE OF AMERICA, INC.
Attest:
[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 each 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 [if
applicable,
insert--on or after , 19 ], 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 [if applicable, insert--on or before , % and if redeemed] during the 12-month period beginning , of the years indicated,
Year Redemption Price Year Redemption 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 each year commencing with the year and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert--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 Redemption Price For For Redemption Otherwise Redemption Through Than Through Operation of the Operation of the Year Sinking Fund 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.]
[If applicable, insert--Notwithstanding the foregoing, the Company may not, prior to , redeem any Securities of this series as contemplated by [if applicable, insert--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.]
[If applicable, insert--The sinking fund for this series provides for
the redemption (on and ending with the year and ending with the year of
[if applicable insert--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 [if applicable, insert--mandatory] sinking fund payments
may be credited against subsequent [if applicable, insert--mandatory] sinking
fund payments otherwise required to be made [if applicable, insert--, in the
inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert--In the event of redemption of this Security in part only, a new Security or Securities of this series and
of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancelation hereof.]
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
[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 of (i) the amount of principal so declared due and payable and (ii) interest on any overdue principal, premium and 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 premium and interest, if any, on the Securities of this series shall terminate.]
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 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.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made a written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall affect or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations 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 any premium and interest 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 and of like tenor, 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. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor 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.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE DATED AS OF DECEMBER 18, 1997 BETWEEN UNITED PARCEL SERVICE OF AMERICA, INC. AND CITIBANK, N.A., AS TRUSTEE (THE "INDENTURE") AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Dated: ____________________
This is one of the Securities of the series designated herein referred to in the Indenture.
CITIBANK, N.A.,
as Trustee
ARTICLE III
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution or 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 Securities of any other series);
(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 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03, 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 any Securities of the series is payable;
(5) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and interest on any 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 any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which
any election by the Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any 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 any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of "Outstanding" in Section 1.01;
(12) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02;
(14) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the
Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any specified part shall be defeasible pursuant to Section 13.02 and that certain covenants of the Company shall be defeasible pursuant to Section 13.03 and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities or covenants shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 2.04 and
any circumstances in addition to or in lieu of those set forth in Clause
(2) of the last paragraph of Section 3.05 in which any such Global Security
may be exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered, in
the name or names of Persons other than the Depositary for such Global
Security or a nominee thereof;
(17) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
(18) any addition to or change in the covenants set forth in Article X which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(5)).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above or indenture supplemental hereto referred to above.
If any of the terms of the series are established by action taken pursuant to a Board Resolution or indenture supplemental hereto, 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 3.03 for the authentication and delivery of such Securities.
Securities bearing the manual or facsimile signatures of individuals who were at the time of execution 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. 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 6.01) shall be fully protected in relying upon
(a) A copy of the resolution or resolutions of the Board of Directors in or pursuant to which the terms and form of the Securities were established, 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 as of the date of such certificate, and if the terms and form of such Securities are established by a Certificate pusuant to general authorization of the Board of Directors, such Certificate;
(b) an executed supplemental indenture, if any;
(c) a Certificate delivered in accordance with Section 1.02; and
(d) an Opinion of Counsel which shall state:
(1) that the form of such Securities does not violate or conflict with the provisions of this Indenture;
(2) that the terms of such Securities do not violate or conflict with the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and
(4) that all laws and requirements in respect of the execution and delivery by the Company of such Securities have been complied with.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the record of action, the Company Order and Opinion of Counsel otherwise required thereby at or prior to the authentication of each Security of such series, if such documents (with appropriate modifications) 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 cancelation as provided in Section 3.09, 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.
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 cancelation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company 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 like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustees shall authenticate and deliver, the Securities which the Holder is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his 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 3.04, 9.06 or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (B) 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.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 3.01.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
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 agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and 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 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.
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 given to each Holder of Securities of such series in the manner set forth in Section 1.06, 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.
ARTICLE IV
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancelation; or
(B) all such Securities not theretofore delivered to the Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancelation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee a Certificate and an Opinion of Counsel, which opinion may be given in all circumstances by an employee of or counsel for the Company, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Not withstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Company to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive.
ARTICLE V
(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 any premium 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 or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which 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 a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order 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 of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of 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 to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that series.
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 any 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 all amounts owing the Trustee under Section 6.07; and
(2) all Events of Default with respect to Securities of that series, other than the non-payment 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 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the 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 any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium 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 all amounts owing the Trustee under Section 6.07.
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.
FIRST: To the payment of all amounts due the Trustee under Section 6.07; and
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium 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 any premium and interest, respectively.
(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 itself 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.
unconditional, to receive payment of the principal of and any premium and (subject to Section 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
conferred on the Trustee, with respect to the Securities of such series;
(1) such direction shall not be in conflict with any rule of law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(3) such direction shall not involve the Trustee in personal liability or be unjustly prejudicial to Holders not joining therein (it being understood that the Trustee shall have no responsibility to determine such prejudice).
(1) in the payment of the principal of or any premium or interest on any Security of such series; or
(2) in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
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 usury, 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
(1) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution,
certificate statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Certificate, Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon a Certificate;
(4) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it hereunder.
(8) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; and
(1) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except to the extent that any
such
expense, disbursement or advance may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee (which for purposes of this Section 6.07 shall include its directors, officers, employees and agents) for, and to defend and hold it harmless against, any and all loss, damages claim, liability or expense, including taxes (other than taxes based on the income of the Trustee) arising out of or in connection with the acceptance or administration of the trust or trusts hereunder or the performance of its duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or bad faith.
To secure the Company's payment of obligations in this Section 6.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest and any premium on particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(5) or Section 5.01(6), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or other similar law.
The Company's payment obligations pursuant to this Section 6.07 shall survive the discharge of this Indenture and the resignation, removal or replacement of the Trustee.
"Trustee" for purposes of this Section 6.07 includes the Trustee, every predecessor Trustee, any Paying Agent, Authenticating Agent, Registrar or other agent of the Company or the Trustee appointed hereunder, but the negligence or bad faith of any such person shall not affect the rights of any other such person under this Section 6.07.
as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, 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 with respect to the Securities of any series 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.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series, with or without cause, 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. If the instrument or acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice or removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jursidiction for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
(1) the Trustee shall fail to comply with Section 6.08 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 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to Section 5.14, 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.
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 reason, 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 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the 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 6.11, 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 6.11, 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.
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 to all Holders of Securities of such series in the manner provided in Section 1.06. 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.
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 the 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 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.
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 the first or second preceding paragraph, as the case may be.
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.
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 authorities. 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.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. 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 Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
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 alternative certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred to in the Indenture.
Dated:
CITIBANK, N.A.,
As Trustee
ARTICLE VII
(1) semiannually, not later than March 31 and September 30 in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of the preceding March 16 or September 15, as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is furnished;
The rights of 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.
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.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the date of this Indenture deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
A copy of each such report shall at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Certificates).
ARTICLE VIII
(1) either (a) the Company shall be the continuing corporation or (b) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer, or lease, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Notes and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Company or any Subsidiary in connection with or as a result of such transaction as having been incurred at the time of such transaction), no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing;
(3) the Company or such Person has delivered to the Trustee a Certificate and an Opinion of Counsel, as to which opinion counsel may rely on the Certificate as to factual matters, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for or relating to such transaction have been satisfied.
Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or the successor Person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor had been named as the Company herein; and thereafter, except in the case of a lease, the Company shall be discharged from all obligations and covenants under this Indenture, the Agency Agreement and the Securities.
ARTICLE IX
(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 for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such 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, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more
(6) to secure the Securities pursuant to the requirements of Section 10.06 or otherwise; or
(7) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or
(10) to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act, provided such action shall not adversely affect the interest of Holders of Securities of any series in any material respect.
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 installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change any Place of Payment when, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
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.
ARTICLE X
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 or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
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 or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company, 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.
(1) The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, a Certificate signed by the principal executive, principal financial or principal accounting officer of the Company stating whether or not, after a review under each signer's supervision of the activities of the Company during such year and of the Company's performance under this Indenture, to the best knowledge, based on such review, of the signers thereof, the Company has fulfilled all its obligations under this Indenture throughout such year, and, if there has been a default in the fulfillment of any such obligation, specifying each default and the nature and status thereof.
(2) When any 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 the Trustee or any Holder or the Trustee for or the holder of any other evidence of Indebtedness of the Company or any Subsidiary gives any notice or takes any other action with respect to a claimed default, the Company shall deliver to the Trustee by registered or certified mail or by telegram, telex or facsimile transmission a Certificate specifying such event, notice or other action within five Business Days of its occurrence.
to be outstanding pursuant to such Sale and Leaseback Transaction, (ii) all Attributable Debt then outstanding pursuant to all other Sale and Leaseback Transactions entered into by the Company after December 18, 1997, or entered into by a Restricted Subsidiary after December 18, 1997 or, if later, the date on which it became a Restricted Subsidiary, and (iii) the aggregate of all Secured Indebtedness then outstanding (not including in this computation Secured Indebtedness if the Securities are secured equally and ratably with (or prior to) such Secured Indebtedness) would not exceed 10% of Consolidated Net Tangible Assets or (b) an amount equal to the greater of (i) the net proceeds to the Company or the Restricted Subsidiary of the sale of the Principal Property sold and leased back pursuant to such Sale and Leaseback Transaction and (ii) the amount of Attributable Debt to be outstanding pursuant to such Sale and Leaseback Transaction is applied to the retirement of Funded Debt of the Company or any Restricted Subsidiaries (other than Funded Debt which is subordinate to the Securities or which is owing to the Company or any Restricted Subsidiaries) within 180 days after the consummation of such Sale and Leaseback Transaction.
ARTICLE XI
Section 3.01 for such Securities) in accordance with this Article.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in the case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
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.
All notices of redemption shall identify the Securities to be redeemed (including CUSIP number(s)) and shall state:
(1) the Redemption Date;
(2) the Redemption Price and any accrued interest;
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities the principal amounts) of the particular Securities to be redeemed and, if a single Security is to be partially redeemed, the principal amount of such Security to be redeemed;
(4) that on the Redemption Date the Redemption Price and any accrued interest 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 (unless the Company shall default in the payment of the Redemption Price and accrued interest);
(5) the place or places where each such Security is to be surrendered for payment of the Redemption Price and any accrued interest; and
(6) 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 and shall be irrevocable.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
of like tenor, of any authorized denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
The minimum amount of any sinking fund payment provided for by the
terms of any Securities 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 such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, the cash amount of
any sinking fund payment may be subject to reduction as provided in Section
12.02. Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.
of the next ensuing sinking fund payment for such Securities pursuant to the
terms of such Securities, 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 pursuant to Section 12.02 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
prior to 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 11.03 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 11.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.
ARTICLE XIII
Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the Company's obligations with respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 13.03 applied to such Securities.
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such
(2) In the event of an election to have Section 13.02 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 13.03 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Section 5.01(5) and
(6), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act.
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee a Certificate and an Opinion of Counsel, which opinion may be given in all circumstances by an employee of or counsel for the Company, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 13.04 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
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.
UNITED PARCEL SERVICE OF AMERICA, INC.
by [SEAL] ------------------------------- Title Attest: -------------------------------- Assistant Secretary CITIBANK, N.A., as Trustee [SEAL] by ----------------------------- Title: Attest: -------------------------------- Title: |
79 STATE OF ) ) ss.: COUNTY OF ) |
On the day of , before me personally came , to me known, who, being by me duly sworn, did depose and say that he is of United Parcel Service of America, Inc. one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority.
STATE OF ) ) ss.: COUNTY OF ) On the day of , before me personally came , |
to me known, who, being by me duly sworn, did depose and say that he is of Citibank, N.A., one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority.
NOTICE OF GUARANTEED DELIVERY
IN RESPECT OF
8 3/8% DEBENTURES DUE 2020
OF
UNITED PARCEL SERVICE OF AMERICA, INC.
PURSUANT TO THE OFFERING CIRCULAR
DATED DECEMBER 18, 1997
The Exchange Agent for the Exchange Offer is:
CITIBANK, N.A.
By Mail: By Overnight Courier Delivery: By Hand: Citibank, N.A. Citibank, N.A. Citibank, N.A. c/o Citicorp Data Distribu- c/o Citicorp Data Distribu- Corporate Trust Window tion, Inc. tion, Inc. 111 Wall Street, 5th Floor P.O. Box 7072 404 Sette Drive New York, New York 10043 Paramus, New Jersey 07653 Paramus, New Jersey 07652 |
Facsimile for Eligible Institutions:
(201) 262-3240
Facsimile Confirmation Only:
(800) 422-2077
For information:
(800) 422-2077
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR TRANSMISSION VIA FACSIMILE TO A NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE VALID DELIVERY.
As set forth in the Offering Circular dated December 18, 1997 (as it may be supplemented and amended from time to time, the "Offering Circular") of United Parcel Service of America, Inc. (the "Company") under "The Exchange Offer-- Guaranteed Delivery Procedures," and in the Instructions to the related Letter of Transmittal (the "Letter of Transmittal"), this form, or one substantially equivalent hereto, or an Agent's Message relating to the guaranteed delivery procedures, must be used to accept the Company's offer (the "Exchange Offer") to exchange any and all of its outstanding 8 3/8% Debentures Due 2020 (the "Old 2020 Debentures"), for Debentures Due 2030 (the "New 2030 Debentures"), if time will not permit the Letter of Transmittal, certificates representing such Old 2020 Debentures and other required documents to reach the Exchange Agent, or the procedures for book-entry transfer cannot be completed, on or prior to the Expiration Date (as defined herein).
This form must be delivered by an Eligible Institution (as defined herein) by facsimile transmission, mail or hand delivery to the Exchange Agent as set forth above. If a signature on the Letter of Transmittal is required to be guaranteed by a Medallion Signature Guarantor under the instructions thereto, such signature guarantee must appear in the applicable space provided in the Letter of Transmittal. This form is not to be used to guarantee signatures.
Questions and requests for assistance and requests for additional copies of the Offering Circular may be directed to the Exchange Agent at the address above. Beneficial owners may also contact their broker, dealer, commercial bank, trust company, or other nominee for assistance concerning the Exchange Offer.
LADIES AND GENTLEMEN:
The undersigned hereby tender(s) to the Company, upon the terms and subject to the conditions set forth in the Offering Circular and the Letter of Transmittal (receipt of which is hereby acknowledged), the principal amount of the Old 2020 Debentures specified below pursuant to the guaranteed delivery procedures set forth in the Offering Circular under "The Exchange Offer-- Guaranteed Delivery Procedures" and in Instruction 2 to the Letter of Transmittal. The undersigned hereby authorizes the Exchange Agent to deliver this Notice of Guaranteed Delivery to the Company with respect to the Old 2020 Debentures tendered pursuant to the Exchange Offer.
The undersigned understands that Old 2020 Debentures will be exchanged only after timely receipt by the Exchange Agent of (i) such Old 2020 Debentures, or a Book-Entry Confirmation, and (ii) a Letter of Transmittal (or a manually signed facsimile thereof), including by means of an Agent's Message, of the transfer of such Old 2020 Debentures into the Exchange Agent's account at the Book-Entry Transfer Facility, with respect to such Old 2020 Debentures, properly completed and duly executed, with any signature guarantees and any other documents required by the Letter of Transmittal within three New York Stock Exchange trading days after the execution hereof. The undersigned also understands that the method of delivery of this Notice of Guaranteed Delivery and any other required documents to the Exchange Agent is at the election and sole risk of the Holder, and the delivery will be deemed made only when actually received by the Exchange Agent.
THE UNDERSIGNED UNDERSTANDS THAT TENDERS OF OLD 2020 DEBENTURES WILL BE ACCEPTED ONLY IN DENOMINATIONS OF $1,000 OR AN INTEGRAL MULTIPLE THEREOF. THE UNDERSIGNED ALSO UNDERSTANDS THAT TENDERS OF OLD 2020 DEBENTURES MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE.
All authority conferred or agreed to be conferred by this Notice of Guaranteed Delivery shall not be affected by, and shall survive, the death or incapacity of the undersigned, and every obligation of the undersigned under this Notice of Guaranteed Delivery shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal and legal representatives, successors and assigns of the undersigned.
All capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Offering Circular.
PLEASE SIGN AND COMPLETE --------------------------------------- --------------------------------------- Signature(s) of Holder(s) or Date: Authorized Signatory: ----------------------------- -------------- Address: --------------------------- ------------------------------------ ----------------------------------- ------------------------------------ Area Code and Telephone No: Name(s) of Holder(s): ------- --------------- ----------------------------------- ------------------------------------ ------------------------------------ If Debentures will be delivered by book-entry transfer, check book- Principal Amount of Old 2020 entry transfer facility below: Debentures Tendered: ---------------- [_] The Depository Trust Company ------------------------------------ Account No. Certificate No.(s) of Old 2020 ------------------------ Debentures (if available): --------- --------------------------------------- --------------------------------------- |
Please print name(s) and address(es)
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member of the Securities Transfer Agents Medallion Program, the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program (each, an "Eligible Institution"), hereby (i) represents that the above-named persons are deemed to own the Old 2020 Debentures tendered hereby within the meaning of Rule 14e-4 promulgated under the Securities Exchange Act of 1934, as amended ("Rule 14e-4"), (ii) represents that such tender of Old 2020 Debentures complies with Rule 14e-4 and (iii) guarantees that the Debentures tendered hereby are in proper form for transfer (pursuant to the procedures set forth in the Offering Circular under "The Exchange Offer--Guaranteed Delivery Procedures"), and that the Exchange Agent will receive (a) such Old 2020 Debentures, or a Book-Entry Confirmation of the transfer of such Old 2020 Debentures into the Exchange Agent's account at the Book-Entry Transfer Facility and (b) a properly completed and duly executed Letter of Transmittal or manually signed facsimile thereof (or Agent's message) with any required signature guarantees and any other documents required by the Letter of Transmittal within three New York Stock Exchange trading days after the date of execution hereof.
The Eligible Institution that completes this form must communicate the guarantee to the Exchange Agent and must deliver the Letter of Transmittal and Notes to the Exchange Agent within the time period shown herein. Failure to do so could result in a financial loss to such Eligible Institution.
CROSS REFERENCE SHEET
This Cross Reference Sheet pertains to Sections 310 through 318(a) of the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Section Indenture Section --------------- ----------------- (S) 310 (a)(1)........................ 6.09 (a)(2)........................ 6.09 (a)(3)........................ Not Applicable (a)(4)........................ Not Applicable (b)........................... 6.08 6.10 (S) 311 (a)........................... 6.13 (b)........................... 6.13 (S) 312 (a)........................... 7.01 (b)........................... 7.02 (c)........................... 7.02 7.02 (S) 313 (a)........................... 7.03 (b)........................... 7.03 (c)........................... 7.03 (d)........................... 7.03 (S) 314 (a)........................... 7.04 (a)(4)........................ 1.01 10.04 (b)........................... Not Applicable (c)(1)........................ 1.02 (c)(2)........................ 1.02 (c)(3)........................ Not Applicable (d)........................... Not Applicable (e)........................... 1.02 (S) 315 (a)........................... 6.01 (b)........................... 6.02 (c)........................... 6.01 (d)........................... 6.01 (e)........................... 5.14 (S) 316 (a)........................... 1.01 (a)(1)(A)..................... 5.02 5.12 (a)(1)(B)..................... 5.13 (a)(2)........................ Not Applicable (b)........................... 5.08 (c)........................... 1.04 (S) 317 (a)(1)........................ 5.03 (a)(2)........................ 5.04 (b)........................... 10.03 (S) 318 (a)........................... 1.07 |
Exhibit 99
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee pursuant to Section 305 (b)(2) ____
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
UNITED PARCEL SERVICE OF AMERICA, INC.
(Exact name of obligor as specified in its charter)
Delaware 95-1732075 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 55 Glenlake Parkway N.E. Atlanta, Georgia 30328 (Address of principal executive offices) (Zip Code) ------------------------- 8 3/8% Debentures due 2030 (Title of the indenture securities) |
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
Name Address ---- ------- Comptroller of the Currency Washington, D.C. Federal Reserve Bank of New York New York, NY 33 Liberty Street New York, NY Federal Deposit Insurance Corporation Washington, D.C. |
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of Eligibility.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to commence business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as of September 30, 1997 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York and State of New York, on the 17th day of December, 1997.
CITIBANK, N.A.
By /s/Carol Ng ----------- Carol Ng Vice President |
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York, at the close of business on September 30,
1997, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
ASSETS Thousands of dollars Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin ........................... $ 6,529,000 Interest-bearing balances ........................... 12,319,000 Held-to-maturity securities ......................... 0 Available-for-sale securities ....................... 28,477,000 Federal funds sold and securities purchased under agreements to resell ............................ 11,422,000 Loans and lease financing receivables: Loans and Leases, net of unearned income .................. $ 151,679,000 LESS: Allowance for loan and lease losses ................. 4,253,000 ------------- Loans and leases, net of unearned income, allowance, and reserve ..................................... 147,426,000 Trading assets ...................................... 31,496,000 Premises and fixed assets (includ- ing capitalized leases) ......................... 3,380,000 Other real estate owned ............................. 651,000 Investments in unconsolidated subsidiaries and associated companies ....................................... 1,284,000 Customers' liability to this bank on acceptances outstanding ...................... 2,023,000 Intangible assets ................................... 177,000 Other assets ........................................ 8,745,000 ------------- TOTAL ASSETS ........................................ $ 253,929,000 ============= LIABILITIES Deposits: In domestic offices ............................. $ 35,919,000 Noninterest-bearing............... $12,462,000 Interest-bearing ................. 23,457,000 ------------- In foreign offices, Edge and Agreement subsidiaries, and IBFs ............................................ 138,955,000 Noninterest-bearing............... 9,790,000 Interest-bearing.................. 129,165,000 ------------- Federal funds purchased and securities sold under agreements to repurchase ........................ 6,161,000 Trading liabilities ................................. 24,966,000 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less .................................... 9,351,000 With a remaining maturity of more than one year through three years ............... 2,916,000 With a remaining maturity of more than three years ................................ 915,000 Bank's liability on acceptances executed and outstanding......................... 2,024,000 Subordinated notes and debentures ...................................... 5,400,000 Other liabilities ................................... 9,856,000 ------------- TOTAL LIABILITIES ................................... $ 236,463,000 ============= EQUITY CAPITAL Perpetual preferred stock and related surplus ............................. 0 Common stock ........................................ $ 751,000 Surplus ............................................. 7,387,000 Undivided profits and capital re- serves .......................................... 9,254,000 Net unrealized holding gains (losses) on available-for-sale securities ................ 737,000 Cumulative foreign currency translation adjustments ......................... (663,000) ------------- TOTAL EQUITY CAPITAL ................................ $ 17,466,000 ============= TOTAL LIABILITIES, LIMITED- LIFE PREFERRED STOCK, AND EQUITY CAPITAL .................................. $ 253,929,000 ============= |
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to the correctness of this Report of Condition. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS