As filed with the Securities and Exchange Commission on November 5, 1999
Registration No. 333-85947
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE ESTEE LAUDER COMPANIES INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2408943
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
767 Fifth Avenue
New York, New York 10153
(212) 572-4200
(Address, including zip code, and telephone number, including
area code, of registrants' principal executive office)
Paul E. Konney, Esq.
Senior Vice President,
General Counsel and Secretary
The Estee Lauder Companies Inc.
767 Fifth Avenue
New York, New York 10153
(212) 572-4200
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With a copy to:
Jeffrey J. Weinberg, Esq.
Matthew Bloch, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), other than securities
offered only in connection with dividend or interest reinvestment plans, please
check the following box: [ X ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
600207 v.19
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Subject to completion, dated November 5, 1999
PRELIMINARY PROSPECTUS
$400,000,000
[LOGO] THE ESTEE LAUDER COMPANIES INC.
DEBT SECURITIES
We intend to offer and sell from time to time, in one or more series,
debt securities in amounts, at prices and on terms to be determined by market
conditions at the time of the offering. We will not use this prospectus to sell
debt securities with an aggregate offering price of more than $400,000,000.
We will provide specific terms for the securities we offer in
supplements to this prospectus, including:
o designation;
o aggregate principal amount or aggregate initial offering price;
o maturity;
o rate and times of payment of interest, if any; and
o other specific terms.
YOU SHOULD READ THIS PROSPECTUS AND THE RELATED SUPPLEMENTS TO THIS
PROSPECTUS CAREFULLY BEFORE YOU INVEST IN THE SECURITIES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
This prospectus may not be used to consummate sales of securities
unless accompanied by a prospectus supplement.
This prospectus is dated ______________, 1999.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
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TABLE OF CONTENTS
PAGE
ABOUT THIS PROSPECTUS.........................................................3
WHERE YOU CAN FIND MORE INFORMATION...........................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................3
FORWARD-LOOKING INFORMATION...................................................4
THE COMPANY...................................................................5
RATIO OF EARNINGS TO FIXED CHARGES............................................7
USE OF PROCEEDS...............................................................7
SELECTED CONSOLIDATED FINANCIAL INFORMATION...................................8
DESCRIPTION OF THE DEBT SECURITIES...........................................10
DESCRIPTION OF CAPITAL STOCK.................................................16
PLAN OF DISTRIBUTION.........................................................20
LEGAL MATTERS................................................................20
EXPERTS .....................................................................21
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission (the "Commission") utilizing a
"shelf" registration process. Under this shelf registration process, we may sell
the securities described in this prospectus in one or more offerings up to a
total amount of $400,000,000. This prospectus provides you with a general
description of the securities we intend to offer. Each time we sell securities
we will provide a prospectus supplement that will contain specific information
about the terms of the offering and the securities. The prospectus supplement
may also add, update or change information contained in this prospectus. Any
statement that we make in this prospectus will be modified or superseded by any
inconsistent statement made by us in a prospectus supplement. You should read
both this prospectus and the related prospectus supplements together with
additional information described under the heading "Where You Can Find More
Information" and the information we incorporate by reference in this prospectus
described under the heading "Incorporation of Certain Documents by Reference."
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"). As a result, we file reports and
other information with the Commission. You may read and copy the reports and
other information we file with the Commission at the Commission's public
reference facilities at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549. You may obtain information on the operation of the
public reference facilities by calling the Commission at 1-800-SEC-0330. You may
also obtain information about us from the following regional offices of the
Commission: 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7
World Trade Center, 13th Floor, New York, New York 10048. Copies of these
materials can be obtained at prescribed rates. Our filings with the Commission
are also available on the Commission's home page on the Internet at
http://www.sec.gov.
We have filed with the Commission a registration statement on Form
S-3. This prospectus, which is a part of the registration statement, omits
certain information contained in the registration statement. Statements made in
this prospectus as to the contents of any contract, agreement or other document
are not necessarily complete. With respect to each contract, agreement or other
document filed as an exhibit to the registration statement, we refer you to that
exhibit for a more complete description of the matter involved, and each
statement is deemed qualified in its entirety by that reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the
information we file with the Commission. This permits us to disclose important
information to you by referencing these filed documents. We incorporate by
reference in this prospectus the following documents which have been filed with
the Commission:
(i) our Annual Report on Form 10-K for the fiscal year ended June 30,
1999; and
(ii) our Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1999.
We also incorporate by reference all documents filed pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and prior to the termination of this offering.
We will promptly provide without charge to you, upon written or oral
request, a copy of any or all of the documents incorporated by reference in this
prospectus, other than exhibits to those documents, unless the exhibits are
specifically incorporated by reference in those documents. Requests should be
directed to Investor Relations Department, The Estee Lauder Companies Inc., 767
Fifth Avenue, New York, New York 10153, telephone number (212) 572-4184.
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FORWARD-LOOKING INFORMATION
We and our representatives from time to time make written or oral
forward looking statements, including statements contained in this and other
filings with the Commission and in our reports to stockholders. The words and
phrases "will likely result," "expects," "believes," "will continue," "is
anticipated," "estimates," "projects" or similar expressions are intended to
identify "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. Such statements include, without
limitation, our expectations regarding sales, earnings or other future financial
performance and liquidity, product introductions, entry into new geographic
regions and future operations or operating results. Although we believe that our
expectations are based on reasonable assumptions within the bounds of our
knowledge of our business and operations, we cannot assure that actual results
will not differ materially from our expectations. Factors that could cause
actual results to differ from expectations include, without limitation:
(i) increased competitive activity from companies in the
skin care, makeup, fragrance and hair care businesses, some of which
have greater resources than we do;
(ii) our ability to develop, produce and market new
products on which future operating results may depend;
(iii) consolidations and restructurings in the retail
industry causing a decrease in the number of stores that sell our
products, an increase in the ownership concentration within the
retail industry or ownership of retailers by our competitors or
ownership of competitors by our customers that are retailers;
(iv) shifts in the preferences of consumers as to where and
how they shop for beauty and related products;
(v) social, political and economic risks to our foreign
manufacturing, distribution and retail operations, including changes
in foreign investment and trade policies and regulations of the host
countries and of the United States;
(vi) changes in the laws, regulations and policies,
including changes in accounting standards, that affect, or will
affect, us in the United States and abroad;
(vii) foreign currency fluctuations affecting our results
of operations and the value of our foreign assets, the relative
prices at which we and our foreign competitors sell our products in
the same market and our operating and manufacturing costs outside of
the United States;
(viii) changes in global economic conditions that could
affect the cost and availability of capital to the Company, which may
be needed for new equipment, facilities or acquisitions;
(ix) shipment delays, depletion of inventory and increased
production costs resulting from disruptions of operations at any of
the facilities which, due to consolidations in our manufacturing
operations, now manufacture nearly all of our supply of a particular
type of product (i.e., focus factories);
(x) real estate rates and availability, which may affect
our ability to increase the number of retail locations at which we
sell our products;
(xi) changes in product mix to products which are less
profitable;
(xii) our ability and the ability of third parties,
including customers, suppliers and governmental entities, to
adequately address Year 2000 issues; and
(xiii) our ability to integrate acquired businesses and
realize value therefrom.
We assume no responsibility to update forward-looking statements made
herein or otherwise.
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THE COMPANY
The Estee Lauder Companies Inc., founded in 1946 by Estee and Joseph
Lauder, is one of the world's leading manufacturers and marketers of quality
skin care, makeup, fragrance and hair care products. Our products are sold in
over 100 countries and territories under the following well-recognized brand
names: Estee Lauder, Clinique, Aramis, Prescriptives, Origins, MoAoC, Bobbi
Brown essentials, jane, Aveda, Stila and Jo Malone. We are also the global
licensee for fragrances and cosmetics sold under the Tommy Hilfiger and Donna
Karan brands. Each brand is distinctly positioned within the cosmetics market.
We are a pioneer in the cosmetics industry and believe we are a
leader in the industry due to the global recognition of our brand names, our
leadership in product innovation, our strong market position in key geographic
markets and the consistently high quality of our products. We sell our products
principally through limited distribution channels to complement the images
associated with our brands. These channels, encompassing over 9,000 points of
sale, consist primarily of upscale department stores, specialty retailers,
upscale perfumeries and pharmacies and, to a lesser extent, free-standing
company stores, stores on cruise ships, in-flight and duty free shops in
airports and cities. We believe that our strategy of pursuing limited
distribution strengthens our relationships with retailers, enables our brands to
be among the best selling product lines at the stores and heightens the
aspirational quality of our brands. With the acquisitions of jane and Aveda in
fiscal 1998, we broadened our distribution to include new channels, namely
self-select outlets and salons. We also began selling Clinique products
(November 1998) and Origins products (July 1999) directly to consumers over the
internet.
PRODUCTS
SKIN CARE--Our broad range of skin care products addresses various
skin care needs for women and men. These products include moisturizers, creams,
lotions, cleansers, sun screens and self tanning products, a number of which are
developed for use on particular areas of the body, such as the face, the hands
or the eye area. Skin care products accounted for approximately 32% and 35% of
our net sales in the three months ended September 30, 1999 and our fiscal 1999,
respectively.
MAKEUP--We manufacture, market and sell a full array of makeup
products including lipsticks, mascaras, foundations, eyeshadows, nail polishes
and powders. Many of the products are offered in an extensive array of shades
and colors. We also sell related items such as compacts, brushes and other
makeup tools. Makeup products accounted for approximately 37% and 36% of our net
sales in the three months ended September 30, 1999 and our fiscal 1999,
respectively.
FRAGRANCE--We offer a variety of fragrance products for women and
men. The fragrances are sold in various forms, including eau de parfum sprays
and colognes, as well as lotions, powders, creams and soaps that are based on a
particular fragrance. They also include bath and aromatherapy products.
Fragrance products accounted for approximately 28% and 26% of our net sales in
the three months ended September 30, 1999 and our fiscal 1999, respectively.
HAIR CARE--We increased the range and depth of our hair care product
offerings with the acquisition of the Aveda business in December 1997. Hair care
products include shampoo, conditioner, styling gel and hairspray. Hair care
products accounted for approximately 2% of our net sales in each of the three
months ended September 30, 1999 and our fiscal 1999.
Given the generally personal nature of our products and the wide
array of consumer preferences and tastes, as well as the competition for the
attention of consumers, our strategy has been to market and promote our products
through distinctive brands seeking to address broad preferences and tastes. Each
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brand has a single global image that is promoted with consistent logos,
packaging and advertising designed to enhance its image and differentiate it
from other brands.
ESTEE LAUDER--Estee Lauder brand products, which have been sold since
1946, are positioned as luxurious, classic and aspirational. We believe that
Estee Lauder brand products are technologically advanced and innovative and have
a worldwide reputation for excellence. The broad product line principally
consists of skin care, makeup and fragrance products that are presented in high
quality packaging.
CLINIQUE--First introduced in 1968, Clinique skin care and makeup
products are all allergy tested and 100% fragrance free and have been designed
to address individual skin types and needs. The products are based on the
research and related expertise of leading dermatologists. Clinique skin care
products are generally marketed as part of the Three-Step System: Cleanse,
Exfoliate, Moisturize. In the fall of 1997, we launched Clinique Happy, a
fragrance, and in September 1999, we launched Clinique Happy for Men. Since
November 1998 we have been selling Clinique products directly to consumers over
the Internet.
ARAMIS--We pioneered the marketing of prestige men's grooming and
skin care products and fragrances with the introduction of Aramis products in
1964. Aramis continues to offer one of the broadest lines of prestige men's
products and has extended the line to include fragrances for women.
PRESCRIPTIVES--We developed and introduced Prescriptives in 1979.
Prescriptives is positioned as a color authority with an advanced collection of
highly individualized products primarily addressing the makeup and skin care
needs of contemporary women with active lifestyles. The products are
characterized by simple concepts, minimalist design and an innovative image and,
through a system of color application and extensive range of makeup shades,
accommodate a diverse group of consumers.
ORIGINS--Origins, our most recent internally-developed brand, was
introduced in 1990. It is positioned as a plant-based cosmetics line of skin
care, makeup and aromatherapy products that combine time-tested botanical
ingredients with modern science to promote total well-being. Origins sells its
products through stand-alone Origins stores, stores-within-stores (which are
designed to replicate the Origins store environment within a department store),
at traditional retail counters and, since July 1999, directly to consumers over
the Internet.
TOMMY HILFIGER--We have an exclusive global license arrangement to
develop and market a line of men's and women's fragrances and cosmetics under
the Tommy Hilfiger brand. In 1995, we launched a men's fragrance, tommy, with
cologne and aftershave products, and in the fall of 1996, we launched a women's
fragrance, tommy girl. In the summer of 1999, we launched Tommy Hilfiger
Freedom, which consists of separate fragrances for men and women. These
fragrances, together with our complementary line of face, body and hair
products, are available at "tommy's shops", a separate area within department
stores dedicated to promoting all of our Tommy Hilfiger licensed products.
M-A-C--M-A-C products comprise a broad line of color-oriented,
professional cosmetics and professional makeup tools targeting makeup artists
and fashion-conscious consumers. The products are sold through a limited number
of department and specialty stores and stand-alone M-A-C stores. We acquired
Make-Up Art Cosmetics Limited, the manufacturer of M-A-C products, in three
stages; in December 1994, March 1997 and February 1998.
BOBBI BROWN ESSENTIALS--In October 1995, we acquired the Bobbi Brown
essentials line of color cosmetics, professional makeup brushes and skin care
products. Bobbi Brown products are manufactured to our specifications, primarily
by third parties, and sold through a limited number of department and specialty
stores. In March 1998, we introduced the brand's first fragrance, bobbi.
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JANE --In October 1997, we acquired Sassaby, Inc., the owner of the
jane brand of color cosmetics targeted to the young consumer market. jane
products are currently distributed only in the United States through the
self-select distribution channel.
DONNA KARAN COSMETICS--In November 1997, we obtained the exclusive
global license to develop and market a line of fragrances and other cosmetics
under the Donna Karan New York and DKNY trademarks. We are continuing to market
and sell certain products that were originally sold by The Donna Karan Company.
We launched the first DKNY women's fragrance under the license in September
1999, and we plan a national rollout and the launch of the DKNY men's fragrance
later in fiscal 2000.
AVEDA--We acquired the Aveda business in December 1997. Aveda, a
prestige hair care leader, is a manufacturer and marketer of plant-based hair,
skin, makeup and body care products. The products are principally sold by us
through third-party distributors and are available in salons and stand-alone
Aveda Environmental Lifestyle stores.
STILA--In August 1999, we acquired the business of Los-Angeles-based
Stila Cosmetics, Inc. Stila is known for its stylish, wearable makeup products
and eco-friendly packaging and has developed a following among young,
fashion-forward consumers. These products are currently available in limited
distribution in the United States and certain foreign countries.
JO MALONE--We acquired London-based Jo Malone Limited in October
1999. Jo Malone is known for its prestige skin care, fragrance and hair care
products showcased at the flagship store in London. Products are also available
through a company catalogue and at a very limited group of specialty stores in
the United States and Canada.
In addition to the foregoing brands, we manufacture and sell La Mer
skin care products, including Creme De La Mer, and fragrances under the Kiton
name (for which we are a licensee). These products are marketed separately from
our other brands.
We have been controlled by the Lauder family since the founding of
our company. Members of the Lauder family, some of whom are our directors,
executive officers and/or employees, beneficially own, directly or indirectly,
as of October 22, 1999, shares of Class A Common Stock and Class B Common Stock
having approximately 93.3% of the outstanding voting power of our Common Stock.
Our principal executive offices are located at 767 Fifth Avenue, New
York, New York 10153. The telephone number at that location is (212) 572-4200.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of our earnings to fixed charges was 6.29:1, 5.65:1,
5.49:1, 5.58:1, 5.71:1, 2.55:1, and 3.40:1 for the three months ended September
30, 1999 and 1998 and for the fiscal years ended June 30, 1999, 1998, 1997, 1996
and 1995, respectively. The ratio of earnings to fixed charges has been computed
by dividing earnings before income taxes and fixed charges before preferred
stock dividends by the fixed charges. This ratio includes the earnings and fixed
charges of The Estee Lauder Companies Inc. and its consolidated subsidiaries;
fixed charges consist of interest and related charges on debt, preferred stock
dividends and the portion of rentals for real and personal properties in an
amount deemed to be representative of the interest factor.
USE OF PROCEEDS
Unless otherwise provided in a prospectus supplement, we will use the
net proceeds from the sale of the securities offered by this prospectus and the
related prospectus supplements for our general corporate purposes, which may
include repayment of indebtedness, acquisitions, working capital and capital
expenditures.
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SELECTED CONSOLIDATED FINANCIAL INFORMATION
The following income statement and balance sheet information has been
derived from our consolidated financial statements as of and for the three month
periods ended September 30, 1999 and September 30, 1998 and as of and for each
of the years in the five-year period ended June 30, 1999. You should read this
information along with our consolidated financial statements and the related
notes incorporated in this prospectus by reference. See "Incorporation of
Certain Documents by Reference." The results of interim periods are not
necessarily indicative of results that may be expected for the full year.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED JUNE 30,
---------------------------- ----------------------------------------------------
1999 1998 1999 1998 1997 1996 1995
---- ---- ---- ---- ---- ---- ----
(UNAUDITED) (IN MILLIONS, EXCEPT PER SHARE AND RATIO DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS DATA:
Net Sales......................... $1,093.7 $997.0 $3,961.5 $3,618.0 $3,381.6 $3,194.5 $2,899.1
Gross profit...................... 841.9 767.4 3,061.6 2,798.5 2,616.5 2,463.5 2,224.3
Operating income.................. 136.5 121.6 456.9 409.1 359.1 310.3 230.9
Earnings before income taxes
and minority interest.......... 131.1 115.5 440.2 402.8 362.9 313.0 233.0
Net earnings...................... 82.6 71.6 272.9 236.8 197.6 160.4 121.2
Preferred stock dividends......... 5.9 5.9 23.4 23.4 23.4 57.5 25.3
Net earnings attributable to
common stock................... 76.7 65.7 249.5 213.4 174.2 102.9 95.9
OTHER DATA:
Earnings before interest, taxes,
depreciation and amortization
(EBITDA)(a).................... 170.5 151.3 $574.2 $506.6 $435.1 $369.1 $272.9
Ratio of earnings to fixed
charges (b).................... 6.29:1 5.65:1 5.49:1 5.58:1 5.71:1 2.55:1 3.40:1
PER SHARE DATA:
Net earnings per common
share(c)(e):
Basic.......................... 0.32 0.28 $1.05 $0.90 $0.74 $0.59(d) --
Diluted........................ 0.32 0.27 $1.03 $0.89 $0.73 $0.59(d) --
Weighted average common
shares outstanding (c)(e):
Basic.......................... 237.5 237.0 237.0 236.8 235.4 232.6(d) --
Diluted........................ 242.6 240.2 241.2 239.5 237.1 233.2(d) --
Cash dividends declared per
common share(e):............... $.05 $.0425 $.1775 $.17 $.17 $.085 --
</TABLE>
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<TABLE>
<CAPTION>
AT
SEPTEMBER AT JUNE 30,
----------------------------------------------------------------
30, 1999 1999 1998 1997 1996 1995
-------- ---- ---- ---- ---- ----
(UNAUDITED) (IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working Capital......................... $680.4 $ 708.0 $ 617.2 $ 551.6 $ 467.5 $ 469.6
Total assets............................ 2,926.6 2,746.7 2,512.8 1,873.1 1,779.4 1,701.4
Total debt.............................. 536.8 429.1 436.5 31.1 127.5 194.0
Redeemable preferred stock.............. 360.0 360.0 360.0 360.0 360.0 360.0
Stockholders' equity.................... 989.0 924.5 696.4 547.7 394.2 335.1
- ----------
(a) Earnings before interest, taxes, depreciation and amortization ("EBITDA")
is an additional measure of operating performance used by management.
EBITDA, like operating income, does not include the effects of interest and
taxes and additionally excludes the "non-cash" effects of depreciation and
amortization on current earnings. While the components of EBITDA may vary
from company to company, we exclude our minority interest adjustment, all
depreciation charges related to property, plant and equipment and all
amortization charges including amortization of goodwill, purchased royalty
rights, leasehold improvements and other intangible assets. We consider
EBITDA useful in analyzing our results; however, it is not intended to
replace, or act as a substitute for, any presentation included in the
consolidated financial statements prepared in conformity with generally
accepted accounting principles.
(b) For purposes of determining the ratio of earnings to fixed charges,
earnings are defined as income before income taxes, plus fixed charges
before preferred stock dividends. Fixed charges consist of interest and
related charges on debt, preferred stock dividends and the portion of
rentals for real and personal properties in an amount deemed to be
representative of the interest factor.
(c) In December 1997, we adopted the provisions of SFAS No. 128, "Earnings Per
Share," which requires the presentation of both Basic and Diluted earnings
per common share. Consistent with the requirements of SFAS No. 128, net
earnings per common share and weighted average common shares outstanding
have been restated for purposes of comparability.
(d) Due to the change in the capital structure effected by our recapitalization
in connection with our initial public offering in fiscal 1996, historical
share and per share data for the fiscal year ended June 30, 1995 are not
presented. Net earnings per common share and weighted average common shares
outstanding for the year ended June 30, 1996 are reflected on a pro forma
basis as if the recapitalization was effected at the beginning of fiscal
1996.
(e) On April 26, 1999, our Board of Directors approved a two-for-one stock
split in the form of a 100% stock dividend on all of our outstanding Common
Stock. The stock dividend was paid on June 2, 1999 to all holders of record
of shares of our Common Stock at the close of business on May 10, 1999. All
share and per share data presented in this prospectus has been restated to
reflect the stock split.
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DESCRIPTION OF THE DEBT SECURITIES
We may offer the debt securities from time to time as senior debt or
subordinated debt. The debt securities will be issued under an indenture that we
will enter into with the party to be named in a prospectus supplement as trustee
under the indenture. The terms of the indenture are also governed by certain
provisions of the Trust Indenture Act of 1939.
The debt securities may be issued from time to time in one or more
series. The particular terms of each series which is offered by a prospectus
supplement will be described in the related prospectus supplement.
We have summarized the material terms of the indenture below. The
form of the indenture has been filed as an exhibit to the registration
statement. See "Where You Can Find More Information." You should read the
indenture for provisions that may be important to you. Whenever we refer in this
prospectus or in the related prospectus supplement to particular sections or
defined terms contained in the indenture, those sections or defined terms are
incorporated by reference in this prospectus or the related prospectus
supplement, as applicable.
GENERAL
The indenture will provide that debt securities in separate series
may be issued by us from time to time without limitation as to aggregate
principal amount. We may specify a maximum aggregate principal amount for the
debt securities of any series. We will determine the terms and conditions of the
debt securities, including the maturity, principal and interest, but those terms
must be consistent with the indenture. The debt securities will be unsecured
obligations of our company.
A prospectus supplement will set forth the following terms of, and
information relating to, the debt securities:
(1) the title of the debt securities;
(2) whether the debt securities are senior debt securities or
subordinated debt securities and, if subordinated debt
securities, the subordination terms relating to those securities;
(3) whether any of our subsidiaries will provide guarantees of the
debt securities;
(4) the aggregate principal amount of the debt securities (or
principal amount at maturity);
(5) the dates on which the principal amount of the debt securities
will be payable;
(6) the interest rate, if any, which the debt securities will bear
and the interest payment dates for the debt securities (or the
date on which the debt securities accrete interest);
(7) the places where payments on the debt securities will be payable;
(8) any terms upon which the debt securities may be redeemed, in
whole or in part, at our option;
(9) any provisions that would obligate us to deposit money in an
account for the benefit of the holder of the debt securities for
payments of principal and interest on the debt securities or
other provisions that would obligate us to repurchase or
otherwise redeem the debt securities;
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(10) the portion of the principal amount, if less than all, of the
debt securities which will be payable upon declaration of
acceleration of the maturity of the debt securities;
(11) whether the debt securities are defeasible;
(12) any addition to or change in the events of default;
(13) the date or dates on which the debt securities may be converted
or exchanged at the option of the holder into other securities of
our company;
(14) any addition to or change in the covenants in the indenture
applicable to any of the debt securities; and
(15) any other material terms of the debt securities not inconsistent
with the provisions of the indenture.
If a series of debt securities is denominated in a currency or
currency unit other than United States dollars, the prospectus supplement will
specify the denomination in which the debt securities will be issued and the
coin or currency in which the principal and any premium or interest on those
debt securities will be payable. In addition, special United States federal
income tax or other considerations applicable to any debt securities which are
denominated in a currency or currency unit other than United States dollars may
be described in the applicable prospectus supplement.
The debt securities may be sold at a substantial discount below their
principal amount. Special United States federal income tax considerations
applicable to debt securities sold at an original issue discount may be
described in the applicable prospectus supplement.
FORM, EXCHANGE AND TRANSFER
The debt securities of each series may be issued in fully registered
or bearer form, without coupons, and, unless otherwise specified in the
applicable prospectus supplement, only in denominations of $1,000 and integral
multiples of $1,000.
Subject to the terms of the indenture and the limitations applicable
to global securities, debt securities may be presented for exchange or for
registration of transfer, endorsed or with the form of transfer endorsed on the
securities executed, at the office of the security registrar or at the office of
any transfer agent designated by us for this purpose. No service charge will be
made for any registration of transfer or exchange of debt securities, but we may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection with that transfer or exchange. The security
registrar or transfer agent will make the transfer or exchange when it is
satisfied with the documents of title and identity of the person making the
request. The security registrar and/or transfer agent initially designated by us
for any debt securities will be named in the applicable prospectus supplement.
We may at any time designate additional transfer agents, rescind the designation
of any transfer agent or approve a change in the office through which any
transfer agent acts. We will always be required to maintain a transfer agent in
each place of payment for the debt securities of each series.
If we decide to partially redeem the debt securities of any series
(or of any series and specified terms), we will not be required to issue,
register the transfer of or exchange those debt securities being redeemed during
a period beginning at the opening of business 15 days before the day of
selection for redemption of debt securities of that series and ending at the
close of business on the day we mail the notice of redemption with respect to
those debt securities selected for redemption.
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We will describe any material United States federal income tax
consequences specifically applicable to any debt securities and/or their plan of
distribution in the prospectus supplement relating to those debt securities.
MERGER, CONSOLIDATION AND SALE OF ASSETS
The indenture will provide that we may not consolidate with or merge
into, or convey, transfer or lease our properties and assets substantially as an
entirety to any Person (as defined in the indenture), unless:
(1) the successor Person, if any, is a corporation, partnership,
limited liability company, trust or other entity organized and
validly existing under the laws of the United States and assumes
our obligations on the debt securities and under the indenture;
(2) immediately after giving effect to the 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; and
(3) certain other conditions, including any additional conditions
with respect to any particular debt securities specified in the
applicable prospectus supplement, are met.
These provisions apply only to a merger or consolidation in which we
are not the surviving corporation and to sales, conveyances, leases and
transfers by us as transferor or lessor.
If we consolidate with or merge into any other Person or we sell,
convey, transfer or lease our properties and assets substantially as an entirety
to any Person in accordance with the preceding paragraph, the successor Person
formed by the consolidation or merger or to which the sale, conveyance, transfer
or lease is made will be substituted for us under the indenture with the same
effect as if the successor Person had originally executed the indenture. In the
event of any conveyance or transfer other than in the case of a lease, we will
be discharged of all of our obligations and covenants under the indenture and
the debt securities.
EVENTS OF DEFAULT
Unless otherwise specified in the prospectus supplement, each of the
following will constitute an event of default under the indenture with respect
to debt securities of any series:
(1) failure to pay any interest on any debt securities of that series
when due for a continuous period of 60 days, whether or not, in
the case of subordinated debt securities, the payment is
prohibited by the subordination provisions of the indenture;
(2) failure to pay principal of, or any premium on, any debt security
of that series when due, whether or not, in the case of
subordinated debt securities, the payment is prohibited by the
subordination provisions of the indenture;
(3) failure to perform any of our covenants, or a breach of any of
our warranties, in the indenture, other than a covenant included
in the indenture solely for the benefit of a series other than
that series, for a continuous period of 90 days after written
notice has been given by the Trustee, or the holders of at least
25% in principal amount of the outstanding debt securities of
that series, as provided in the indenture;
(4) certain events of bankruptcy, insolvency or reorganization
affecting us; and
(5) any other event of default provided with respect to debt
securities of that series.
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If an event of default described in clauses (1) through (3) or (5)
with respect to the debt securities of any series at the time outstanding shall
occur and be continuing, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the outstanding debt securities of that series
by notice as provided in the indenture may declare the principal amount of the
debt securities of that series to be due and payable immediately. If the debt
security is an original issue discount debt security or the principal amount of
the debt security is not then determinable, that portion of the principal amount
of the debt security, or other amount instead of the principal amount, as may be
specified in the terms of the debt security will become due and payable
immediately.
If an event of default described in clause (4) above with respect to
the debt securities of any series at the time outstanding shall occur and be
continuing, the principal amount of, and any interest accrued on, all the debt
securities of that series, or, in the case of any original issue discount
security or other debt security, the specified amount, will automatically, and
without any action by the Trustee or any holder, become immediately due and
payable.
After any acceleration, but before a judgment or decree based on that
acceleration, the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series may, under certain circumstances,
rescind and annul that acceleration if all events of default, other than the
non-payment of accelerated principal or interest, or other specified amount,
have been cured or waived as provided in the indenture.
Subject to the sections of the indenture relating to the duties of
the Trustee, if an event of default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
indenture at the request or direction of any of the holders, unless those
holders shall have offered to the Trustee reasonable indemnity. Subject to the
provisions for the indemnification of the Trustee, the holders of a majority in
aggregate principal amount of the outstanding debt securities of any series will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the debt securities of that series.
No holder of a debt security of any series 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 provided by the indenture,
unless:
(1) the holder has previously given to the Trustee written notice of
a continuing event of default with respect to the debt securities
of that series;
(2) the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made written
request, and those holders have offered reasonable indemnity, to
the Trustee to institute the proceeding as trustee; and
(3) the Trustee has failed to institute the proceeding, and has not
received from the holders of a majority in aggregate principal
amount of the outstanding debt securities of that series a
direction inconsistent with that request, within 60 days after
that notice, request and offer.
These limitations do not apply to a suit instituted by a holder of a
debt security for the enforcement of payment of the principal of or any premium
or interest on a debt security on or after the applicable due date specified in
the debt security.
Within 90 days after any default with respect to debt securities of
any series, the Trustee will transmit in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, notice of those defaults known to
the Trustee, unless a default shall have been cured or waived. In the case of a
default in the payment of the principal of, or any premium on, or interest on
any debt securities of that series, or in the payment of any installment into a
separate account established for the payment of principal
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and interest on debt securities of any series with respect to debt securities of
that series, the Trustee will be protected in withholding this notice if and so
long as the Trustee in good faith determines that the withholding of the notice
is in the interest of the holders of debt securities of the applicable series.
We are required to deliver to the Trustee, within 120 days after the
end of each fiscal year, a brief certificate of our compliance with all of the
conditions and covenants under the indenture.
MODIFICATION AND WAIVER
The indenture provides that modifications and amendments may be made
by us and the Trustee with the consent of the holders of a majority in aggregate
principal amount of the outstanding debt securities of each series affected by
the modification or amendment. We may not make any of the following
modifications or amendments to the indenture without the consent of the holder
of each outstanding debt security affected by the modification or amendment:
(1) change the stated maturity of the principal of, or any
installment of principal of or interest on, any debt security;
(2) reduce the principal amount of, or any premium or interest on,
any debt security;
(3) reduce the amount of principal of an original issue discount
security or any other debt security payable upon acceleration of
the maturity of that security;
(4) change the place or currency of payment of principal of, or any
premium or interest on, any debt security;
(5) impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security;
(6) in the case of subordinated debt securities, modify the
subordination provisions in a manner adverse to the holders of
the subordinated debt securities;
(7) except as provided in the indenture, release the subsidiary
guarantee of a subsidiary guarantor;
(8) reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is
required for modification or amendment of the indenture;
(9) reduce the percentage in principal amount of outstanding debt
securities of any series necessary for waiver of compliance with
certain provisions of the indenture or for waiver of certain
defaults; or
(10) modify those provisions with respect to modification and waiver.
The holders of a majority in principal amount of the outstanding debt
securities of any series may waive our compliance with certain restrictive
provisions of the indenture and may waive certain past defaults under the
indenture. Those holders may not waive a default in the payment of principal,
premium or interest on the debt securities and may not waive our compliance with
certain covenants and provisions of the indenture without the consent of the
holder of each outstanding debt security of any series affected.
LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The indenture will provide that we may elect, at any time, to
terminate all of our obligations under the debt securities of a particular
series and the indenture, except for certain obligations, including those
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relating to the defeasance trust and obligations to register the transfer or
exchange of the debt securities of that series, to replace mutilated, destroyed,
lost or stolen debt securities of that series and to maintain a registrar and
paying agent in respect of the debt securities of that series. We refer to this
as "legal defeasance." We may also elect, at any time, to terminate our
obligations under certain material covenants with respect to a particular series
of debt securities. We refer to this as "covenant defeasance."
In order to exercise our defeasance options with respect to debt
securities of any series, we must irrevocably deposit in trust for the benefit
of the holders of those debt securities money or certain U.S. government
obligations, or both, for the payment of principal of, premium, if any, and
interest on those debt securities of that series to maturity or redemption. We
must comply with certain other conditions, including delivery to the Trustee of
an opinion of counsel to the effect that the holders of those debt securities
will not recognize income, gain or loss for federal income tax purposes as a
result of that defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
the defeasance had not occurred.
SATISFACTION AND DISCHARGE
The indenture will provide that we may request the Trustee to execute
proper instruments acknowledging satisfaction and discharge of the indenture
with respect to any series of debt securities when:
(1) either:
(A) all previously authenticated and delivered debt securities
of the series to be discharged have been delivered to the
Trustee for cancellation, other than the following debt
securities:
(a) securities in bearer form surrendered for exchange for
"registered securities" and maturing after the
exchange, whose surrender is not required or has been
waived, as provided in the indenture,
(b) debt securities which have been destroyed, lost or
stolen and which have been replaced or paid, as
provided in the indenture,
(c) coupons appertaining to debt securities called for
redemption and maturing after the relevant redemption
date, whose surrender has been waived, as provided in
the indenture, and
(d) debt securities for whose payment money has been
deposited in trust with the Trustee or any paying agent
or segregated and held in trust by us but was returned
to us prior to cancellation, as provided in the
indenture;
or
(B) all debt securities of the series to be discharged:
(a) have become due and payable,
(b) will become due and payable at their stated maturity
within one year, or
(c) if redeemable at our option, are to be called for
redemption within one year under arrangements
reasonably satisfactory to the Trustee for the
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giving of notice of redemption by the Trustee in our
name, and at our expense,
and we, in the case of (B)(a), (b) or (c) above, have irrevocably
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount, in the currency in
which the debt securities of the series to be discharged are
payable or in U.S. government obligations, sufficient to pay and
discharge the entire indebtedness on any debt securities still
outstanding, for principal, any premium, and interest to the date
of the deposit, in the case of debt securities which have become
due and payable, or to the stated maturity or redemption date;
and
(2) we have paid or caused to be paid all other sums payable by us
under the indenture; and
(3) we have delivered to the Trustee an officers' certificate and an
opinion of counsel, each stating that all conditions precedent
relating to the satisfaction and discharge of the indenture as to
the series to be discharged have been satisfied.
GOVERNING LAW
The indenture and the debt securities will be governed by and
construed in accordance with the laws of the State of New York. The indenture is
subject to the provisions of the Trust Indenture Act that are required to be a
part of the indenture and shall, to the extent applicable, be governed by those
provisions.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 300,000,000 shares of Class
A Common Stock, 120,000,000 shares of Class B Common Stock, and 23,600,000
shares of Preferred Stock, par value $.01 per share, including 3,600,000 shares
of $6.50 Cumulative Redeemable Preferred Stock. As of October 22, 1999, there
were 123,282,804 shares of Class A Common Stock and 113,679,334 shares of Class
B Common Stock outstanding. All of the shares of Class B Common Stock are
beneficially owned by members of the Lauder family. Of the authorized shares of
Preferred Stock, 3,600,000 shares of $6.50 Cumulative Redeemable Preferred Stock
are outstanding and, as of the date of this prospectus, are beneficially owned
by members of the Lauder family. The following description is a summary and is
subject to and qualified in its entirety by reference to the provisions of our
Restated Certificate of Incorporation previously filed with the Commission.
COMMON STOCK
The shares of Class A Common Stock and Class B Common Stock are
identical in all respects, except for voting rights, certain conversion rights
and transfer restrictions in respect of the shares of the Class B Common Stock,
as described below.
VOTING RIGHTS. Each share of Class A Common Stock entitles the holder
to one vote on each matter submitted to a vote of our stockholders and each
share of Class B Common Stock entitles the holder to ten votes on each such
matter, including the election of directors. There is no cumulative voting.
Except as required by applicable law, holders of the Class A Common Stock and
Class B Common Stock vote together on all matters submitted to a vote of the
stockholders. With respect to certain corporate changes, such as liquidations,
reorganizations, recapitalizations, mergers, consolidations and sales of all or
substantially all of our assets, holders of the Class A Common Stock and Class B
Common Stock vote together as a single class and the approval of 75% of the
outstanding voting power is required to authorize or approve such transactions.
Any action that can be taken at a meeting of the stockholders may be
taken by written consent in lieu of the meeting if we receive consents signed by
stockholders having the minimum number of votes that
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would be necessary to approve the action at a meeting at which all shares
entitled to vote on the matter were present. This could permit the holders of
Class B Common Stock to take all actions required to be taken by the
stockholders without providing the other stockholders the opportunity to make
nominations or raise other matters at a meeting. The right to take action by
less than unanimous written consent expires at such time as there are no shares
of Class B Common Stock outstanding.
DIVIDENDS. Holders of Class A Common Stock and Class B Common Stock
are entitled to receive dividends at the same rate if, as and when such
dividends are declared by our Board of Directors out of assets legally available
therefor after payment of dividends required to be paid on shares of preferred
stock, if any.
If a dividend or distribution payable in shares of Class A Common
Stock is made on the Class A Common Stock, we must also make a pro rata and
simultaneous dividend or distribution on the Class B Common Stock payable in
shares of Class B Common Stock. Conversely, if a dividend or distribution
payable in shares of Class B Common Stock is made on the Class B Common Stock,
we must also make a pro rata and simultaneous dividend or distribution on the
Class A Common Stock payable in shares of Class A Common Stock.
RESTRICTIONS ON TRANSFER. If a holder of Class B Common Stock
transfers such shares, whether by sale, assignment, gift, bequest, appointment
or otherwise, to a person other than a Lauder Family Member (as defined below),
such shares will be converted automatically into shares of Class A Common Stock.
In the case of a pledge of shares of Class B Common Stock to a financial
institution, such shares will not be deemed to be transferred unless and until a
foreclosure occurs.
As used in this prospectus, the term "Lauder Family Members" includes
only the following persons: (i) Mrs. Estee Lauder and her estate, guardian,
conservator or committee; (ii) each descendant of Mrs. Lauder (a "Lauder
Descendant") and their respective estates, guardians, conservators or
committees; (iii) each "Family Controlled Entity" (as defined below); and (iv)
the trustees, in their respective capacities as such, of each "Family Controlled
Trust" (as defined below). The term "Family Controlled Entity" means (i) any
not-for-profit corporation if at least 80% of its board of directors is composed
of Mrs. Lauder and/or Lauder Descendants; (ii) any other corporation if at least
80% of the value of its outstanding equity is owned by Lauder Family Members;
(iii) any partnership if at least 80% of the value of its partnership interests
is owned by Lauder Family Members; and (iv) any limited liability or similar
company if at least 80% of the value of the company is owned by Lauder Family
Members. The term "Family Controlled Trust" includes certain trusts existing on
November 16, 1995 and trusts the primary beneficiaries of which are Mrs. Lauder,
Lauder Descendants, spouses of Lauder Descendants and/or charitable
organizations provided that if the trust is a wholly charitable trust, at least
80% of the trustees of such trust consist of Mrs. Lauder and/or Lauder
Descendants.
CONVERSION. Class A Common Stock has no conversion rights. Class B
Common Stock is convertible in Class A Common Stock, in whole or in part, at any
time and from time to time at the option of the holder, on the basis of one
share of Class A Common Stock for each share of Class B Common Stock converted.
In the event of a transfer of shares of Class B Common Stock to any person other
than a Lauder Family Member, each share of Class B Common Stock so transferred
automatically will be converted into one share of Class A Common Stock. Each
share of Class B Common Stock will also automatically convert into one share of
Class A Common Stock if, on the record date for any meeting of the stockholders,
the number of shares of Class B Common Stock then outstanding is less than 10%
of the aggregate number of shares of Class A Common Stock and Class B Common
Stock then outstanding.
LIQUIDATION. In the event of liquidation, after payment of our debts
and other liabilities and after making provision for the holders of Preferred
Stock, if any, our remaining assets will be distributable ratably among the
holders of the Class A Common Stock and Class B Common Stock treated as a single
class.
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MERGERS AND OTHER BUSINESS COMBINATIONS. Upon a merger or
consolidation, holders of each class of Common Stock are entitled to receive
equal per share payments or distributions, except that in any transaction in
which shares of capital stock are distributed, such shares may differ as to
voting rights to the extent and only to the extent that the voting rights of the
Class A Common Stock and Class B Common Stock differ at that time. We may not
dispose of all or any substantial part of our assets to, or merge or consolidate
with, any person, entity or "group" (as defined in Rule 13d-5 of the Exchange
Act), which beneficially owns in the aggregate ten percent or more of our
outstanding Common Stock (a "Related Person") without the affirmative vote of
the holders, other than such Related Person, of not less than 75% of the voting
power of outstanding Class A Common Stock and Class B Common Stock voting as a
single class. For the sole purpose of determining the 75% vote, a Related Person
will also include the seller or sellers from whom the Related Person acquired,
during the preceding six months, at least five percent of the outstanding shares
of Class A Common Stock in a single transaction or series of related
transactions pursuant to one or more agreements or other arrangements (and not
through a brokers' transaction) but only if such seller or sellers have
beneficial ownership of shares of Common Stock having a fair market value in
excess of $10 million in the aggregate following such disposition to such
Related Person. This 75% voting requirement is not applicable, however, if (i)
the proposed transaction is approved by a vote of not less than a majority of
our board of directors who are neither affiliated nor associated with the
Related Person (or the seller of shares to the Related Person as described
above) or (ii) in the case of a transaction pursuant to which the holders of
Common Stock are entitled to receive cash, property, securities or other
consideration, the cash or fair market value of the property, securities or
other consideration to be received per share in such transaction is not less
than the higher of (A) the highest price per share paid by the Related Person
for any of its holdings of Common Stock within the two-year period immediately
prior to the announcement of the proposed transaction or (B) the highest closing
sale price during the 30-day period immediately preceding such date or during
the 30-day period immediately preceding the date on which the Related Person
became a Related Person, whichever is higher.
OTHER PROVISIONS. The holders of the Class A Common Stock and Class B
Common Stock are not entitled to preemptive rights. Neither the Class A Common
Stock nor the Class B Common Stock may be subdivided or combined in any manner
unless the other class is subdivided or combined in the same proportion.
TRANSFER AGENT AND REGISTRAR. The Transfer Agent and Registrar for
the Class A Common Stock is ChaseMellon Shareholder Services.
PREFERRED STOCK
$6.50 CUMULATIVE REDEEMABLE PREFERRED STOCK. Holders of the $6.50
Cumulative Redeemable Preferred Stock are entitled to receive cumulative cash
dividends at a rate of $6.50 per annum per share payable in quarterly
installments. If such dividends are not paid in full, or declared in full and
sums set apart for full payment thereof, then no dividends may be paid or
declared upon the Common Stock or any other capital stock ranking junior to or
on parity with such $6.50 Cumulative Redeemable Preferred Stock. If, at the time
of an annual meeting of stockholders, the equivalent of six quarterly dividends
are in arrears, then the number of directors on our board of directors will be
increased by two and the holders of the outstanding $6.50 Cumulative Redeemable
Preferred Stock voting separately as a class will be entitled at the meeting to
vote for the election of two directors. The right to elect two directors and
such directors' terms on the board of directors will continue until such
arrearage in the payment of dividends ceases to exist. Shares of $6.50
Cumulative Redeemable Preferred Stock are subject to mandatory redemption on
June 30, 2005 at a redemption price of $100 per share. Following such date and
so long as such mandatory redemption obligations have not been discharged in
full, no dividends may be paid or declared upon the Common Stock, or on any
other capital stock ranking junior to or on a parity with such $6.50 Cumulative
Redeemable Preferred Stock and no shares of Common Stock or such junior or
parity stock may be redeemed or acquired by us for any consideration. We may
redeem the $6.50 Cumulative Redeemable Preferred Stock owned by the EL 1994
Trust and a trust for the primary benefit of Leonard A. Lauder ("LAL 1995
Trust"), in whole or in part, after the death of Mrs. Lauder or, if owned by
persons other than
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the EL 1994 Trust or the LAL 1995 Trust, after five years following the
disposition of such shares by the EL 1994 Trust or the LAL 1995 Trust, as the
case may be. After the later of June 30, 2000 and Mrs. Lauder's death, holders
of the $6.50 Cumulative Redeemable Preferred Stock may put such shares to us at
a price of $100 per share (which amount represents the liquidation preference
per share).
OTHER PREFERRED STOCK. Our board of directors is authorized, subject
to any limitations prescribed by Delaware law or the rules of the NYSE or other
organizations on whose systems our stock may be quoted or listed, to provide for
the issuance of additional shares of Preferred Stock in one or more series, to
establish from time to time the number of shares to be included in each such
series, or fix the rights, powers, preferences and privileges of the shares of
each wholly unissued series and any qualifications, limitations or restrictions
thereon, and to increase or decrease the number of shares of such series,
without any further vote or action by the stockholders. The approval of the
holders of at least 75% of the outstanding shares of Class B Common Stock,
however, is required for the issuance of shares of Preferred Stock that have the
right to vote for the election of directors under ordinary circumstances or to
elect 50% or more of the directors under any circumstances. Depending upon the
terms of the Preferred Stock established by the board of directors, any or all
series of Preferred Stock could have preference over the Common Stock with
respect to dividends and other distributions and upon liquidation or could have
voting or conversion rights that could adversely affect the holders of the
outstanding Common Stock. In addition, the Preferred Stock could delay, defer or
prevent a change of control. We have no present plans to issue any additional
shares of Preferred Stock.
STOCKHOLDERS' AGREEMENT
All Lauder Family Members (other than The Lauder Foundation, a tax
exempt, private foundation, Aerin Lauder Zinterhofer, Jane Lauder, The 4202
Corporation, the LAL 4002 Trust and the RSL 4201 Trust) who beneficially own
shares of Common Stock have agreed pursuant to a stockholders' agreement with us
(the "Stockholders' Agreement") to vote all shares beneficially owned by them
for Leonard A. Lauder, Ronald S. Lauder and one person (if any) designated by
each as directors of our company. As of October 22, 1999, these stockholders
beneficially owned, in the aggregate, shares of Common Stock having
approximately 90.9% of our voting power.
REGISTRATION RIGHTS AGREEMENT
We and certain members of the Lauder family, certain trusts and other
entities controlled by members of the Lauder family and Morgan Guaranty Trust
Company of New York ("Morgan Guaranty") are parties to a Registration Rights
Agreement (the "Master Registration Rights Agreement"), pursuant to which each
of Leonard A. Lauder, Ronald S. Lauder and Morgan Guaranty have three demand
registration rights and the Estee Lauder 1994 Trust has six demand registration
rights in respect of shares of Class A Common Stock (including Class A Common
Stock issued upon conversion of Class B Common Stock) held by them. All the
parties to the Master Registration Rights Agreement (other than us) also have an
unlimited number of piggyback registration rights in respect of their shares.
The rights of Morgan Guaranty and any pledgee of the Estee Lauder 1994 Trust
under the Master Registration Rights Agreement will be exercisable only in the
event of a default under certain loan arrangements.
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PLAN OF DISTRIBUTION
We may sell the debt securities being offered by this prospectus
directly to a limited number of institutional purchasers or to a single
purchaser or through agents, underwriters, dealers or remarketing firms.
Offers to purchase debt securities may be solicited directly by us or
by agents designated by us from time to time. Any agent who may be deemed to be
an underwriter, as that term is defined in the Securities Act of 1993, as
amended (the "Securities Act"), involved in the offer or sale of the debt
securities in respect of which this prospectus is delivered will be named, and
any commissions payable by us to that agent will be set forth, in a prospectus
supplement. The agent will be acting on a reasonable efforts basis for the
period of its appointment or, if indicated in the applicable prospectus
supplement, on a firm commitment basis. Agents may be entitled under agreements
which may be entered into with us to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for us in the
ordinary course of business.
If any underwriters are utilized in any sale of the debt securities
in respect of which this prospectus is delivered, we will enter into an
underwriting agreement with those underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set forth
in the prospectus supplement, which will be used by the underwriters to make
resales of the debt securities. The underwriters may be entitled, under the
relevant underwriting agreement, to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for us in the
ordinary course of business.
If a dealer is utilized in any sale of the debt securities, we will
sell the debt securities to the dealer, as principal. The dealer may then resell
those debt securities to the public at varying prices to be determined by the
dealer at the time of resale. Dealers may be entitled to indemnification by us
against certain civil liabilities, including liabilities under the Securities
Act, and may be customers of, engage in transactions with or perform services
for us in the ordinary course of business.
Securities may also be offered and sold, if so indicated in the
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with their terms, by one or more firms ("remarketing firms"), acting
as principals for their own accounts or as our agents. Any remarketing firm will
be identified and the terms of its agreement, if any, with us and its
compensation will be described in the prospectus supplement. Remarketing firms
may be entitled under agreements which may be entered into with us to
indemnification by us against certain civil liabilities, including liabilities
under the Securities Act, and may be customers of, engage in transactions with
or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will
authorize agents, underwriters or dealers to solicit offers by certain
purchasers to purchase debt securities from us, at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. These
contracts will be subject to only those conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth the commission payable
for solicitation of such offers.
LEGAL MATTERS
The validity of the debt securities offered by this prospectus has
been passed upon for us by Weil, Gotshal & Manges LLP, New York, New York.
Certain legal matters in connection with offerings made by this prospectus may
be passed upon for any underwriters, dealers or agents by counsel named in the
applicable prospectus supplement.
20
<PAGE>
EXPERTS
The financial statements and schedule incorporated by reference in
this prospectus that are contained in our Annual Report on Form 10-K for the
fiscal year ended June 30, 1999 have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
21
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses in connection with the issuance and distribution of the
securities being registered are estimated (other than with respect to the
Commission's registration fee) to be as follows:
Registration fee .................................... $111,200.00
Trustee's expenses ................................. 8,000.00
Accounting fees and expenses ....................... 50,000.00
Legal fees and expenses ............................ 75,000.00
Miscellaneous........................................ 10,000.00
Total........................................ $254,200.00
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Generally, Section 145 of the General Corporation Law of the State of
Delaware (the "GCL") permits a corporation to indemnify any person made a party
to an action, by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise. To the extent that person has been successful in any
such matter, that person shall be indemnified against expenses actually and
reasonably incurred by him. In the case of an action by or in the right of the
corporation, no indemnification may be made in respect of any matter as to which
that person was adjudged liable unless and only to the extent that the Delaware
Court of Chancery or the court in which the action was brought determines that
despite the adjudication of liability that person is fairly and reasonably
entitled to indemnity for proper expenses.
Our By-Laws provide for indemnification of our directors and officers
to the fullest extent permitted by law.
Section 102(b)(7) of the GCL enables a Delaware corporation to
include a provision in its certificate of incorporation limiting a director's
liability to the corporation or its stockholders for monetary damages for
breaches of fiduciary duty as a director. Our Certificate of Incorporation
provides for such limitation to the full extent permitted under Delaware law.
Our directors and officers are covered by insurance policies
indemnifying against certain liabilities, including certain liabilities arising
under the Securities Act which might be incurred by them in such capacities and
against which we may not indemnify them.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Exhibit Number Exhibit Description
- -------------- -------------------
*1 Form of Debt Securities Underwriting Agreement.
*4 Indenture, dated as of November 5, 1999, between the Company
and State Street Bank and Trust Company, N.A., relating to
the Debt Securities.
*5 Opinion of Weil, Gotshal & Manges LLP.
*12 Statement regarding computation of ratio of earnings to fixed
charges.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Weil, Gotshal & Manges LLP (included in the
Opinion filed as Exhibit 5).
**24 Power of Attorney (included on signature page to this
Registration Statement, as filed on August 26, 1999).
*25 Statement of Eligibility on Form T-1 of State Street Bank and
Trust Company, N.A.
- ------------------------
* Filed herewith.
** Previously filed.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
II-1
<PAGE>
furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-2
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Amendment to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in New York,
New York, on this 5th day of November, 1999.
THE ESTEE LAUDER COMPANIES INC.
By: /s/ ROBERT J. BIGLER
-------------------------------
Name: Robert J. Bigler
Title: Senior Vice President and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Amendment to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board and Chief November 5, 1999
- ------------------------------------------ Executive Officer (Principal Executive
Leonard A. Lauder Officer)
* Director November 5, 1999
- ------------------------------------------
Ronald S. Lauder
* Director November 5, 1999
- ------------------------------------------
William P. Lauder
* Director November 5, 1999
- ------------------------------------------
Fred H. Langhammer
* Director November 5, 1999
- ------------------------------------------
Richard D. Parsons
* Director November 5, 1999
- ------------------------------------------
Marshall Rose
* Director November 5, 1999
- ------------------------------------------
P. Roy Vagelos, M.D.
* Director November 5, 1999
- ------------------------------------------
Faye Wattleton
* Senior Vice President and Chief November 5, 1999
- ------------------------------------------ Financial Officer (Principal Financial
Robert J. Bigler and Accounting Officer)
*By: /s/ ROBERT J. BIGLER
-------------------------------
Robert J. Bigler
Attorney-in-Fact
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit Description
- -------------- -------------------
*1 Form of Debt Securities Underwriting Agreement.
*4 Indenture, dated as of November 5, 1999, between the Company
and State Street Bank and Trust Company, N.A., relating to
the Debt Securities.
*5 Opinion of Weil, Gotshal & Manges LLP.
*12 Statement regarding computation of ratio of earnings to fixed
charges.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Weil, Gotshal & Manges LLP (included in the
Opinion filed as Exhibit 5).
**24 Power of Attorney (included on signature page to this
Registration Statement, as filed on August 26, 1999).
*25 Statement of Eligibility on Form T-1 of State Street Bank and
Trust Company, N.A.
- ------------------------
* Filed herewith.
** Previously filed.
EXHIBIT 1
THE ESTEE LAUDER COMPANIES INC.
Debt Securities
UNDERWRITING AGREEMENT
New York, New York
To the Representatives named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Sirs:
The Estee Lauder Companies Inc., a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its Securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture dated as
of ___________, 1999 (the "Indenture"), between the Company and State Street
Bank and Trust Company, N.A., as trustee (the "Trustee"), as supplemented by the
First Supplemental Indenture dated as of _______________, 1999. If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives", as used
herein shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement or statements
(the file number or numbers of which is or are set forth in Schedule I hereto),
including a related preliminary prospectus, on such Form for the registration
under the Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including the related preliminary
prospectus, and has filed a preliminary prospectus in accordance with Rules 415
and 424(b)(5), each of which has previously been furnished to you. The Company
will next file with the Commission one of the following: (i) prior to
effectiveness of such registration statement, a further amendment thereto,
including the form of final prospectus, (ii) a final prospectus in accordance
with Rules 430A and 424(b)(1) or (4), or (iii) a final prospectus in accordance
with Rules 415 and 424(b)(2) or (5). In the case of clause (ii), the Company has
included in such registration statement or statements, as amended at the
Effective Date (as hereinafter defined), all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be included in the
Prospectus with respect to the Securities and the offering thereof. As filed,
such amendment and form of final prospectus, or such final prospectus, shall
include all Rule 430A Information and, except to the extent the
<PAGE>
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time (as hereinafter defined),
shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein. If
the Registration Statement contains the undertaking specified by Regulation S-K
Item 512(a), the Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term the "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Preliminary
Prospectus" shall mean any preliminary prospectus referred to in the preceding
paragraph and any preliminary prospectus included in the Registration Statement
at the Effective Date that omits Rule 430A Information. "Prospectus" shall mean
the prospectus relating to the Securities that is first filed pursuant to Rule
424(b) after the Execution Time or, if no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean the
registration statement or statements referred to in the preceding paragraph,
including incorporated documents as of the filing of the Company's Quarterly
Report on Form 10-Q for the three month period ended __________________,
exhibits and financial statements, in the form in which it or they has or have
or shall become effective and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined), shall also
mean such registration statement or statements as so amended. Such term shall
include Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules under the Act. "Rule 430A Information"
means information with respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to the Registration
Statement, a Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Securities Exchange Act of 1934 (the
"Exchange Act") on or before the effective date of the Registration Statement or
the date of such Preliminary Prospectus or the Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the effective date of the Registration Statement,
or the date of any Preliminary Prospectus or the Prospectus, as the case may be,
deemed to be incorporated therein by reference.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with Rule
424(b) and on the
2
<PAGE>
Closing Date, the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act of 1939 (the "Trust Indenture Act") and
the rules thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or the Prospectus
(or any supplement thereto).
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the respective principal amounts of the Securities set forth
opposite each respective Underwriter's name in Schedule II hereto, except that,
if Schedule I hereto provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto, less
the respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will make Delayed Delivery Contracts in all cases
where sales
3
<PAGE>
of Contract Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such Delayed
Delivery Contract must be for not less than the minimum principal amount set
forth in Schedule I hereto and the aggregate principal amount of Contract
Securities may not exceed the maximum aggregate principal amount set forth in
Schedule I hereto. The Underwriters will not have any responsibility in respect
of the validity or performance of Delayed Delivery Contracts. The principal
amount of Securities to be purchased by each Underwriter as set forth in
Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Securities to be purchased by all Underwriters shall
be the aggregate principal amount set forth in Schedule II hereto, less the
aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made at the office, on the date and at the
time specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Securities being
called the "Closing Date"). Delivery of the Underwriters' Securities shall be
made to the Representatives for the respective account of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks payable, or wire
transfers, in immediately available funds. The Securities shall be delivered in
definitive global form through the facilities of The Depository Trust Company.
4. Agreements.
(A) The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, and any amendment thereof, if not effective at the Execution Time, to
become effective. If the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise required under
Rule 424(b), the Company will file the Prospectus, properly completed, pursuant
to the applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely filing.
The Company will promptly advise the Representatives (i) when the Registration
Statement shall have become effective, (ii) when any amendment to the
Registration Statement relating to the Securities shall have become effective,
(iii) of any request by the Commission for any amendment of the Registration
Statement or amendment of or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of
4
<PAGE>
any notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof. The Company will not file any amendment of the
Registration Statement or supplement to the Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective rules
thereunder, the Company will give the Representatives immediate notice of the
occurrence of such event and promptly will prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45 days
after the end of the 12-month period beginning at the end of the current fiscal
quarter of the Company, an earnings statement (which need not be audited) of the
Company and its subsidiaries, covering a period of at least 12 months beginning
after the end of the current fiscal quarter of the Company, which will satisfy
the provisions of Section 11(a) of the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Representatives may reasonably
request.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by institutional
investors.
(f) Until the earlier of the day on which the distribution of the
Securities is completed or the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any debt securities covered by the Registration
Statement or any other registration statement filed under the Act.
5
<PAGE>
(B) The several Underwriters agree with the Company that:
(a) The several Underwriters will pay the expenses of printing all
documents relating to the offering.
(b) The several Underwriters will pay the reasonable fees and
disbursements of outside counsel for the Company and the Trustee relating to the
offering.
(c) The several Underwriters will pay any fees of Moody's Investors
Service, Inc. and Standard & Poor's Ratings Group, a division of the McGraw-Hill
Companies, Inc. relating to the rating of the Securities.
(d) The several Underwriters will pay the fees and disbursements of
Arthur Andersen LLP relating to the preparation of the letter required by
Section 5(e) of this Agreement.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, as of the date of the effectiveness
of any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later time,
the Registration Statement shall have become effective not later than (i) 6:00
P.M. New York City time, on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 P.M. New York City
time on such date or (ii) 12:00 Noon on the business day following the day on
which the public offering price was determined, if such determination occurred
after 3:00 P.M. New York City time on such date; if filing of the Prospectus, or
any supplement thereto, is required pursuant to Rule 424(b), the Prospectus
shall have been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives:
6
<PAGE>
(i) the opinion of the General Counsel, an Assistant General Counsel,
an Associate General Counsel or other counsel of the Company, dated the Closing
Date, to the effect that:
(A) the Company is validly existing as a corporation in
good standing under the laws of the State of Delaware, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction within the United States which requires
such qualifications wherein it owns or leases material properties or
conducts material business;
(B) the Securities conform in all material respects to the
description thereof contained in the Prospectus;
(C) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding obligation enforceable against
the Company in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity
or at law); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant
to this Agreement, in the case of the Underwriters' Securities, or by
the purchasers thereof pursuant to Delayed Delivery Contracts, in the
case of any Contract Securities, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and other similar laws
affecting creditors' rights generally from time to time in effect,
and subject, as to enforceability, to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(D) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit,
which is not described or filed as required;
7
<PAGE>
(E) the Registration Statement and any amendments thereto
have become effective under the Act; any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement, as
amended, has been issued, and no proceedings for that purpose have
been instituted or are pending or contemplated under the Act;
(F) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company;
(G) no authorization, approval or other action by, and no
notice to, consent of, order of, or filing with, any New York,
Delaware corporate or Federal governmental authority or regulatory
body is required for the consummation of the transactions
contemplated herein or in any Delayed Delivery Contracts, except such
as have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities and such other approvals
(specified in such opinion) as have been obtained;
(H) such counsel has no reason to believe that (1) the
Registration Statement and the Prospectus (except the financial
statements and the notes thereto and other information of an
accounting or financial nature included therein, and the Statement of
Eligibility (Form T-1) included as an exhibit to the Registration
Statement, as to which such counsel need express no view) were not
appropriately responsive in all material respects to requirements of
the Act and the applicable rules and regulations of the Commission
thereunder and (2) the Registration Statement or any amendment
thereof at the time it became effective contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended or
supplemented, contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading (in each case except for the financial statements and
the notes thereto and other information of an accounting or financial
nature included therein, as to which such counsel need express no
view); and
(I) none of the issue and sale of the Securities, the
consummation of any other of the transactions herein contemplated or
the fulfillment of the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach of, or constitute a
default under, the charter or by-laws of the Company or the terms of
any material indenture or other
8
<PAGE>
material agreement or instrument known to such counsel and to which
the Company or any of its subsidiaries is a party or bound, or any
decree or regulation known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries.
The statements described in one or more of the foregoing paragraphs
of this subsection 5(b)(i) may be omitted from the opinion of such counsel;
provided, however, that in such event the Company shall also have furnished to
the Representatives the corresponding opinion or letter of Weil, Gotshal &
Manges LLP, counsel for the Company, described in subsection 5(b)(ii) or
5(b)(iii) immediately following.
(ii) in the event that the statements described in one or more of the
paragraphs of foregoing subsection 5(b)(i) is omitted from the opinion delivered
pursuant to such subsection, the opinion of Weil, Gotshal & Manges LLP, counsel
for the Company, dated the Closing Date, to the effect of the statements so
omitted.
In rendering such opinions, any such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of New York or the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good standing
whom they believe to be reliable and who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
(iii) in the event that the statements in paragraph (H)(1) of
subsection 5(b)(i) are omitted from the opinion provided pursuant to such
subsection, a letter of Weil, Gotshal & Manges LLP dated the Closing Date to the
effect that, having participated in conferences with certain officers of, and
with the accountants for, the Company and having made certain inquiries and
investigations in connection with the preparation of the Registration Statement
and the Prospectus, such counsel has no reason to believe that (i) the
Registration Statement and the Prospectus (except the financial statements and
the notes thereto and other information of an accounting or financial nature
included therein, and the Statement of Eligibility (Form T-1) included as an
exhibit to the Registration Statement, as to which such counsel need express no
view) were not appropriately responsive in all material respects with
requirements of the Act and the applicable rules and regulations of the
Commission thereunder and (ii) the Registration Statement at the Effective Date
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus on the Closing Date includes any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading (in each case except for the financial statements
and the notes thereto and other information of an accounting or financial nature
included therein, as to which such counsel need express no view).
9
<PAGE>
(c) The Representatives shall have received from ________________,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Indenture, any
Delayed Delivery Contracts, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the principal financial or accounting
officer (or Vice President and Treasurer) of the Company, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Prospectus, any supplement to the Prospectus and
this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectus, there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus.
(e) At the Closing Date, Arthur Andersen LLP shall have furnished to
the Representatives a letter or letters (which may refer to a letter previously
delivered to one or more of the Representatives), dated as of the Closing Date,
in form and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable published rules and regulations thereunder, that
the response, if any, to Item 10 of the Registration Statement is correct
insofar as it relates to them and stating in effect that:
(i) in their opinion the audited financial statements and schedules
thereto included or incorporated in the Registration Statement and the
Prospectus and reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act and the
published rules and regulations thereunder with respect to financial statements
and financial statement schedules included or incorporated in annual reports on
Form 10-K under the Exchange Act;
10
<PAGE>
(ii) on the basis of a reading of the unaudited financial statements
included or incorporated in the Registration Statement and the Prospectus and of
the latest unaudited financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committees of the Company and the
subsidiaries since the date of the latest audited balance sheet, through a
specified date not more than five business days prior to the date of the letter;
and inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent financial
statements incorporated in the Registration Statement and the Prospectus,
nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated in
the Registration Statement and the Prospectus do not comply as to form in all
material respects with applicable accounting requirements and with the published
rules and regulations of the Commission with respect to financial statements
included or incorporated in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not stated on a basis
substantially consistent with that of the audited financial statements included
or incorporated in the Registration Statement and the Prospectus; or
(2) with respect to the period subsequent to the date of the most
recent financial statements incorporated in the Registration Statement and the
Prospectus, there were, at a specified date not more than five business days
prior to the date of the letter, any increases in long-term debt of the Company
and its subsidiaries or decreases in the capital stock of the Company or
decreases in the stockholders' equity of the Company and its subsidiaries as
compared with the amounts shown on the most recent consolidated balance sheet
included or incorporated in the Registration Statement and the Prospectus,
except in all instances for increases or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by the Company as
to the significance thereof unless said explanation is not deemed necessary by
the Representatives; and
(iii) they have performed certain other procedures as a result of
which they determined that the information described in a schedule to be
delivered on behalf of the Underwriters of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general ledger of the Company) set forth in the
Registration Statement, as amended, the Prospectus, as amended or supplemented,
and in Exhibit 12 to the Registration Statement (including selected accounting,
financial or statistical information included or incorporated in the Company's
Annual Report on Form 10-K incorporated in the Prospectus or any of the
Company's Quarterly Reports on Form l0-Q incorporated therein), agrees with the
general ledger of the Company and its subsidiaries, excluding any questions of
legal interpretation.
11
<PAGE>
References to the Prospectus in this paragraph (e) include any
supplements thereto at the date of the letter.
(f) Subsequent to the respective dates of which information is given
in the Registration Statement and the Prospectus, there shall not have been (i)
any change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 5 or (ii) any change, or any development involving
a prospective change, in or affecting the business or properties of the Company
and its subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the public
offering or the delivery of the Securities as contemplated by the Registration
Statement and the Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have been
approved by the Company.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Securities by Moody's Investor's Service,
Inc. ("Moody's") or Standard & Poor's Corporation ("S&P") and neither Moody's
nor S&P shall have publicly announced that it has placed any of the Securities
on a credit watch with negative implications.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
12
<PAGE>
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Securities
as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred, as incurred, by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in connection
with the preparation thereof, and (ii) such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Securities to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as supplemented
prior to the confirmation of the sale of such Securities to such person). This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page of the
Prospectus and under the heading "Underwriting" or "Plan of Distribution" and,
if Schedule I hereto provides
13
<PAGE>
for sales of Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in any Preliminary
Prospectus and the Prospectus, constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus or the Prospectus, and you, as the Representatives,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of counsel, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to any local
counsel), approved by the Representatives in the case of paragraph (a) of this
Section 7, representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 7 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and one
or more of the Underwriters may be
14
<PAGE>
subject in such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount bears to
the sum of such discount and the purchase price of the Securities set forth on
Schedule I hereto and the Company is responsible for the balance; provided,
however, that (y) in no case shall any Underwriter (except as may be provided in
any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount applicable to
the Securities purchased by such Underwriter hereunder and (z) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (y) and (z) of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
15
<PAGE>
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's securities or in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the judgment of the Representatives, impracticable to market
the Securities.
10. Representations and Indemnities to Survive. The respective
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 6
and 7 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or sent
by facsimile transmission to it, at 7 Corporate Center Drive, Melville, New York
11747-3166; fax no.: (516) 847-6215; attention of Treasurer, with a copy to it
at 767 Fifth Avenue, New York, New York 10153; fax no.: (212) 572-3989;
attention of the General Counsel.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
16
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
THE ESTEE LAUDER COMPANIES INC.
By:
-----------------------------------
The foregoing Agreement is hereby
confirmed and accepted on the
date specified in Schedule I hereto.
By:
By:
-----------------------------------
For themselves and the other several
Underwriters, if any, named in Schedule
II to the foregoing Agreement.
17
<PAGE>
SCHEDULE I
Debt Securities
Underwriting Agreement dated
Registration Statement No. 333-85947
Representatives:
Title of Securities:
Principal Amount:
Interest Rate:
Purchase Price:
Offering Price:
Interest Payment Dates:
Subordination Provisions:
Optional Redemption:
Sinking Fund Provisions:
Delayed Delivery:
Closing Date and Time:
Method of Payment of Underwriters' Securities:
Other provisions of or Amendments to Underwriting Agreement:
Additional Covenants Pursuant to Section 4:
[Until [ ], the Company will not, without the consent of the
Representatives, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any securities issued or
guaranteed by the Company (other than the Securities).]
Additional Covenants Pursuant to Section 5:
18
<PAGE>
[At or prior to the Closing Date, the Indenture dated as of the
Closing Date, between the Company and State Street Bank and Trust Company, N.A.,
as Trustee, in form and substance satisfactory to the Underwriters, shall have
been executed and delivered by the parties thereto and shall be in full force
and effect.]
Units
Title and principal amount of Debt Securities in one Unit:
Purchase Price and currency:
Section 4(g) Listing upon notice of issuance on any national securities exchange
or automated quotation system:
Detachable Date:
Overallotment option:
Other provisions:
Section 5(h) provisions, if any:
Delayed Delivery: [None]
[Underwriters' commission shall be __% of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been entered
into and the check given in payment of such commission shall be drawn to the
order of _____________] [Maximum aggregate principal amount of Designated
Securities to be offered and sold pursuant to Delayed Delivery Contracts:
[$]_______________] [Minimum principal amount of each Delayed Delivery Contract:
[$]______________]
19
<PAGE>
SCHEDULE II
Amount
Underwriter To Be Purchased
- ----------- ---------------
20
<PAGE>
SCHEDULE III
Delayed Delivery Contract
[Date]
[Insert name and address
of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from The Estee Lauder
Companies Inc. (the "Company"), and the Company agrees to sell to the
undersigned, on _______, [1999] (the "Delivery Date"), principal amount of the
Company's securities (the "Securities") offered by the Company's Prospectus
dated __________, [1999], and related Prospectus Supplement dated ____________,
[1999], receipt of a copy of which is hereby acknowledged, at a [purchase price
of % of the] [principal amount] [thereof, plus] [accrued interest] [amortization
of original issue discount], if any, thereon from __________, [1999], to the
date of payment and delivery, and on the further terms and conditions set forth
in this contract.
Payment for the Securities to be purchased by the undersigned shall
be made on or before 11:00 AM, New York City time, on the Delivery Date to or
upon the order of the Company in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the Company and
the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount or number of Securities to
be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the Company
to sell and deliver Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the failure
thereof) that (1) the purchase of Securities to be made by the undersigned,
which purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount or number of Securities as is to be sold to them pursuant to
the Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above. Promptly after completion of such sale to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect,
21
<PAGE>
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York without reference to choice of law principles.
Very truly yours,
------------------------------------------
(Name of Purchaser)
By:
---------------------------------------
(Signature and Title of Officer)
------------------------------------------
(Address)
Accepted:
The Estee Lauder Companies Inc.
By:
----------------------------------
Title:
-------------------------------
22
EXHIBIT 4
================================================================================
THE ESTEE LAUDER COMPANIES INC.,
as Company
AND
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee
-----------------------------
Indenture
Dated as of November 5, 1999
-----------------------------
DEBT SECURITIES
================================================================================
788986
<PAGE>
THE ESTEE LAUDER COMPANIES INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of November 5, 1999
Trust Indenture
Act Section Indenture
----------- ---------
310(a)(1).............................................................6.07
(a)(2) .........................................................6.07
(b) ............................................................6.08
312(c) ..............................................................7.01
314(a) ..............................................................7.03
(a)(4) ........................................................10.04
(c)(1) .........................................................1.02
(c)(2) .........................................................1.02
(e) ............................................................1.02
315(b) ..............................................................6.01
316(a) (last sentence) ...............................................1.01
(a)(1)(A) ......................................................5.12
(a)(1)(B) ......................................................5.13
(b) ...........................................................5.08
(c) ........................................................1.04(c)
317(a)(1) ............................................................5.03
(a)(2) .........................................................5.04
(b) ..........................................................10.03
318(a) ..............................................................1.07
- --------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.........................................1
Section 1.01 Definitions................................................................................1
Section 1.02 Compliance Certificates and Opinions......................................................12
Section 1.03 Form of Documents Delivered to Trustee....................................................13
Section 1.04 Acts of Holders; Record Date..............................................................13
Section 1.05 Notices, Etc. to Trustee and Company......................................................15
Section 1.06 Notice to Holders; Waiver.................................................................15
Section 1.07 Conflict with Trust Indenture Act.........................................................16
Section 1.08 Effect of Headings and Table of Contents..................................................17
Section 1.09 Successors and Assigns....................................................................17
Section 1.10 Separability Clause.......................................................................17
Section 1.11 Benefits of Indenture.....................................................................17
Section 1.12 Governing Law.............................................................................17
Section 1.13 Legal Holidays............................................................................17
ARTICLE 2 SECURITY FORMS.................................................................................18
Section 2.01 Forms Generally...........................................................................18
Section 2.02 Form of Trustee's Certificate of Authentication...........................................18
Section 2.03 Securities Issuable in Global Form........................................................19
Section 2.04 Form of Legend for Global Securities......................................................21
ARTICLE 3 THE SECURITIES.................................................................................21
Section 3.01 Amount Unlimited; Issuable in Series......................................................21
Section 3.02 Denominations.............................................................................25
Section 3.03 Execution, Authentication, Delivery and Dating............................................26
Section 3.04 Temporary Securities......................................................................28
Section 3.05 Securityholder Lists......................................................................30
Section 3.06 Transfer and Exchange.....................................................................30
Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities..........................................32
Section 3.08 Payment of Interest; Interest Rights Preserved............................................33
Section 3.09 Optional Extension of Stated Maturity.....................................................35
Section 3.10 Persons Deemed Owners.....................................................................36
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Section 3.11 Cancellation..............................................................................37
Section 3.12 Computation of Interest...................................................................37
Section 3.13 Currency and Manner of Payments in Respect of Securities..................................37
Section 3.14 Appointment and Resignation of Exchange Rate Agent........................................41
Section 3.15 CUSIP Numbers........................................................................... 41
ARTICLE 4 SATISFACTION AND DISCHARGE.....................................................................42
Section 4.01 Satisfaction and Discharge of Indenture...................................................42
Section 4.02 Application of Trust Money................................................................43
Section 4.03 Repayment of Trust Money..................................................................43
ARTICLE 5 REMEDIES.......................................................................................44
Section 5.01 Events of Default.........................................................................44
Section 5.02 Acceleration of Maturity; Rescission and Annulment........................................45
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee...........................46
Section 5.04 Trustee May File Proofs of Claim..........................................................47
Section 5.05 Trustee May Enforce Claims Without Possession of Securities...............................47
Section 5.06 Application of Money Collected............................................................48
Section 5.07 Limitation on Suits.......................................................................48
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest.................49
Section 5.09 Restoration of Rights and Remedies........................................................49
Section 5.10 Rights and Remedies Cumulative............................................................50
Section 5.11 Delay or Omission Not Waiver..............................................................50
Section 5.12 Control by Holders........................................................................50
Section 5.13 Waiver of Past Defaults...................................................................51
ARTICLE 6 THE TRUSTEE....................................................................................51
Section 6.01 Notice of Defaults........................................................................51
Section 6.02 Certain Rights of Trustee.................................................................52
Section 6.03 Trustee Not Responsible for Recitals or Issuance of Securities............................53
Section 6.04 May Hold Securities.......................................................................53
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Section 6.05 Money Held in Trust.......................................................................53
Section 6.06 Compensation and Reimbursement............................................................54
Section 6.07 Corporate Trustee Required; Eligibility; Conflicting Interest.............................54
Section 6.08 Resignation and Removal; Appointment of Successor.........................................55
Section 6.09 Acceptance of Appointment by Successor....................................................56
Section 6.10 Merger, Conversion, Consolidation or Succession to Business...............................57
Section 6.11 Appointment of Authenticating Agent.......................................................58
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..............................................59
Section 7.01 Disclosure of Names and Addresses of Holders..............................................59
Section 7.02 Reports by Trustee........................................................................60
Section 7.03 Reports by Company........................................................................60
ARTICLE 8 MERGER, CONSOLIDATION AND SALE OF ASSETS.......................................................61
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms......................................61
Section 8.02 Successor Person Substituted..............................................................61
ARTICLE 9 SUPPLEMENTAL INDENTURES........................................................................62
Section 9.01 Supplemental Indentures Without Consent of Holders........................................62
Section 9.02 Supplemental Indentures With Consent of Holders...........................................63
Section 9.03 Execution of Supplemental Indentures......................................................65
Section 9.04 Effect of Supplemental Indentures.........................................................65
Section 9.05 Conformity with Trust Indenture Act.......................................................65
Section 9.06 Reference in Securities to Supplemental Indentures........................................65
ARTICLE 10 COVENANTS......................................................................................65
Section 10.01 Payment of Principal, Premium, if any, and Interest, if any...............................65
Section 10.02 Maintenance of Office or Agency...........................................................66
Section 10.03 Money for Securities Payments to Be Held in Trust.........................................67
Section 10.04 Statement as to Compliance................................................................69
Section 10.05 Additional Amounts........................................................................69
Section 10.06 Corporate Existence.......................................................................70
Section 10.07 Waiver of Certain Covenants...............................................................70
ARTICLE 11 REDEMPTION OF SECURITIES.......................................................................71
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Section 11.01 Applicability of Article..................................................................71
Section 11.02 Election to Redeem; Notice to Trustee.....................................................71
Section 11.03 Selection by Trustee of Securities to Be Redeemed.........................................71
Section 11.04 Notice of Redemption......................................................................72
Section 11.05 Deposit of Redemption Price...............................................................73
Section 11.06 Securities Payable on Redemption Date.....................................................73
Section 11.07 Securities Redeemed in Part...............................................................74
ARTICLE 12 SINKING FUNDS..................................................................................74
Section 12.01 Applicability of Article..................................................................74
Section 12.02 Satisfaction of Sinking Fund Payments with Securities.....................................75
Section 12.03 Redemption of Securities for Sinking Fund.................................................75
ARTICLE 13 REPAYMENT AT OPTION OF HOLDERS.................................................................76
Section 13.01 Applicability of Article..................................................................76
Section 13.02 Repayment of Securities...................................................................77
Section 13.03 Exercise of Option........................................................................77
Section 13.04 When Securities Presented for Repayment Become Due and Payable............................77
Section 13.05 Securities Repaid in Part.................................................................78
ARTICLE 14 DEFEASANCE AND COVENANT DEFEASANCE.............................................................79
Section 14.01 Company's Option to Effect Defeasance or Covenant Defeasance..............................79
Section 14.02 Defeasance and Discharge..................................................................79
Section 14.03 Covenant Defeasance.......................................................................80
Section 14.04 Conditions to Defeasance or Covenant Defeasance...........................................80
Section 14.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions................................................................................81
Section 14.06 Reinstatement.............................................................................82
ARTICLE 15 SUBORDINATION OF SECURITIES....................................................................83
Section 15.01 Securities Subordinate to Senior Indebtedness.............................................83
Section 15.02 Payment over of Proceeds upon Dissolution, Etc............................................83
Section 15.03 No Payment When Senior Indebtedness in Default............................................84
Section 15.04 Payment Permitted if No Default...........................................................85
Section 15.05 Subrogation to Rights of Holders of Senior Indebtedness...................................85
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Section 15.06 Provisions Solely to Define Relative Rights...............................................85
Section 15.07 Trustee to Effectuate Subordination.......................................................86
Section 15.08 No Waiver of Subordination Provisions.....................................................86
Section 15.09 Notice to Trustee.........................................................................86
Section 15.10 Reliance on Judicial Order or Certificate of Liquidating Agent............................87
Section 15.11 Rights of Trustee As a Holder of Senior Indebtedness; Preservation of Trustee's Rights....87
Section 15.12 Article Applicable to Paying Agents.......................................................87
Section 15.13 No Suspension of Remedies.................................................................88
Section 15.14 Trust Moneys Not Subordinated.............................................................88
Section 15.15 Trustee Not Fiduciary for Holders of Senior Indebtedness..................................88
ARTICLE 16 Subordination of Note Guarantees...............................................................88
Section 16.01 Securities and Coupons Subordinated to Guarantor Senior Indebtedness......................88
ARTICLE 17 Guarantee of Securities........................................................................88
Section 17.01 Note Guarantee............................................................................88
Section 17.02 Obligations Unconditional.................................................................91
Section 17.03 Release of Note Guarantees................................................................91
Section 17.04 Notice to Trustee.........................................................................92
Section 17.05 This Article not to Prevent Events of Default.............................................92
ARTICLE 18 MEETINGS OF HOLDERS OF SECURITIES..............................................................92
Section 18.01 Purposes for Which Meetings May Be Called.................................................92
Section 18.02 Call, Notice and Place of Meetings........................................................92
Section 18.03 Persons Entitled to Vote at Meetings......................................................93
Section 18.04 Quorum; Action............................................................................93
Section 18.05 Determination of Voting Rights; Conduct and Adjournment of Meetings.......................94
Section 18.06 Counting Votes and Recording Action of Meetings...........................................95
</TABLE>
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TESTIMONIUM
SIGNATURES
EXHIBITS FORMS OF CERTIFICATION
EXHIBIT A-1 FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE
BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE
EXCHANGE DATE
EXHIBIT A-2 FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A.
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY
GLOBAL SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE
EXCHANGE DATE
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INDENTURE, dated as of November 5, 1999, between THE ESTEE LAUDER
COMPANIES INC., a corporation duly organized and existing under the laws of the
State of Delaware, as Company (the "Company"), having its principal office at
767 Fifth Avenue, New York, New York 10153, and STATE STREET BANK AND TRUST
COMPANY, N.A., a national banking association duly organized and existing under
the laws of the United States of America, as Trustee (the "Trustee"), having its
principal office at 61 Broadway, Corporate Trust Department, 15th Floor, New
York, New York 10006.
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 (the "Securities"), to be
issued in one or more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article 1 have the meanings
assigned to them in this Article 1 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, and the terms "cash
transaction" and "self-liquidating paper", as used in TIA Section
311, shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting
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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 such
computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article 3, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"actual knowledge" means the actual fact or statement of knowing,
without any duty to make any investigation with regard thereto.
"Additional Amounts" has the meaning specified in Section 10.05.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"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 (or a committee of the Board of Directors empowered to
adopt such resolution)
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and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
or in the city in which the Corporate Trust Office is located are authorized or
obligated by law or executive order to close.
"Capital Stock" means (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"CEDEL S.A." means Cedelbank, Societe Anonyme, or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this Indenture 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.
"Common Depositary" has the meaning specified in Section 3.04.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture 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 Chief Executive Officer, its President,
its Chief Financial Officer, any Vice President, its Treasurer or any Assistant
Treasurer, its Secretary or any Assistant Secretary and delivered to the
Trustee.
"Conditional Redemption" means a redemption pursuant to a notice of
redemption that provides that such redemption is subject to the occurrence of
any event before the date fixed for such redemption as described in such notice
of redemption.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee, at which at any particular time its corporate trust business
shall be administered, except that with respect to presentation of Securities
for payment or for registration of transfer or exchange, such term shall mean
the office or agency of the Trustee at which, at any particular time, its
corporate agency business shall be conducted.
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"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the Euro, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"Currency Conversion Date" has the meaning specified in Section
3.13(d).
"Currency Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the government of the country which issued such
Currency and by a central bank or other public institution of or within the
international banking community for the settlement of transactions, (ii) the
Euro both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) any currency unit (or composite currency) other than the Euro for the
purposes for which it was established.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.08.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 3.13(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 3.13(f).
"Election Date" has the meaning specified in Section 3.13(h).
"Euro" means the single currency of (participating) member states of
the European Union.
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"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Date" has the meaning specified in Section 3.04(c).
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 3.01, the Trustee or a New York Clearing House bank designated
pursuant to Section 3.01 or TIA Section 313.
"Exchange Rate Officer's Certificate" means a certificate setting
forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign
Currency amounts of principal, premium, if any, and interest, if any (on an
aggregate basis and on the basis of a Security having the lowest denomination
principal amount determined in accordance with Section 3.02 in the relevant
Currency), payable with respect to a Security of any series on the basis of such
Market Exchange Rate, signed by the Chief Executive Officer, President, Chief
Financial Officer, Treasurer, any Vice President or any Assistant Treasurer of
the Company.
"Foreign Currency" means any Currency other than Currency of the
United States.
"Global Security" means a Security bearing the legend specified in
Section 2.04 evidencing all or a part of a series of Securities, authenticated
and delivered to the Depositary for such series or its nominee or held by the
Trustee on behalf of the Depositary pursuant to a balance certificate agreement
or other custody arrangement, and registered in the name of such Depositary or
nominee.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt or other obligation of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Debt or other obligation of the payment
thereof or to
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protect such obligee against loss in respect thereof (in whole or in part);
provided that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Guarantor" means any Person that may from time to time become a
guarantor of a series of Securities, until any such party is released from such
guarantee pursuant to the provisions of this Indenture, and each of their
respective successors.
"Guarantor Senior Indebtedness" means with respect to a series of
Securities and coupons, if any, "Guarantor Senior Indebtedness" as defined in
the Board Resolution, Officers' Certificate or indenture supplemental hereto
provided in accordance with Section 3.01 establishing such series of Securities,
if any.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"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,
and shall include the terms of any particular series of Securities established
as contemplated by Section 3.01; provided, however, that, if at any time more
than one Person is acting as Trustee under this instrument, "Indenture" shall
mean, with respect to any one or more series of Securities for which such Person
is Trustee, this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 3.01, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means any pledge, mortgage, lien, charge, encumbrance or
security interest except that a Lien shall not mean any license or right to use
intellectual property of the Company or a Subsidiary granted by the Company or a
Subsidiary.
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"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.01, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London, England, or
any other principal market for Dollars or such purchased Foreign Currency, in
each case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 3.01, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London, England, or another
principal market for the Currency in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any
Currency by reason of foreign exchange regulations or otherwise, the market to
be used in respect of such Currency shall be that upon which a non-resident
issuer of securities designated in such Currency would purchase such Currency in
order to make payments in respect of such securities.
"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, as
the same may be extended pursuant to Section 3.09, or by declaration of
acceleration, notice of redemption, notice of option to elect repayment or
otherwise.
"money" or "moneys" means legal tender for the currency to which it
relates.
"Note Guarantee" means with respect to any Guarantor, if any, the
unconditional Guarantee of the Securities of a particular series as specified as
contemplated by Section 3.01, pursuant to the provisions of Article 17.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, any Executive Vice
President, Senior Vice President or Vice President, the Treasurer or the
Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of the Company.
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"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company.
"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 Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment,
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Securities;
(iii) Securities with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in this
Indenture; and
(iv) mutilated, destroyed, lost or stolen Securities which
have become or are about to become due and payable which have been
paid pursuant to this Indenture 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 the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount (or principal amount at maturity) of Outstanding Securities
have given any request, demand, authorization, direction, notice, consent or
waiver under this Indenture, and for the purpose of making the calculations
required by TIA Section 313, Securities owned by the Company or any Affiliate of
the Company shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in making such calculation
or in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any Affiliate of the Company.
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"Participant" means a participant in the system of the Depositary,
including securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship, either directly or indirectly,
with such a participant.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal, premium, if any,
or interest, if any, on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal, premium, if any,
and interest, if any, on such Securities are payable as specified as
contemplated by Sections 3.01 and 10.02.
"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 3.07 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupons
appertains, as the case may be.
"principal" of a Security means the principal of the Security plus
the premium, if and when applicable, on the Security.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, 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.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.01.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
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"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Indebtedness" of the Company means (a) the principal,
premium, if any, and interest, if any, with respect to all indebtedness for
money borrowed of the Company whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, unless in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that such indebtedness is not senior or prior in right of
payment to the Securities and (b) amendments, supplements, deferrals, renewals,
extensions, modifications and refundings of any liability of the types referred
to in clause (a) above.
"series" means a series of Securities or the Securities of the
series.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Special Record Date" for the payment of any Defaulted Interest on
the Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 3.08.
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"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, as such date may
be extended pursuant to the provisions of Section 3.09.
"Subsidiary" means, with respect to any Person, (i) a corporation of
which at the time of determination such Person, one or more Subsidiaries of such
Person or such Person and one or more Subsidiaries of such Person, directly
and/or indirectly, owns more than 50% of the shares of Voting Stock or (ii) any
other Person (other than a corporation) in which such Person, one or more
Subsidiaries of such Person or such Person and one or more Subsidiaries of such
Person, directly or indirectly, at the date of determination thereof has at
least majority ownership interest and the power to direct the policies,
management and affairs thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture was executed,
except as provided in Section 9.05.
"Trustee" means the Person named as the "Trustee" in the first
paragraph hereof or an indenture supplemental to this Indenture 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; provided, however, that if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to Securities of that
series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.01, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the Company's option.
"Valuation Date" has the meaning specified in Section 3.13(c).
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"Voting Stock" 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, trustees or individuals performing similar
functions of a Person (irrespective of whether or not at the time stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been satisfied and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been satisfied, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, including, without
limitation, the certificate of authentication provided pursuant to Section 3.03,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
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 satisfied; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been satisfied.
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Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer has actual knowledge, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel has actual knowledge, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 Acts of Holders; Record Date.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article 18, or a combination of such instruments and any such record. Except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any
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Person of a Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 1.04. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 18.06.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, and to the extent required by this Indenture shall, fix any day
as the record date for the purpose of determining the Holders of Securities of
any series entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders of Securities of such
series; provided, however, that in no event may the Company set a record date
for the purpose of determining the Holders of the Securities entitled to give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action pursuant to Section 5.01, 5.02 (other than the third paragraph
thereof), 5.07 or 5.12. Except as otherwise provided herein, if not set by the
Company prior to the first solicitation of a Holder of Securities of such series
made by any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 7.01) prior to such first solicitation or
vote, as the case may be. With regard to any record date for action to be given
or taken or voted upon by the Holders of one or more series of Securities, only
the Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(e) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to
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be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 1.05 Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing and mailed, first-class postage prepaid or
transmitted via facsimile, to or with the Trustee at its Corporate
Trust Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid or transmitted via facsimile, to the Company addressed to it
at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register within the time
prescribed for the giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed
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to have been received by such Holder, whether or not such Holder actually
receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 3.01, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in The City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of the first such publication.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.07 Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded,
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the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded.
Section 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.12 Governing Law.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS
INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT OF 1939, AS
AMENDED, THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT
APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section 1.13) payment of interest, principal or premium,
if any, need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date or sinking
fund payment date, or at the Stated Maturity or Maturity; provided,
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however, that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
ARTICLE 2
SECURITY FORMS
Section 2.01 Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution, an
Officers' Certificate or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification (including, without
limitation, CUSIP numbers) and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. Any
portion of the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities shall have interest coupons attached and shall have the following
statement in English on both the face of the obligation and on each interest
coupon: "Any United States person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165(j) and 1287(a) of the Internal Revenue Code of 1986, as
amended."
The Trustee's certificate of authentication on all Securities shall
be in substantially the form set forth in this Article 2.
The definitive Securities and coupons shall be printed, lithographed
or engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities or coupons.
Section 2.02 Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
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State Street Bank and Trust Company, N.A.,
as Trustee
By:
----------------------------
Authorized Officer
Section 2.03 Securities Issuable in Global Form.
(a) If the Company shall establish, as contemplated by Section 3.01,
that the Securities of a particular series are to be issued in whole or in part
in the form of one or more Global Securities, then, notwithstanding clause (8)
of Section 3.01, the Company shall execute and the Trustee or its agent shall,
in accordance with Section 3.03 and the Company Order delivered to the Trustee
thereunder, authenticate and deliver such Global Security or Securities which
(1) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities of such series from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or decreased to
reflect exchanges, (2) shall be registered in the name of the Depositary for
such Global Security or Securities or its nominee; (3) shall be delivered by the
Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and (4) shall bear the legend set forth in Section 2.04.
(b) Notwithstanding any other provisions of this Section 2.03 or of
Section 3.06, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Security expressly permit such Global Security to be exchanged
in whole or in part for individual Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section
3.06, only to a nominee of the Depositary for such Global Security, or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
(c) (1) If at any time the Depositary for a Global Security of a
series notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security of such series or if at any time the
Depositary for the Global Security of such series shall no longer be eligible,
the Company shall appoint a successor Depositary with respect to such Global
Securities. If a successor Depositary for such Global Securities is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company will execute, and the
Trustee or its agent, upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series in exchange for such Global
Security, will authenticate and deliver, individual Securities of such series of
like tenor and terms in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security.
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(2) The Company may at any time and in its sole discretion
determine that the Securities of any series or a portion thereof
issued or issuable in the form of one or more Global Securities shall
no longer be represented by such Global Security or Securities. In
such event, the Company will execute, and the Trustee, upon receipt
of a Company Order, will authenticate and deliver individual
Securities of such series of like tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such series in exchange
for such Global Security or Securities.
(3) If specified by the Company as contemplated by Section
3.01 with respect to Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Securities may
surrender such Global Security in exchange in whole or in part for
individual Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the
Trustee shall authenticate and deliver:
(i) to each party specified by such Depositary, a new
Security or Securities of the same series, of any authorized
denomination as requested by such party in aggregate principal
amount equal to and in exchange for such party's beneficial
interest in the Global Security; and
(ii) to such Depositary, a new Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders
thereof.
(4) Upon the exchange of the Global Security for Securities
in definitive form, such Global Security shall be cancelled by the
Trustee. Securities issued in exchange for a Global Security pursuant
to this Section 2.03 shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the parties in whose names such Securities are so
registered.
(d) Any endorsement of a Global Security to reflect the amount, or
any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 3.03 or Section 3.04. Subject
to the provisions of Section 3.03 and, if applicable, Section 3.04, the Trustee
shall deliver and redeliver any permanent Global Security in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.03 or Section
3.04 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a
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Global Security shall be in writing but need not comply with Section 1.02 and
need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.08, unless otherwise
specified as contemplated by Section 3.01, payment of principal of, and any
premium and interest on, any permanent Global Security shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.10 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent Global Security (i) in the
case of a permanent Global Security in registered form, the Depositary or such
other Holder of such permanent Global Security in registered form, or (ii) in
the case of a permanent Global Security in bearer form, Euroclear or CEDEL S.A.
as specified by the Common Depositary for such Global Securities.
Section 2.04 Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
"This Security is a Global Security within the meaning of
the Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee of a Depositary. This Security is not
exchangeable for Securities registered in the name of a Person other
than the Depositary or its nominee except in the limited
circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary)
may be registered except in the limited circumstances described in
the Indenture."
ARTICLE 3
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or
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more Board Resolutions and, subject to Section 3.03, set forth in, or determined
in the manner provided in, an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable (each of which, if so
provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that 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, 11.07 or 13.05);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such
interest, if any, shall accrue, or the method by which such date or
dates shall be determined, the Interest Payment Dates on which such
interest, if any, shall be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date or dates
shall be determined, and the basis upon which interest shall be
calculated if other than on the basis of a 360-day year of twelve
30-day months;
(5) subject to Sections 3.05 and 10.02, the place or
places, if any, other than or in addition to the Borough of
Manhattan, The City of New York, where the principal, premium, if
any, and interest, if any, on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered
for registration of transfer, Securities of the series may be
surrendered for exchange and, if different than the location
specified in Section 1.06, the place or places where notices or
demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(6) the period or periods within which, the price or prices
at which, the Currency in which, and other terms and conditions upon
which Securities of the series may be redeemed, in whole or in part,
at the option of the Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series pursuant to any sinking fund or
analogous
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provision or at the option of a Holder thereof, and the period or
periods within which, the price or prices at which, the Currency in
which, and other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(9) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(10) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series that
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.02 or the method by which such portion
shall be determined;
(11) if other than Dollars, the Currency in which payment
of the principal, premium, if any, or interest, if any, on the
Securities of the series shall be payable or in which the Securities
of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of
any of the provisions of Section 3.13;
(12) whether the amount of payments of principal, premium,
if any, or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or
more Currencies, commodities, equity indices or other indices), and
the manner in which such amounts shall be determined;
(13) whether the principal, premium, if any, and interest,
if any, on the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a Currency other than
that in which such Securities are denominated or stated to be
payable, the period or periods within which (including the Election
Date), and the terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate
between the Currency in which such Securities are denominated or
stated to be payable and the Currency in which such Securities are to
be so payable, in each case in accordance with, in addition to or in
lieu of any of the provisions of Section 3.13;
(14) the designation of the initial Exchange Rate Agent, if
any;
(15) any provisions in modification of, in addition to or
in lieu of the provisions of Article 14 that shall be applicable to
the Securities of the series;
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(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(17) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form
with or without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which
any such exchanges may occur, if other than in the manner provided in
Section 3.06, whether Registered Securities of the series may be
exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations), whether Bearer Securities of the
series may be exchanged for Registered Securities of the series, and
the circumstances under which and the place or places where such
exchanges may be made and if Securities of the series are to be
issuable in global form, the identity of any initial depository
therefor;
(19) the date as of which any Bearer Securities of the
series and any temporary Global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(20) the Person to whom any interest on any Registered
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, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary
Global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 3.08;
(21) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and/or terms of such certificates, documents or conditions;
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(22) if the Securities of the series are to be issued upon
the exercise of warrants or upon the conversion or exchange of other
securities, the time, manner and place for such Securities to be
authenticated and delivered;
(23) whether and under what circumstances the Company will
pay Additional Amounts as contemplated by Section 10.05 on the
Securities of the series to any Holder who is not a United States
person (including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of any such
option);
(24) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be
so convertible or exchangeable; and
(25) any other terms, conditions, rights and preferences
(or limitations on such rights and preferences) relating to the
series (which terms shall not be inconsistent with the requirements
of the Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above (subject to
Section 3.03) and set forth in the Officers' Certificate referred to above or in
any indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, a copy of an appropriate record of
such Board Resolutions shall be delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the series.
Section 3.02 Denominations.
All Securities shall be issuable in such denominations as shall be
specified as contemplated by Section 3.01. With respect to Securities of any
series denominated in Dollars, in the absence of any such provisions, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than the Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$1,000.
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Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman of the Board, Chief Executive Officer,
its President, its Chief Financial Officer, any Vice President, its Treasurer,
any Assistant Treasurer, its Secretary or any Assistant Secretary. The signature
of any of these officers on the Securities or coupons may be the manual or
facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series together with
any coupon appertaining thereto, 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 such Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided, further,
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 3.01, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture, dated no earlier than 15 days prior to the earlier of the
date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section 3.03 and Section 3.04, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary Global Security shall be deemed to be
delivered in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section 3.06,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If not all the Securities of any series are to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining terms of particular
Securities of such series such as interest rate, maturity date, date of issuance
and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be
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entitled to receive, and (subject to TIA Sections 315(a) through 315(d)) shall
be fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and delivered by
the Company to the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization and other similar laws of
general applicability relating to or affecting the enforcement of creditors'
rights, to general equitable principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders of such
Securities and any coupons.
Notwithstanding the provisions of Section 3.01 and of the preceding
two paragraphs, if less than all the Securities of any series are to be issued
at one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 3.01 or the Company Order and Opinion of
Counsel otherwise required pursuant to the preceding two paragraphs prior to or
at the time of issuance of each Security, but such documents shall be delivered
prior to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any
such Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 3.01, or, if no such terms are specified, the date of
its original issuance.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of a Responsible
Officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
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In the event Securities are issued in electronic or other
uncertificated form, such Securities may be validly issued without the
signatures contemplated by this Section 3.03.
Section 3.04 Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities of such
series. Temporary Securities of any series shall be issuable in any authorized
denominations, and in the form approved from time to time by or pursuant to a
Board Resolution, but with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such temporary Securities may
determine, as conclusively evidenced by their execution of such Securities.
(b) Except in the case of temporary Global Securities (which, except
as otherwise provided in Section 3.01, shall be exchanged in accordance with the
provisions of Section 2.03, without unnecessary delay, the Company shall
execute, and the Trustee shall authenticate, definitive Securities of the same
series evidenced by the temporary Securities in exchange for the temporary
Securities. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of
such series. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
the same series of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 3.03.
(c) If temporary Securities of any series are issued in the form of a
Global Security, any such temporary Global Security shall, unless otherwise
specified as contemplated by Section 3.01, be delivered (i) if in the United
States, to the Depositary or custodian for the Depositary or (ii) if outside the
United States, to the London, England, office of a depositary or common
depositary (the "Common Depositary"), for the benefit of Euroclear and CEDEL
S.A., for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or after
the Exchange Date such temporary Global Security shall be surrendered by the
Depositary or the Common Depositary, as applicable, to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary Global
Security, an equal aggregate principal amount of definitive Securities of the
same
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series of authorized denominations and of like tenor as the portion of such
temporary Global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary Global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 3.01, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that, unless otherwise
specified in such temporary Global Security, upon such presentation by the
Common Depositary, such temporary Global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary Global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by CEDEL S.A. as to the portion of such temporary Global Security held
for its account then to be exchanged, each in the form set forth in Exhibit A-2
to this Indenture (or in such other form as may be established pursuant to
Section 3.01); provided, further, that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary Global Security only in
compliance with the requirements of Section 3.03.
Unless otherwise specified in such temporary Global Security, the
interest of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs the
Depositary, Participant or an agent thereof or Euroclear or CEDEL S.A., as the
case may be, to request such exchange on his behalf and delivers to the
Depositary, Participant or an agent thereof or Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A-1 to this
Indenture (or in such other form as may be established pursuant to Section
3.01), dated no earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of the Depositary, directly or
through a Participant, or an agent thereof or Euroclear and CEDEL S.A., the
Trustee, any Authenticating Agent appointed for such series of Securities and
each Paying Agent. Unless otherwise specified in such temporary Global Security,
any such exchange shall be made free of charge to the beneficial owners of such
temporary Global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of the Depositary, Participant or an agent thereof or
Euroclear or CEDEL S.A. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary Global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.01, interest payable on a temporary
Global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to the Paying
Agent or to Euroclear and CEDEL S.A., as applicable, in the latter case, on such
Interest Payment Date upon delivery by Euroclear and CEDEL S.A. to the Trustee
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of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other form as may be established pursuant to Section
3.01), for credit without further interest on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial owners of
such temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL S.A., as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 3.01). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 3.04 and of the third paragraph of Section 3.03 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary Global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary Global Security will be
made unless and until such interest in such temporary Global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by the Paying Agent or Euroclear and CEDEL S.A. and not paid as herein
provided shall be returned to the Trustee immediately prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the Company
in accordance with Section 10.03.
Section 3.05 Securityholder Lists.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers maintained
in the Corporate Trust Office of the Trustee and in any other office or agency
of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities, of transfers of Registered Securities, for payment of
Securities and for conversion. The Security Register shall be in written form or
any other form capable of being converted into written form within a reasonable
time. At all reasonable times, the Security Register shall be open to inspection
by the Trustee. The Trustee is hereby initially appointed as security registrar
(the "Security Registrar") for the purpose of registering Registered Securities
and transfers of Registered Securities as herein provided.
Section 3.06 Transfer and Exchange.
(a) General. 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.
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Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the Security
Registrar) 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, 11.07 or 13.05 not involving any
transfer.
The Company shall not be required (i) to issue, to register the
transfer of or to exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for redemption
of Securities of that series under Section 11.03 or 12.03 and ending at the
close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided,
however, that such Registered Security shall be simultaneously surrendered for
redemption, or (iv) to issue, to register the transfer of or to exchange any
Security which has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Security not to be so repaid.
(b) Transfers and Exchanges of Definitive Securities. Where a
Registered Security (other than a Global Security except as set forth herein) is
presented to the Security Registrar with a request to register a transfer, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
Where a Registered Security (other than a Global Security except as
set forth herein) of any series is presented to the Security Registrar with a
request to exchange them for an equal principal amount of Registered Securities
of the same series, of any authorized denomination and of a like aggregate
principal amount, upon surrender of the Registered Securities to be exchanged at
such office or agency, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 3.01, Bearer Securities may not
be issued in exchange for Registered Securities.
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If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 3.03) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 3.01, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
10.02, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security. If any such mutilated Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, with coupons corresponding to
the coupons, if any, appertaining to the surrendered Security, pay, or direct
the Trustee to pay, such Security or coupon.
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If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon 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 or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security for which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or
stolen coupon appertains. If any such destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, with coupons corresponding to
the coupons, if any, appertaining to such destroyed, lost or stolen Security or
to the Security to which such destroyed, lost or stolen coupon appertains, pay
such Security or coupon.
Upon the issuance of any new Security under this Section 3.07, 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 with its coupons, if any, issued
pursuant to this Section 3.07 in lieu of any destroyed, lost or stolen Security
or in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section 3.07 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 or
coupons.
Section 3.08 Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, interest on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 10.02; provided, however, that each
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the
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written order of the Person entitled thereto pursuant to Section 3.10, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located in the United States.
Unless otherwise provided as contemplated by Section 3.01 with
respect to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 3.01, every
permanent Global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of the Paying Agent with respect to
that portion of such permanent Global Security held for its account by the
Depositary (or its custodian or agent) and Euroclear and CEDEL S.A. with respect
to that portion of such permanent Global Security held for its account by the
Common Depositary, for the purpose of permitting each of the Paying Agent,
Euroclear and CEDEL S.A. to credit the interest received by it in respect of
such permanent Global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date and any applicable grace period 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 and, if applicable, interest on such
defaulted interest (to the extent lawful) at the rate specified in the
Securities of such series (such defaulted interest and, if applicable, interest
thereon herein collectively called "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 Registered 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
Registered 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 in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.13(b), 3.13(d) and 3.13(e))
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 on or 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. 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
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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 in the manner provided 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 given, such Defaulted
Interest shall be paid to the Persons in whose name the Registered
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 Registered 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 3.08 and Section
3.06, 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.
Section 3.09 Optional Extension of Stated Maturity.
The provisions of this Section 3.09 may be made applicable to any
series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01).
The Stated Maturity of any Security of such series may be extended at the option
of the Company for the period or periods specified on the face of such Security
(each an "Extension Period") up to but not beyond the date (the "Final
Maturity") set forth on the face of such Security. The Company may exercise such
option with respect to any Security by notifying the Trustee of such exercise at
least 50 but not more than 60 days prior to the Stated Maturity of such Security
in effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 1.06, to the Holders of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate applicable to the Extension
Period and (iv) the provisions, if any, for redemption during such Extension
Period. Upon the Trustee's transmittal of the Extension Notice, the Stated
Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
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Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 1.06, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article 13 for repayment at the option
of Holders, except that the period for delivery or notification to the Trustee
shall be at least 25 but not more than 35 days prior to the Original Stated
Maturity and except that, if the Holder has tendered any Security for repayment
pursuant to an Extension Notice, the Holder may by written notice to the Trustee
revoke such tender for repayment until the close of business on the tenth day
before the Original Stated Maturity.
Section 3.10 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
shall treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment of
principal, premium, if any, and (subject to Sections 3.06 and 3.08) interest, if
any, on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and none of the Company, the Trustee or any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such Global Security or impair, as between such depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.
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Section 3.11 Cancellation.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section 3.11, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures and certification of their disposal
delivered to the Company unless by Company Order the Company shall direct that
cancelled Securities be returned to it.
Section 3.12 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 with
respect to any Securities, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.13 Currency and Manner of Payments in Respect of
Securities.
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in paragraph
(d) below, payment of the principal, premium, if any, and interest, if any, on
any Registered Security or Bearer Security of such series will be made in the
Currency in which such Registered Security or Bearer Security, as the case may
be, is payable. The provisions of this Section 3.13 may be modified or
superseded with respect to any Securities pursuant to Section 3.01.
(b) It may be provided pursuant to Section 3.01 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal, premium, if
any, or interest, if any, on such Registered Securities in any of the Currencies
which may be designated for such election by delivering to the Trustee a written
election with signature guarantees and in the applicable form established
pursuant to Section 3.01, not later than
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the close of business on the Election Date immediately preceding the applicable
payment date. If a Holder so elects to receive such payments in any such
Currency, such election will remain in effect for such Holder or any transferee
of such Holder until changed by such Holder or such transferee by written notice
to the Trustee (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change of
election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article 4
or with respect to which a notice of redemption has been given by the Company or
a notice of option to elect repayment has been sent by such Holder or such
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee not later than the close of business
on the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant Currency as provided in Section 3.13(a). The
Trustee shall notify the Exchange Rate Agent as soon as practicable after the
Election Date of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 3.01, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 3.01, then, not later than the fourth Business Day after the Election
Date for each payment date for Registered Securities of any series, the Exchange
Rate Agent will deliver to the Company a written notice specifying, in the
Currency in which Registered Securities of such series are payable, the
respective aggregate amounts of principal, premium, if any, and interest, if
any, on the Registered Securities to be paid on such payment date, and
specifying the amounts in such Currency so payable in respect of the Registered
Securities as to which the Holders of Registered Securities of such series shall
have elected to be paid in another Currency as provided in paragraph (b) above.
If the election referred to in paragraph (b) above has been provided for
pursuant to Section 3.01 and if at least one Holder has made such election,
then, unless otherwise specified pursuant to Section 3.01, on the second
Business Day preceding such payment date the Company will deliver to the Trustee
for such series of Registered Securities an Exchange Rate Officer's Certificate
in respect of the Dollar or Foreign Currency payments to be made on such payment
date. Unless otherwise specified pursuant to Section 3.01, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who have elected
payment in a Currency as provided in paragraph (b) above shall be determined by
the Company on the basis of the applicable Market Exchange Rate in effect on the
third Business Day (the "Valuation Date") immediately preceding each payment
date, and such determination shall be conclusive and binding for all purposes,
absent manifest error.
(d) If a Currency Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal, premium, if any, and
interest, if any, on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date
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on which such Foreign Currency was used (the "Currency Conversion Date"), the
Dollar shall be the Currency of payment for use on each such payment date.
Unless otherwise specified pursuant to Section 3.01, the Dollar amount to be
paid by the Company to the Trustee and by the Trustee or any Paying Agent to the
Holders of such Securities with respect to such payment date shall be, in the
case of a Foreign Currency other than a currency unit, the Dollar Equivalent of
the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent
of the Currency Unit, in each case as determined by the Exchange Rate Agent in
the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Currency Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election; and if a Currency Conversion Event occurs
with respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Currency Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of paragraph (h) below
shall be the sum of each amount obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.13 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the Currency Conversion
Date, was a component currency of the relevant currency unit, including, but not
limited to, the Euro.
A "Specified Amount" of a Component Currency shall mean the number of units of
such Component Currency or fractions thereof which were represented in the
relevant currency unit, including, but not limited to, the Euro, on the Currency
Conversion Date. If after the Currency Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Currency Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single
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Currency, and such amount shall thereafter be a Specified Amount and such single
Currency shall thereafter be a Component Currency. If after the Currency
Conversion Date any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall be replaced by
amounts of such two or more currencies, having an aggregate Dollar Equivalent
value at the Market Exchange Rate on the date of such replacement equal to the
Dollar Equivalent value of the Specified Amount of such former Component
Currency at the Market Exchange Rate immediately before such division and such
amounts shall thereafter be Specified Amounts and such currencies shall
thereafter be Component Currencies. If, after the Currency Conversion Date of
the relevant currency unit, including, but not limited to, the Euro, a Currency
Conversion Event (other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation Date, the Specified
Amount of such Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Currency Conversion Date of such Component
Currency.
"Election Date" shall mean the date for any series of Registered Securities as
specified pursuant to clause (13) of Section 3.01 by which the written election
referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of such Securities denominated or payable
in the relevant Currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Currency Conversion Event has occurred with respect to a Foreign Currency, the
Company will immediately give written notice thereof to the Trustee and to the
Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the
manner provided for in Section 1.06 to the affected Holders) specifying the
Currency Conversion Date. In the event the Company so determines that a Currency
Conversion Event has occurred with respect to the Euro or any other currency
unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee and to the Exchange Rate
Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 1.06 to the affected Holders) specifying the Currency
Conversion Date and the Specified Amount of each Component Currency on the
Currency Conversion Date. In the event the Company determines in good faith that
any subsequent change in any Component Currency as set forth in the definition
of Specified Amount above has occurred, the Company will similarly give written
notice to the Trustee and the Exchange Rate Agent.
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The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
Section 3.14 Appointment and Resignation of Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.01, if and so
long as the Securities of any series (i) are denominated in a Currency other
than Dollars or (ii) may be payable in a Currency other than Dollars, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent
to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.01 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued Currency into the applicable payment Currency for the payment of
principal, premium, if any, and interest, if any, pursuant to Section 3.13.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section 3.14 shall become
effective until the acceptance of appointment by the successor Exchange Rate
Agent as evidenced by a written instrument delivered to the Company and the
Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
Section 3.15 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP," "CINS" and
"ISIN" numbers (if then generally in use), and, if so, the Trustee shall use
CUSIP, CINS or ISIN numbers as applicable, in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP, CINS or ISIN numbers.
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ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities (except as to any surviving
rights of registration of transfer or exchange of Securities of such series
herein expressly provided for and the obligation of the Company to pay any
Additional Amounts as contemplated by Section 10.05) and the Trustee shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
Section 3.06, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.07, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 11.06,
and (iv) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company and
thereafter repaid to the Company, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i)
or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under arrangements
reasonably satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
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and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee funds in trust
for the purpose an amount, in the Currency in which the Securities of such
series are payable or in U.S. Government Obligations, sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal, premium, if any, and interest,
if any, 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 an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been
satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.06, the obligations of
the Trustee to any Authenticating Agent under Section 6.11 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section 4.01, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.03 shall survive.
Section 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal,
premium, if any, and interest, if any, for whose payment such money has been
deposited with the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
Section 4.03 Repayment of Trust Money.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon request any excess money or securities, other than for the payment
of principal and interest, held by them at any time
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest that
remains unclaimed for two years. After payment to the Company, Holders entitled
to the money must look to the Company for payment as unsecured general creditors
unless an abandoned property law designates another Person.
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ARTICLE 5
REMEDIES
Section 5.01 Events of Default.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any installment of interest
on any Security of that series, or any related coupon, when such
interest or coupon becomes due and payable, and continuance of such
default for a period of 60 days; provided, however, that a valid
extension of an interest payment period by the Company in accordance
with the terms of any particular series of Securities established as
contemplated by this Indenture, shall not constitute a default in the
payment of interest for purposes of this Indenture; or
(2) default in the payment of all or part of the principal,
and premium, if any, of any Security of that series as and when the
same shall become due and payable either at its Maturity, upon
redemption (including redemption for a sinking fund), by declaration
or otherwise; or
(3) default in the deposit of any sinking fund payment when
and as due by the terms of the Securities of that series and Article
12 which default shall continue for a period of 60 days; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a default in
the performance, or breach of a covenant or warranty which is
specifically dealt with elsewhere in this Section 5.01 and other than
those exclusively set forth in the terms of any particular series of
Securities as contemplated in this Indenture), and continuance of
such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount (or principal amount at maturity, as the case may
be) of all Outstanding Securities of the affected 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) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company, or of substantially all of the property of
the
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Company, or ordering the winding up or liquidation of the affairs of
the Company, and the continuance of any such decree or order unstayed
and in effect for a period of 90 consecutive days; or
(6) the Company shall consent to the institution of
bankruptcy or insolvency proceedings against it, or shall file a
petition or answer or consent seeking reorganization or relief under
any applicable bankruptcy, insolvency or other similar law, or shall
consent to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company, or of substantially all of the
property of the Company, or the making by the Company of an
assignment for the benefit of creditors; or
(7) any other Event of Default provided with respect to
Securities of that series.
The failure to redeem any Security subject to a Conditional
Redemption is not an Event of Default if any event on which such redemption is
so conditioned does not occur and is not waived before the scheduled redemption
date.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2), (3), (4) or (7)
of Section 5.01 with respect to Securities of any series at the time Outstanding
occurs and is continuing, then in each and every such case, unless the principal
of all of the Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in principal
amount (or principal amount at maturity, as applicable) of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Securities of that series and interest accrued thereon, if any, to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified portion thereof) and interest accrued thereon, if any,
shall become immediately due and payable.
If an Event of Default described in clause (5) or (6) of Section 5.01
occurs and is continuing, then the principal amount and interest accrued
thereon, if any, of all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made,
the Holders of a majority in principal amount (or principal amount at maturity,
as applicable) of the Outstanding Securities of that series (or of all series,
as the case may be), by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events
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of Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of acceleration.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security and any related coupon when such interest
becomes due and payable and such default continues for a period of 60
days, or
(2) default is made in the payment of the principal and
premium, if any, on any Security at the Maturity thereof, which
default continues for five or more days, then the Company will, upon
demand of the Trustee, pay to the Trustee for the benefit of the
Holders of such Securities and coupons, the whole amount then due and
payable on such Securities and coupons for principal, premium, if
any, and interest, if any, and interest on any overdue principal and
premium, if any, and to the extent that payment of such interest is
lawful on any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable,
including the reasonable fees and expenses of the Trustee incurred in connection
with such enforcement and collection, in the manner provided by law out of the
property of the Company, wherever situated.
If an Event of Default with respect to Securities of any series (or
of all series, as the case may be) 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 (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, including the right of the Trustee to
receive payment of the reasonable fees and expenses of the Trustee under this
Indenture and in connection therewith, 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.
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Section 5.04 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or the property of the Company or
its creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal, premium, if any, or
interest, if any) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal, premium, if any, or such portion of the principal amount
of any series of Original Issue Discount Securities as may be
specified in the terms of such series, and interest owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.05 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of
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the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities and coupons in respect of which such judgment has been recovered.
Section 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article 5 shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal, premium,
or interest, if any, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
6.06;
Second: To the payment of the amounts then due and unpaid for
principal, premium, if any, and interest, if any, on the Securities
and coupons 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
and coupons for principal, premium, if any, and interest, if any,
respectively; and
Third: The balance, if any, to the Person or Persons entitled thereto
including, without limitation, the Company.
Section 5.07 Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount
(or principal amount at maturity, as applicable) of the Outstanding
Securities of that series in the case of any Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 5.01, or, in
the case of any Event of Default described in clause (5) or (6) of
Section 5.01, the Holders of not less than 25% in principal amount
(or principal amount at maturity, as applicable) of all Outstanding
Securities, 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;
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(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
at least a majority or more in principal amount (or principal amount
at maturity, as applicable) of the Outstanding Securities of that
series in the case of any Event of Default described in clause (1),
(2), (3), (4) or (7) of Section 5.01, or, in the case of any Event of
Default described in clause (5) or (6) of Section 5.01, by the
Holders of a majority or more in principal amount (or principal
amount at maturity, as applicable) of all Outstanding Securities;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Securities of the same
series, in the case of any Event of Default described in clause (1),
(2), (3), (4) or (7) of Section 5.01, or of Holders of all Securities
in the case of any Event of Default described in clause (5) or (6) of
Section 5.01, 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 Holders of Securities of the
same series, in the case of any Event of Default described in clause
(1), (2), (3), (4) or (7) of Section 5.01, or of Holders of all
Securities in the case of any Event of Default described in clause
(5) or (6) of Section 5.01.
Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article 14) and
in such Security, of the principal, premium, if any, and (subject to Section
3.08) interest, if any, on, such Security or payment of such coupon on the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such
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Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders of Securities and coupons
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 3.07, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article 5 or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be, except as may be limited by a determination of a
court of competent jurisdiction.
Section 5.12 Control by Holders.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount (or principal amount at maturity, as
applicable) of the Outstanding Securities of such series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, relating to or arising under clause (1), (2), (3), (4) or (7) of
Section 5.01, and, with respect to all Securities, the Holders of not less than
a majority in principal amount (or principal amount at maturity, as applicable)
of all Outstanding Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, not relating to or
arising under clause (1), (2), (3), (4) or (7) of Section 5.01, provided that in
each case
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, which the Trustee may require to be
confirmed by an Opinion of Counsel,
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(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unjustly prejudicial to the
Holders of Securities of such series not consenting.
Section 5.13 Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in
principal amount (or principal amount at maturity, as applicable) of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default described in clause (1), (2),
(3), (4) or (7) of Section 5.01 (or, in the case of a default described in
clause (5) or (6) of Section 5.01, the Holders of not less than a majority in
principal amount (or principal amount at maturity, as applicable) of all
Outstanding Securities may waive any such past default), and its consequences,
except a default
(1) in respect of the payment of the principal, premium, if
any, or interest, if any, on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which
under Article 9 cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, any 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 Event of Default or impair any right consequent thereon.
ARTICLE 6
THE TRUSTEE
Section 6.01 Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal, premium, if any, or interest, if any, on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
such series and any related coupons.
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Section 6.02 Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any coupons appertaining thereto pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or
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negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture. The Trustee shall not be required to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
Section 6.03 Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.04 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 6.05 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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Section 6.06 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Company under this Section 6.06 to compensate
the Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal, premium, if any, or interest, if any, on
particular Securities or any coupons.
Section 6.07 Corporate Trustee Required; Eligibility; Conflicting
Interest.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The
Trustee (or in the case of a banking corporation included in a bank holding
company system, the related bank holding company) shall always have a combined
capital and surplus of at least $50,000,000 and shall be obligated to assume any
liabilities of such banking corporation. Each successor trustee shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 6.07, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall
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cease to be eligible in accordance with the provisions of this Section 6.07, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 6.08 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article 6 shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.09.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.09 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) 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
6.07 and shall fail to resign 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
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
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.
The Company also may remove the Trustee with or without cause if the
Company so notifies the Trustee three months in advance and if no Default occurs
during the three-month period.
(d) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to
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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). 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 hereinafter provided, 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.
(e) 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 the Holders of Securities of such series in the manner provided for 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.
Section 6.09 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee, upon payment of
its charges, shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture
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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. 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 further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 1.01 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section 6.09, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article 6.
Section 6.10 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article 6,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities; and in
case at that time any of the Securities shall not have been authenticated, any
successor Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such Securities shall have the full force and effect as if such successor
Trustee had itself authenticated such Securities; provided, however,
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that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 6.11 Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 1.06. Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority, or a corporation organized and doing business
under the laws of a jurisdiction other than the United States of America, any
state thereof or the District of Columbia if such corporation is a wholly-owned
subsidiary of the Trustee (or of the bank holding company in whose system the
Trustee is included). If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 6.11, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.11, it shall resign immediately
in the manner and with the effect specified in this Section 6.11.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.11, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
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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 6.11, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 1.06. 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 6.11.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.11, and the
Trustee shall be entitled to be reimbursed by the Company for such payments,
subject to the provisions of Section 6.06.
If an appointment with respect to one or more series is made pursuant
to this Section 6.11, the Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY, N.A.
By
---------------------------------
as Authenticating Agent
By
---------------------------------
Authorized Officer
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company or the
Trustee or any
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agent of either of them shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders in accordance
with TIA Section 3.13, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 3.13(b).
Section 7.02 Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 15 if
required by TIA Section 313(a).
Section 7.03 Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit to all Holders, in the manner and to the
extent provided in TIA Section 313(c), within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section 7.03 as may be required by
rules and regulations prescribed from time to time by the Commission.
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ARTICLE 8
MERGER, CONSOLIDATION AND SALE OF ASSETS
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or sell, convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the entity formed by such consolidation or into which
the Company is merged or the Person which acquires by sale,
conveyance or transfer, or which leases, the properties and assets of
the Company substantially as an entirety (A) shall be a corporation,
partnership, limited liability company, trust or other entity
organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and (B) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the obligations of the Company for the due and punctual
payment of the principal of, premium, if any, and interest, if any,
on all the Securities and the performance and observance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
and
(3) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, conveyance, transfer
or lease and such supplemental indenture comply with this Article 8
and that all conditions precedent herein provided for relating to
such transaction have been satisfied.
This Section 8.01 shall only apply to a merger or consolidation in
which the Company is not the surviving corporation and to sales, conveyances,
leases and transfers by the Company as transferor or lessor.
Section 8.02 Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any sale, conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 8.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company
herein, and in the event of any such sale, conveyance or transfer,
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the Company, except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Securities and the
coupons.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
or pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Company and the Trustee, for any of the following purposes:
(1) to cure ambiguities, defects or inconsistencies, or to
make any other provisions with respect to questions or matters
arising under this Indenture; or
(2) to effect or maintain the qualification of the
Indenture under the Trust Indenture Act; or
(3) to secure the Securities; or
(4) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities and any related
coupons (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(5) to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 3.01; or
(6) to make any other change to the provisions of this
Indenture that does not adversely affect in all material respects the
rights of Holders hereunder; or
(7) to add any Guarantees; 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 6.09(b); or
(9) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
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(10) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all series
of Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(11) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest, if any, on Bearer
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or
to permit or facilitate the issuance of Securities in uncertificated
form; provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(12) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision; or
(13) to close this Indenture with respect to the
authentication and delivery of additional series of Securities or to
make any other provisions with respect to matters or questions
arising under this Indenture; provided, however, that such action
shall not adversely affect the interests of the Holders of Securities
of any series and any related coupons in any material respect; or
(14) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 4.01, 14.02 and 14.03; provided that any such action shall
not adversely affect the interests of the Holders of Securities of
such series and any related coupons or any other series of Securities
in any material respect.
Section 9.02 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount (or principal amount at maturity, as applicable) of all
Outstanding Securities of any series, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
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(1) subject to the provisions of Section 3.09, change the
Stated Maturity of the principal of, or any installment of 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 change any obligation of the Company to pay Additional
Amounts contemplated by Section 10.05 (except as contemplated by
Section 8.01(1) and permitted by Section 9.01(1)), or reduce the
amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02 or the amount thereof
provable in bankruptcy pursuant to Section 5.04, or adversely affect
any right of repayment at the option of any Holder of any Security,
or change any Place of Payment where, or the Currency in which, any
Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be), or adversely
affect any right to convert or exchange any Security as may be
provided pursuant to Section 3.01 herein, or
(2) reduce the percent in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this
Indenture, or reduce the requirements of Section 18.04 for quorum or
voting; or
(3) modify any of the provisions of this Section 9.02,
Section 5.13 or Section 10.07, except to increase any percentage
contained therein or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
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. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not 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
9.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
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Section 9.03 Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article 9 or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article
9, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article 9
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article 9 may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE 10
COVENANTS
Section 10.01 Payment of Principal, Premium, if any, and Interest, if
any.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay the principal of, premium, if any, and interest, if any, on the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent holds as
of 10:00 a.m. (New York City time) on the due date, money deposited by the
Company in immediately available funds and designated for and
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sufficient to pay all principal, premium, if any, and interest then due. Unless
otherwise specified as contemplated by Section 3.01 with respect to any series
of Securities, any interest installments due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
Section 10.02 Maintenance of Office or Agency.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that
are convertible may be surrendered for conversion, if applicable, and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described below (and not otherwise); (B)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that, if the Securities of that
series are listed on any stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in any required city located outside the
United States so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the office or
agency specified in the Security located outside the United
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States, and the Company hereby appoints the same as its agents to receive such
respective presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, no payment of principal, premium, if any, or interest, if any, on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, that, if the Securities of a series are payable in Dollars,
payment of principal of, premium, if any, and interest, if any, on any Bearer
Security shall be made at the office of the Company's Paying Agent in The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium, if any, or interest, if any, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities as contemplated by Section 3.01 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Trustee in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee, as Paying Agent in
such city as its agent to receive all such presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, if and so long as the Securities of any series (i) are denominated
in a Currency other than Dollars or (ii) may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
Section 10.03 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal, premium, if any, or interest, if any, on
any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if applicable, as
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provided in Sections 3.13(b), 3.13(d) and 3.13(e)) sufficient to pay the
principal, premium if any, or interest, if any, so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to or on each due
date of the principal, premium, if any, or interest, if any, on any Securities
of that series, deposit with a Paying Agent a sum (in the Currency described in
the preceding paragraph) sufficient to pay the principal, premium, if any, or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium, if any, or interest, if any,
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 (other than the Trustee) for
any series of Securities 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 10.03, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal, premium, if any, and interest, if any, on Securities of
such series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company
in the making of any payment of principal, premium, if any, or
interest, if any, on the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which 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
sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal, premium, if any, or interest, if any, on
any Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal, premium, if any, or interest, if
any, has become due and payable shall be paid to the Company, or (if then held
by the Company) shall be discharged from such
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trust; and the Holder of such Security or coupon shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company as hereinabove provided.
Section 10.04 Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, a certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 10.04, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
Section 10.05 Additional Amounts.
If any Securities of a series provide for the payment of additional
amounts to any Holder who is not a United States person in respect of any tax,
assessment or governmental charge ("Additional Amounts"), the Company will pay
to the Holder of any Security of such series or any coupon appertaining thereto
such Additional Amounts as may be specified as contemplated by Section 3.01.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal, premium, if any, or interest, if any, on, or in respect of, any
Security of a series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of a series, such mention shall
be deemed to include mention of the payment of Additional Amounts provided for
by the terms of such series established pursuant to Section 3.01 to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise specified as contemplated by Section 3.01, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and premium, if any, is
made), and at least 10 days prior to each date of payment of principal, premium,
if any, or interest, if any, if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or Paying Agents,
if other than the Trustee, with an Officers' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal,
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premium, if any, or interest, if any, on the Securities of that series shall be
made to Holders of Securities of that series or any related coupons who are not
United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities of that series or related coupons
and the Company will pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. In the event that the Trustee
or any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled to (i) assume that no such withholding or deduction is required with
respect to any payment of principal, premium, if any, or interest, if any, with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) make all payments of
principal, premium, if any, and interest, if any, with respect to the Securities
of a series or related coupons without withholding or deductions until otherwise
advised. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section 10.05.
Section 10.06 Corporate Existence.
Subject to Article 8, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company
and any Significant Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Significant Subsidiaries as a whole and provided
further that the foregoing does not prohibit any mergers or consolidations
between Subsidiaries or between the Company and one or more Subsidiaries so long
as any such merger or consolidation involving the Company complies with Article
8.
Section 10.07 Waiver of Certain Covenants.
The Company may, with respect to any series of Securities, omit in
any particular instance to comply with any term, provision or condition set
forth in Section 10.06, which affects such series, if before the time for such
compliance the Holders of at least a majority in principal amount (or principal
amount at maturity, as applicable) of all Outstanding Securities of any series,
by Act of such Holders, waive such compliance in such instance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
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ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 3.01 for Securities of
any series) in accordance with this Article 11.
Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 11.03. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 3.01.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
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Section 11.04 Notice of Redemption.
Except as otherwise specified as contemplated by Section 3.01, notice
of redemption shall be given in the manner provided for in Section 1.06 not less
than 30 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price
(together with accrued interest, if any, to the Redemption Date
payable as provided in Section 11.06) will become due and payable
upon each such Security, or the portion thereof, to be redeemed and,
if applicable, that interest thereon will cease to accrue on and
after said date;
(5) the place or places where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price;
(6) that the redemption is on account of a sinking fund, if
such is the case;
(7) whether the redemption is conditional as provided in
the last paragraph of this Section 11.04 and if so, the terms of the
conditions, and that, if the conditions are not satisfied or are not
waived by the Company, the Securities will not be redeemed and such a
failure to redeem will not constitute an Event of Default;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price unless security or indemnity satisfactory
to the Company, the Trustee and any Paying Agent is furnished; and
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to
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redemption on such Redemption Date pursuant to Section 3.05 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made.
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.
A notice of redemption may provide that the redemption described in
such notice is a Conditional Redemption and such notice of Conditional
Redemption shall be of no effect unless all such conditions to the redemption
have occurred before such date or have been waived by the Company.
Section 11.05 Deposit of Redemption Price.
Prior to any Redemption Date and subject to the satisfaction of any
conditions of a Conditional Redemption, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 3.01 for the Securities of such
series and except, if applicable, as provided in Sections 3.13(b), 3.13(d) and
3.13(e)) sufficient to pay the Redemption Price of, and accrued interest on, all
the Securities which are to be redeemed on that date.
Section 11.06 Securities Payable on Redemption Date.
Subject to the satisfaction of any conditions of a Conditional
Redemption and notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if applicable, as
provided in Sections 3.13(b), 3.13(d) and 3.13(e)) (together with accrued
interest, if any, to the Redemption Date), and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that the Redemption Price payable with respect to
Bearer Securities and any installments of interest on such Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 10.02) and with respect to such installments of
interest, unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of coupons for such interest, and provided further
that installments of interest on Registered Securities whose
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Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 3.08.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 10.02) and, unless otherwise specified as contemplated by Section 3.01,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in the Security.
Section 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article 11 or of Article 12) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.01 Applicability of Article.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article 12.
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The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any mandatory 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 of any series as provided for by the
terms of Securities of such series.
Section 12.02 Satisfaction of Sinking Fund Payments with Securities.
Subject to Section 12.03, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
Section 12.03 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if applicable, as
provided in Sections 3.13(b), 3.13(d) and 3.13(e)) and the portion thereof, if
any, which is to be satisfied by delivering or crediting Securities of that
series pursuant to Section 12.02 (which Securities shall, if not previously
delivered, accompany such certificate) and whether the Company intends to
exercise its right to make a permitted optional sinking fund payment with
respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that
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series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of such Securities subject to a mandatory sinking fund payment
without the option to deliver or credit Securities as provided in Section 12.02
and without the right to make any optional sinking fund payment, if any, with
respect to such series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 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.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.03) in cash a sum equal to
any interest that will accrue to the date fixed for redemption of Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 12.03.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, shall not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or, at the request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be reimbursed by the
Company) not in excess of the principal amount thereof.
ARTICLE 13
REPAYMENT AT OPTION OF HOLDERS
Section 13.01 Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article 13.
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Section 13.02 Repayment of Securities.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.03) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.13(b), 3.13(d) and 3.13(e)) sufficient to
pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
Section 13.03 Exercise of Option.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
Section 13.04 When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article 13
and as
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provided by or pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in the payment
of such Securities on such Repayment Date) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for repayment
in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Company, together with
accrued interest, if any, to the Repayment Date; provided, however, that coupons
whose Stated Maturity is on or prior to the Repayment Date shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 10.02) and, unless otherwise specified pursuant to Section
3.01, only upon presentation and surrender of such coupons, and provided further
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.08.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 13.02 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 10.02) and, unless
otherwise specified as contemplated by Section 3.01, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
Section 13.05 Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid at
the time of such exchange in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the
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expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid. The provisions of this
Section 13.05 shall not apply to Global Securities.
ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.01 Company's Option to Effect Defeasance or Covenant
Defeasance.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, the provisions of this Article 14 shall apply to each
series of Securities, and the Company may, at its option, effect defeasance of
the Securities of or within a series under Section 14.02, or covenant defeasance
of or within a series under Section 14.03, in accordance with the terms of such
Securities and in accordance with this Article 14.
Section 14.02 Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section 14.02 with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any related coupons on the date the conditions
set forth in Section 14.04 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 14.05 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons (i) to receive, solely from the
trust fund described in Section 14.04 and as more fully set forth in such
Section, payments in respect of the principal, premium, if any, and interest, if
any, on such Securities and any related coupons when such payments are due, and
(ii) to receive shares of common stock or other Securities from the Company upon
the conversion of any convertible securities issued hereunder, (B) the Company's
obligations with respect to such Securities under Sections 3.04, 3.05, 3.07,
10.02 and 10.03 and with respect to the payment of Additional Amounts, if any,
on such Securities as contemplated by Section 10.05, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article 14.
Subject to compliance with this Article 14, the Company may exercise its option
under this Section 14.02 notwithstanding the prior
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exercise of its option under Section 14.03 with respect to such Securities and
any related coupons.
Section 14.03 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section 14.03 with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 10.06 and 10.07 and, if
specified pursuant to Section 3.01, its obligations under any other covenant
(other than Section 10.01), with respect to such Outstanding Securities and any
related coupons on and after the date the conditions set forth in Section 14.04
are satisfied (hereinafter, "covenant defeasance"), and such Securities and any
related coupons shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any related coupons, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 5.01(4) or Section 5.01(7) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
related coupons shall be unaffected thereby.
Section 14.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 14.02 or Section 14.03 to any Outstanding Securities of or within a
series and any related coupons:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.07 who shall agree to comply with the
provisions of this Article 14 applicable to it) in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities and any related coupons, (A) money in an amount (in
such Currency in which such Securities and any related coupons are
then specified as payable at Stated Maturity), or (B) U.S. Government
Obligations applicable to such Securities (determined on the basis of
the Currency in which such Securities are then specified as payable
at Stated Maturity) which through the scheduled payment of principal
and interest, if any, in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment of principal, premium, if any, and interest, if any, under
such Securities and any related coupons, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent
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public accountants, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal, premium, if any, and interest, if any, on such
Outstanding Securities and any related coupons on the Stated Maturity
(or Redemption Date, if applicable) of such principal, premium, if
any, or installment or interest, if any, and (ii) any mandatory
sinking fund payments or analogous payments applicable to such
Outstanding Securities and any related coupons on the day on which
such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any related coupons;
provided, however, that the Trustee shall have been irrevocably
instructed, in writing, to apply such money or the proceeds of such
U.S. Government Obligations to said payments with respect to such
Securities and any related coupons. Before such a deposit, the
Company may give to the Trustee, in accordance with Section 11.02
hereof, a notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in accordance with the terms
of the Securities of such series and Article 11 hereof, which notice
shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(2) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture.
(3) In the case of covenant defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities and any related
coupons will not recognize income, gain or loss for federal income
tax purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant
defeasance had not occurred.
(4) Notwithstanding any other provisions of this Section
14.04, such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations in connection therewith pursuant to Section 3.01.
(5) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to either the
defeasance under Section 14.02 or the covenant defeasance under
Section 14.03 (as the case may be) have been satisfied.
Section 14.05 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all
money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 3.01) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee--collectively for purposes of this Section
14.05, the "Trustee") pursuant
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to Section 14.04 in respect of such Outstanding Securities and any related
coupons shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any related coupons and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities and any related coupons of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, if any, but such
money need not be segregated from other funds except to the extent required by
law.
Unless otherwise specified with respect to any Security pursuant to
Section 3.01, if, after a deposit referred to in Section 14.04(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.13(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 14.04(1) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 3.13(d) or 3.13(e) or by the
terms of any Security in respect of which the deposit pursuant to Section
14.04(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal, premium, if any, and interest,
if any, on such Security as they become due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the Currency in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable Market Exchange Rate for
such Currency in effect on the third Business Day prior to each payment date,
except, with respect to a Conversion Event, for such Currency in effect (as
nearly as feasible) at the time of the Conversion Event.
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 14.04 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 such Outstanding Securities and any related
coupons.
Anything in this Article 14 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 (or other property and any
proceeds therefrom) held by it as provided in Section 14.04 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article 14.
Section 14.06 Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 14.05 by reason of any order or judgment of any court or
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governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 14.02 or 14.03, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 14.05; provided, however, that if the Company
makes any payment of principal, premium, if any, or interest, if any, on any
such Security or any related coupon following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities and any related coupons to receive such payment from the money
held by the Trustee or Paying Agent.
ARTICLE 15
SUBORDINATION OF SECURITIES
Section 15.01 Securities Subordinate to Senior Indebtedness
If specified pursuant to Section 3.01 for Securities of any series,
the Company will covenant and agree, and each Holder of a Security, by such
Holder's acceptance thereof, likewise will covenant and agree, for the benefit
of the holders, from time to time, of Senior Indebtedness of the Company,
respectively, that, to the extent and in the manner hereinafter set forth in
this Article 15, the indebtedness represented by the Securities of such series
and the payment of the principal of (and premium, if any, on) and interest, if
any, on each and all of the Securities of such series are expressly made
subordinate and subject in right of payment as provided in this Article 15 to
the prior payment in full of all Senior Indebtedness of the Company.
Section 15.02 Payment over of Proceeds upon Dissolution, Etc.
In the event of (1) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (2) any liquidation, dissolution or other winding
up of the Company, as the case may be, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (3) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company then and in any such event:
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full (or provision is made for payment in money or money's
worth) of the principal thereof (and premium, if any, thereon) and interest
thereon (including, without limitation, all interest accruing after the
commencement of any bankruptcy, insolvency, receivership or similar proceeding),
before the Holders of the indebtedness evidenced by the Securities are entitled
to receive any payment or distribution of any kind or character on account of
principal (or premium, if any, on) or interest, if any, on such indebtedness;
and
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(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities to which the Holders or
the Trustee would be entitled but for the provisions of this Article 15 shall be
paid by the Company, by the liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the representative or
representatives of the holders of Senior Indebtedness, or to the trustee or
trustees under any indenture under which any instrument evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness;
(c) in the event that, notwithstanding the foregoing provisions of
this Section 15.02, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all Senior
Indebtedness of the Company as the case may be, is paid in full (or provision
therefor is made in money or money's worth), and such fact shall at or prior to
the time of such payment or distribution have been made known to the Trustee or
such Holder, as the case may be then such payment or distribution shall be paid
over to the representative or representatives of the holders of such Senior
Indebtedness, or to the trustee or trustees under any indenture under which any
instrument evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full
(or to provide for payment thereof in money or money's worth), after giving
effect to any concurrent payment or distribution to or for the holders of such
Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance or transfer of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set forth in Article 8
shall not be deemed a dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling of assets and liabilities
of the Company for the purposes of this Section 15.02 if the Person formed by
such consolidation or into which the Company as the case may be, is merged or
the Person which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article 8.
Section 15.03 No Payment When Senior Indebtedness in Default. (a)No
payments on account of the principal of (or premium, if any, on) or interest, if
any, on the Securities shall be made by the Company if, at the time of such
payment or immediately after giving effect thereto, there shall exist with
respect to any Senior Indebtedness of the Company or any agreement pursuant to
which any Senior Indebtedness is issued, any default in the payment of
principal, premium (if any) or
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interest in respect of such Senior Indebtedness beyond any applicable grace
period with respect thereto.
(b) In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provision of this Section 15.03, and such fact shall at or
prior to the time of such payment or distribution have been made known to the
Trustee or such Holder, as the case may be then and in such event such payment
shall be paid over and delivered forthwith to the Company.
Section 15.04 Payment Permitted if No Default. Nothing contained in
this Article 15 or elsewhere in this Indenture or in any of the Securities shall
prevent the Company at any time except during the pendency of any case,
proceeding, liquidation, dissolution or other winding up, assignment for the
benefit of creditors or other marshalling of assets and liabilities of the
Company referred to in Section 15.02 or under the conditions described in
Section 15.03, from making payments at any time of principal of (or premium, if
any, on) or interest, if any, on the Securities.
Section 15.05 Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the payment in full of all Senior Indebtedness (or the
making of provision therefor in money or money's worth), the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any, on) and interest, if any, on the Securities shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article 15, and no payments over pursuant to the provisions
of this Article 15 to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Indebtedness, and the Holders of the Securities, be deemed to
be a payment or distribution by the Company to or on account of the Senior
Indebtedness.
Section 15.06 Provisions Solely to Define Relative Rights. The
provisions of this Article 15 are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article 15 or elsewhere in this Indenture or in the Securities is intended
to or shall (a) impair, as among the Company, its creditors other than holders
of Senior Indebtedness and the Holders of the Securities, the obligation of the
Company which is absolute and unconditional, to pay to the Holders of the
Securities the principal of (and premium, if any, on) and interest, if any, on
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies
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otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article 15 of the holders of Senior
Indebtedness.
Section 15.07 Trustee to Effectuate Subordination. Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article 15 and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
Section 15.08 No Waiver of Subordination Provisions. (a) No right of
any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided (as the subordination provisions of this Article 15 may be
amended or supplemented from time to time in accordance with the provisions of
this Indenture) shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any non-compliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a) of
this Section 15.08, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this
Article 15 or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (1) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (2) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (3) release any Person liable in any manner for
the collection of Senior Indebtedness; and (4) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 15.09 Notice to Trustee. (a) The Company shall give prompt
written notice to the Trustee of any fact known to it which would prohibit the
making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article 15 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any fact that would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee, fiduciary or agent therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to TIA Sections 315(a) through 315(d),
shall be entitled in all respects to assume that no such facts exist; provided,
however, that, if the Trustee shall not have received the notice provided for in
this Section 15.09 at least five Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the
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principal of (or premium, if any, on) or interest, if any, on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it within five Business Days
prior to such date.
(b) Subject to TIA Sections 3.15(a) through 3.15(d), the Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or such holder's
representative or a trustee therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or such holder's representative or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 15, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 15 and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 15.10 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article 15, the Trustee, subject to TIA Sections 315(a)
through 315(d), and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 15.
Section 15.11 Rights of Trustee As a Holder of Senior Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article 15 with respect to any
senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Notwithstanding
anything to the contrary in this Indenture, nothing in this Article 15 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
14.01.
Section 15.12 Article Applicable to Paying Agents. In case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this Article
15 shall in such case
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(unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article 15 in addition to or
in place of the Trustee; provided, however, that Section 15.11 shall not apply
to the Company, the Guarantor or any of their respective Affiliates if it or
such Affiliate acts as Paying Agent.
Section 15.13 No Suspension of Remedies. Nothing contained in this
Article 15 shall limit the right of the Trustee or the Holders of Securities to
take any action to accelerate the maturity of the Securities pursuant to Article
5 or to pursue any rights or remedies hereunder or under applicable law.
Section 15.14 Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary, payments from cash or the proceeds of U.S.
Government Obligations held in trust under Article 14 hereof by the Trustee (or
other qualifying trustee) and which were deposited in accordance with the terms
of this Article 15 and not in violation of Section 15.03 hereof for the payment
of principal of (and premium, if any, on) and interest, if any, on the
Securities shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this Article 15, and
none of the Holders shall be obligated to pay over any such amount to the
Company or any holder of Senior Indebtedness or any other creditor of the
Company.
Section 15.15 Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness.
ARTICLE 16
Subordination of Note Guarantees
Section 16.01 Securities and Coupons Subordinated to Guarantor Senior
Indebtedness. The Company covenants and agrees, and each Holder of a Security or
coupon, by its acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by each Note Guarantee of a Guarantor with respect to a
series of Securities will be subordinated to the Guarantor Senior Indebtedness
of such Guarantor on the same basis as such series of Securities shall be
subordinated to Senior Indebtedness of the Company and to the extent and in the
manner provided in the Board Resolution, Officers' Certificate or indenture
supplemental hereto provided in accordance with Section 3.01 establishing the
series of Securities and Coupons, if any, to which such Note Guarantee relates.
ARTICLE 17
Guarantee of Securities
Section 17.01 Note Guarantee. Subject to the provisions of this Article 17, if
the Company specifies as contemplated by Section 3.01 that Securities of a
series
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are to be Guaranteed, each Guarantor shall, jointly and severally, fully,
unconditionally and irrevocably Guarantee to each Holder of such Securities and
to the Trustee on behalf of the Holders: (i) the due and punctual payment of the
principal of and interest on each Security, when and as the same shall become
due and payable, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal of and interest, if any,
on the Securities, to the extent lawful, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee, all in
accordance with the terms of such Security and this Indenture and (ii) in the
case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, at maturity,
by acceleration or otherwise, subject, however, in the case of clauses (i) and
(ii) above, to the limitations set forth in the next succeeding paragraph.
Each Note Guarantee shall rank equally and pari passu with all other
unsecured and unsubordinated debt of the Guarantor making such Note Guarantee.
Each Guarantor and, by its acceptance of a Security of such series,
each Holder shall confirm that it is the intention of all such parties that the
Guarantee by such Guarantor pursuant to its Note Guarantee not constitute a
fraudulent transfer or conveyance for purposes of the United States Bankruptcy
Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal or state law. To effectuate the foregoing intention, the
Holders and such Guarantor hereby irrevocably agree that the obligations of such
Guarantor under its Note Guarantee shall be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, but not limited to, the Guarantor Senior Indebtedness of
such Guarantor) and after giving effect to any collections from or payments made
by or on behalf of any other Guarantor in respect of the obligations of such
other Guarantor under its Note Guarantee or pursuant to the following paragraph,
result in the obligations of such Guarantor under its Note Guarantee not
constituting such fraudulent transfer or conveyance.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors shall agree, inter se, that in the event any payment
or distribution is made by any Guarantor (a "Funding Guarantor") under its Note
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to its Note Guarantee. "Adjusted Net Assets" of such Guarantor at
any date shall mean the lesser of the amount by which (x) the fair value of the
property of such Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date), but
excluding liabilities under the Note Guarantee, of such Guarantor at such date
and (y) the present fair salable value of the assets of such Guarantor at such
date exceeds the amount that will be required to
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pay the probable liability of such Guarantor on its debts (after giving effect
to all other fixed and contingent liabilities incurred or assumed on such date
and after giving effect to any collection from any Subsidiary of such Guarantor
in respect of the obligations of such Subsidiary under the Note Guarantee of
such Guarantor), excluding debt in respect of its Note Guarantee, as they become
absolute and matured.
Each Guarantor shall waive diligence, presentment, demand of payment,
filing of claims with a court in the event of merger or bankruptcy of the
Company, any requirement that the Trustee or any of the Holders protect, secure,
perfect or insure any security interest in or other Lien upon any property
subject thereto or exhaust any right or take any action against the Company or
any other Person, any right to require a proceeding first against the Company,
the benefit of discussion, protest or notice with respect to any such Security
or the debt evidenced thereby and all demands whatsoever (except as specified
above), and covenants that the Note Guarantee will not be discharged as to any
such Security except by payment in full of the principal thereof and interest
thereon and as provided in Section 4.01. The maturity of the obligations
Guaranteed thereby may be accelerated as provided in Article 5 for the purposes
of this Article 17. In the event of any declaration of acceleration of such
obligations as provided in Article 5, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Article 17. In addition, without limiting the foregoing
provisions, upon the effectiveness of an acceleration under Article 5, the
Trustee shall promptly make a demand for payment on the Securities under the
Note Guarantee provided for in this Article 17.
The obligations of each Guarantor under the Note Guarantee will be
independent of the obligations Guaranteed by such Guarantor hereunder, and a
separate action or actions may be brought and prosecuted by the Trustee on
behalf of, or by, the Holders, subject to the terms and conditions set forth in
this Indenture, against a Guarantor to enforce the Guaranty, irrespective of
whether any action is brought against the Company or whether the Company is
joined in any such action or actions.
If the Trustee or the Holder is required by any court or otherwise to
return to the Company or any Guarantor, or any custodian, receiver, liquidator,
trustee, sequestrator or other similar official acting in relation to the
Company or such Guarantor, any amount paid to the Trustee or such Holder in
respect of a Security, the Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each of the Guarantors further
agrees, to the fullest extent that it may lawfully do so, that, as between it,
on the one hand, and the Holders and the Trustee, on the other hand, the
maturity of the obligations Guaranteed thereby may be accelerated as provided in
Article 5 hereof for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations Guaranteed hereby.
Each of the Guarantors shall irrevocably waive any claim or other
rights which it may now or hereafter acquire against the Company or any other
Guarantor that arise from the existence, payment, performance or enforcement of
its obligations under
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the Note Guarantee and this Indenture, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Holders against the Company
or any Guarantor or any collateral which any such Holder or the Trustee on
behalf of such Holder hereafter acquires, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company or a
Guarantor, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to a Guarantor in violation of the preceding
sentence and the principal of and accrued interest on the Securities shall not
have been paid in full, such amount shall be deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Holders,
and shall forthwith be paid to the Trustee for the benefit of the Holders to be
credited and applied upon the principal of and accrued interest on the
Securities. Each of the Guarantors acknowledges that it will receive direct and
indirect benefits from the issuance of the Securities pursuant to this Indenture
and that the waivers set forth in this Section 17.01 are knowingly made in
contemplation of such benefits.
The Note Guarantee set forth in this Section 17.01 shall not be valid
or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
Section 17.02 Obligations Unconditional. Nothing contained in this
Article 17 or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as among any Guarantor and the Holders of the Securities, the
obligation of such Guarantor, which is absolute and unconditional, upon failure
by the Company to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of such Guarantor, nor shall anything herein
or therein prevent any Holder or the Trustee on their behalf from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture.
Without limiting the foregoing, nothing contained in this Article 17
will restrict the right of the Trustee or the Holders to take any action to
declare the Note Guarantee to be due and payable prior to the maturity of any
Securities or series of Securities pursuant to Section 5.01 or to pursue any
rights or remedies hereunder.
Section 17.03 Release of Note Guarantees. Upon the sale by the
Company or any Subsidiary of all or substantially all of the assets of any
Subsidiary Guarantor or all of the Capital Stock of any Subsidiary Guarantor,
such Guarantor (in the event of a sale or other disposition of all of the
Capital Stock of such Subsidiary Guarantor) or the corporation acquiring such
assets (in the event of a sale or other disposition of all or substantially all
of the assets of such Subsidiary Guarantor) shall be automatically and
unconditionally released and discharged of its Note Guarantee obligations.
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Section 17.04 Notice to Trustee. A Guarantor shall give prompt
written notice to the Trustee of any fact known to such Guarantor which would
prohibit the making of any payment to or by the Trustee in respect of the Note
Guarantee pursuant to the provisions of this Article 17.
Section 17.05 This Article not to Prevent Events of Default. The
failure to make a payment on account of principal of or interest on the
Securities by reason of any provision of this Article 17 will not be construed
as preventing the occurrence of an Event of Default.
ARTICLE 18
MEETINGS OF HOLDERS OF SECURITIES
Section 18.01 Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article 18 to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 18.02 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 18.01, to be held
at such time and at such place in The City of New York as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided for in Section 1.06, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount (or principal amount at
maturity, as applicable) of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 18.01, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in The City of New York for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in paragraph (a) of this Section 18.02.
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Section 18.03 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Person
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 18.04 Quorum; Action.
The Persons entitled to vote a majority in principal amount (or
principal amount at maturity, as applicable) of the Outstanding Securities of a
series shall constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that, if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture expressly provides may
be given by the Holders of not less than a specified percentage in principal
amount (or principal amount at maturity, as applicable) of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 18.02(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for lack of a quorum the Persons entitled to vote 25% in principal amount (or
principal amount at maturity, as applicable) of the Outstanding Securities at
the time shall constitute a quorum for the taking of any action set forth in the
notice of the original meeting.
Except as limited by the proviso to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
not less than a majority in principal amount (or principal amount at maturity,
as applicable) of the Outstanding Securities of that series; provided, however,
that, except as limited by the
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proviso to Section 9.02, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount (or
principal amount at maturity, as applicable) of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of not less than such specified percentage in principal amount (or principal
amount at maturity, as applicable) of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section 18.04 shall
be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 18.04, if
any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount (or
principal amount at maturity, as applicable) of all Outstanding Securities
affected thereby, or of the Holders of such series and one or more additional
series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount (or principal amount at maturity,
as applicable) of the Outstanding Securities of such series that vote
in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given or taken
under this Indenture.
Section 18.05 Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as its shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.04 and the
appointment of any proxy shall be proved in the manner specified in Section 1.04
or by having the signature of the person executing the proxy witnessed or
guaranteed by any
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trust company, bank or banker authorized by Section 1.04 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 18.02(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount (or
principal amount at maturity, as applicable) of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or principal
amount at maturity, as applicable) of Outstanding Securities of such series held
or represented by him (determined as specified in the definition of
"Outstanding" in Section 1.01); provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 18.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount (or
principal amount at maturity, as applicable) of the Outstanding Securities of
such series represented at the meeting; and the meeting may be held as so
adjourned without further notice.
Section 18.06 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint at least two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 18.02 and, if
applicable, Section 18.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy
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shall be delivered to the Company, and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
This Indenture 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 Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
THE ESTEE LAUDER COMPANIES INC., as Company
By: /s/ ROBERT J. BIGLER
-----------------------------------
Name: Robert J. Bigler
Title: Senior Vice President and
Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee
By: /s/ ORNULF THORESEN
-----------------------------------
Name: Ornulf Thoresen
Title: Vice President
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EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations, any estate the income of which is
subject to United States federal income taxation regardless of its source, or a
trust with respect to which a court within the United States is able to exercise
primary supervision over its administration and one or more United States
persons have the authority to control all of its substantial decisions ("United
States persons(s)"), (ii) are owned by United States person(s) that are (a)
foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise THE ESTEE LAUDER COMPANIES INC. or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if
A1-1
<PAGE>
any applicable statement herein is not correct on such date, and in the absence
of any such notification it may be assumed that this certification applies as of
such date.
This certificate excepts and does not relate to [U.S.$] of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: [To be dated no earlier than the 15th day prior to (i) the
Exchange Date or (ii) the relevant Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making
Certification]
-----------------------------------------
(Authorized Signatory)
Name:
Title:
A1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount of
the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations,
any estate the income of which is subject to United States Federal income
taxation regardless of its source or a trust with respect to which a court
within the United States is able to exercise primary supervision over its
administration and one or more United States persons have the authority to
control all of its substantial decisions ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise THE ESTEE LAUDER COMPANIES INC. or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
A2-1
<PAGE>
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: [To be dated no earlier than the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange Date, as applicable]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear System]
[CEDEL S.A.]
By
--------------------------------------
A2-2
EXHIBIT 5
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue, New York, New York 10153
(212) 310-8000
Fax: (212) 310-8007
November 5, 1999
The Estee Lauder Companies Inc.
767 Fifth Avenue
New York, New York 10153
Ladies and Gentlemen:
We have acted as counsel to The Estee Lauder Companies Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission of the Company's Registration
Statement on Form S-3, Registration No. 333-85947 (as amended, the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the registration of $400,000,000 aggregate initial offering
price of the debt securities of the Company (the "Debt Securities") for issuance
from time to time pursuant to Rule 415 under the Securities Act. The Debt
Securities may be offered in amounts, at prices and on terms to be determined by
market conditions at the time of the offering and will be set forth in a
prospectus supplement to the prospectus (the "Prospectus") included in the
Registration Statement.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Amended and Restated
Certificate of Incorporation of the Company, as amended to date, the By-laws of
the Company, as amended to date, the Registration Statement, the Prospectus, the
Indenture, dated as of November 5, 1999 (the "Indenture"), between the Company
and State Street Bank and Trust Company, N.A., as trustee (the "Trustee") and
such corporate records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of the Company, and have made such inquiries of such officers
and representatives, as we have deemed relevant and necessary as a basis for the
opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to these opinions that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the Debt Securities have been duly
authorized, and, when duly executed on behalf of the Company, authenticated by
the Trustee and delivered in accordance with the terms of the Indenture and as
contemplated by the Registration Statement, will constitute legal, valid and
binding obligations of the Company, enforceable against it in accordance with
their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity), and subject to the qualification that we
express no opinion as to
<PAGE>
the effect on the Debt Securities of laws which limit the rates of interest that
may legally be contracted for, charged or collected.
The opinions expressed herein are limited to the laws of the State of
New York, the corporate laws of the State of Delaware and the federal laws of
the United States, and we express no opinion as to the effect on the matters
covered by this letter of the laws of any other jurisdiction.
We hereby consent to the use of this letter as an exhibit to the
Registration Statement and to any and all references to our firm in the
Prospectus which is a part of the Registration Statement.
Very truly yours,
/s/ WEIL, GOTSHAL & MANGES LLP
EXHIBIT 12
THE ESTEE LAUDER COMPANIES INC.
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(IN MILLIONS, EXCEPT RATIO DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30 FISCAL YEARS
-------------------------- ----------------------------------------------------------------
1999 1998 1999 1998 1997 1996 1995
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
FIXED CHARGES
Interest expense $ 7.1 $ 7.6 $29.2 $17.8 $7.8 $12.2 $12.7
Rental expense 6.5 5.7 22.7 22.7 20.3 20.1 17.4
------------ ------------- ------------ ------------ ------------ ------------ ------------
Total fixed charges
before preferred
stock dividends 13.6 13.3 51.9 40.5 28.1 32.3 30.1
Preferred stock dividends 9.4 9.5 37.7 39.0 40.3 103.0 47.2
------------ ------------- ------------ ------------ ------------ ------------ ------------
TOTAL FIXED CHARGES 23.0 22.8 89.6 79.5 68.4 135.3 77.3
EARNINGS AVAILABLE FOR
FIXED CHARGES:
Earnings 131.1 115.5 440.2 402.8 362.9 313.0 233.0
Add fixed charges before
preferred stock
dividends 13.6 13.3 51.9 40.5 28.1 32.3 30.1
------------ ------------- ------------ ------------ ------------ ------------ ------------
Total earnings available
for fixed charges $ 144.7 $128.8 $492.1 $443.3 $391.0 $345.3 $263.1
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to
fixed charges (1) 6.29 5.65 5.49 5.58 5.71 2.55 3.40
==== ==== ==== ==== ==== ==== ====
(1) The ratio of earnings to fixed charges has been computed by dividing
earnings before income taxes and fixed charges before preferred stock
dividends by the fixed charges. This ratio includes the earnings and fixed
charges of The Estee Lauder Companies, Inc. and its consolidated
subsidiaries; fixed charges consist of interest and related charges on
debt, preferred stock dividends and the portion of rentals for real and
personal properties in an amount deemed to be representative of the
interest factor.
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our reports dated
August 10, 1999 included in the Form 10-K of The Estee Lauder Companies Inc. for
the year ended June 30, 1999 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
New York, New York
November 5, 1999
EXHIBIT 25
Securities and Exchange Commission
Washington, DC 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)________
STATE STREET BANK AND TRUST COMPANY, N.A.
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
UNITED STATES 13-3191724
(JURISDICTION OF INCORPORATION OR (IRS EMPLOYER IDENTIFICATION NO.)
ORGANIZATION IF NOT A U.S. NATIONAL BANK)
61 BROADWAY , NEW YORK, NEW YORK 10006
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
STATE STREET BANK AND TRUST COMPANY, N.A.
61 BROADWAY, 15TH FLOOR , NEW YORK, NY 10006
(212) 612- 3000
(NAME ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
THE ESTEE LAUDER COMPANIES INC.
(Exact name of obligor as specified in its charter)
DELAWARE 11-2408943
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
767 FIFTH AVENUE, NEW YORK, NY 10153
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of indenture securities )
846898 v.1
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
OFFICE OF THE COMPTROLLER OF THE CURRENCY, WASHINGTON , D.C.
FEDERAL DEPOSIT INSURANCE CORPORATION, WASHINGTON , D.C.
(b) Whether it is authorized to exercise corporate trust powers.
TRUSTEE IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee , describe each such
affiliation.
THE OBLIGOR IS NOT AN AFFILIATE OF THE TRUSTEE OR ITS PARENT, STATE
STREET BANK AND TRUST COMPANY. (See Notes below )
Item 3. through Item 15. NOT APPLICABLE
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility and attached thereto.
1. COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT FILED AS EXHIBIT A.
2. COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF INCORPORATION FILED
AS EXHIBIT B.
3. COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE
DOCUMENTS SPECIFIED IN PARAGRAPH (1) OR (2) ABOVE, FILED AS
EXHIBIT C.
4. COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE FILED AS EXHIBIT D.
5. THE CONSENT OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT FILED AS EXHIBIT E.
NOTE: EXHIBITS A-E INCORPORATED BY REFERENCE TO REGISTRATION STATEMENT
NO. 333-53759 FILED IN CONNECTION WITH COLUMBUS MCKINNON
CORPORATION.
6. COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE FILED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR
EXAMINING AUTHORITY FILED AS EXHIBIT F.
2
<PAGE>
NOTES
In answering any item in this statement of eligibility which relates
to matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, State Street Bank and Trust Company, N.A. , a corporation organized and
existing under the laws of the United States of America has caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City and State of New York , on the 5th
day of November 1999.
STATE STREET BANK AND TRUST COMPANY , N.A.
BY: /s/ ORNULF THORESEN
-----------------------------------------
Ornulf Thoresen
Vice President
3
<PAGE>
<TABLE>
<CAPTION>
Exhibit F Page 1
Legal Title of Bank: State Street Bank and Trust Company, N.A. Call Date: 09/30/1999 FFIEC 034
Address: 61 Broadway Page RC-1
City, State Zip: New York, NY 10006 Printed 11/02/1999 at 15:16
FDIC Certificate No.: 2 4 9 3 8
--- --- --- --- ---
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC -- BALANCE SHEET
-----------------------------
C100
----------------------------------
Dollar Amounts in Thousands RCON Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions:
a. Noninterest-bearing balances and currency and coin (1), (2)............................ 0081 18,085 1.a.
b. Interest-bearing balances (3).......................................................... 0071 0 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)............................. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)........................... 1773 75 2.b.
3. Federal funds sold (4) and securities purchased under agreements to resell................ 1350 0 3.
4. Loans and lease financing receivables:
---------------
a. Loans and leases, net of unearned income (from Schedule RC-C).......... RCON 2122 0 4.a.
b. LESS: Allowance for loan and lease losses.............................. RCON 3123 0 4.b.
c. LESS: Allocated transfer risk reserve.................................. RCON 3128 0 4.c.
---------------
d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a
minus 4.b and 4.c)..................................................................... 4.d.
2125 0
5. Trading assets............................................................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases).................................. 2145 40 6.
7. Other real estate owned (from Schedule RC-M).............................................. 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M).. 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding.............................. 2155 0 9.
10. Intangible assets (from Schedule RC-M).................................................... 2143 0 10.
11. Other assets (from Schedule RC-F)......................................................... 2160 579 11.
12 Total assets (sum of items 1 through 11).................................................. 2170 18,779 12.
----------------------------------
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b.
(3) Includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a, "Loans and
leases, net of unearned income," and in Schedule RC-C, part 1.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit F Page 2
Legal Title of Bank: State Street Bank and Trust Company, N.A. Call Date: 09/30/1999 FFIEC 034
Address: 61 Broadway Page RC-2
City, State Zip: New York, NY 10006 Printed 11/02/1999 at 15:16
FDIC Certificate No.: 2 4 9 3 8
--- --- --- --- ---
SCHEDULE RC--CONTINUED
----------------------------------
Dollar Amounts in Thousands RCON Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C><C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)................... 2200 0 13.a.
-------------------
(1) Noninterest-bearing (1).......................................... RCON 6631 0 13.a.(1)
-------------------
(2) Interest-bearing................................................. RCON 6636 0 13.a.(2)
-------------------
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs...............................
(1) Noninterest-bearing...................................................................
(2) Interest-bearing......................................................................
14. Federal funds purchased (2) and securities sold under agreements to repurchase................. 2800 0 14.
15. a. Demand notes issued to the U.S. Treasury.................................................... 2840 0 15.a.
b. Trading liabilities......................................................................... 3548 0 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases):
a. With a remaining maturity of one year or less............................................... 2332 0 16.a
b. With a remaining maturity of more than one year through three years......................... A547 0 16.b
c. With a remaining maturity of more than three years.......................................... A548 0 16.c.
17. Not applicable
18. Bank's liability on acceptances executed and outstanding....................................... 2920 0 18.
19. Subordinated notes and debentures (3).......................................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)......................................................... 2930 6,568 20.
21. Total liabilities (sum of items 13 through 20)................................................. 2948 6,568 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................................................. 3838 0 23.
24. Common stock................................................................................... 3230 500 24.
25. Surplus (exclude all surplus related to preferred stock)....................................... 3839 2,000 25.
26. a. Undivided profits and capital reserves...................................................... 3632 9,711 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...................... 8434 0 26.b.
c. Accumulated net gains (losses) on cash flow hedges.......................................... 4336 0 26.c.
27. Cumulative foreign currency translation adjustments............................................
28. Total equity capital (sum of items 23 through 27).............................................. 3210 12,211 28.
29. Total liabilities and equity capital (sum of items 21 and 28).................................. 3300 18,779 29.
-----------------------------
Memorandum
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITIONS.
1. Indicate in the box at the right the number of the statement below that best describes the Number
most comprehensive level of auditing work performed for the bank by independent external --------------------- --------
auditors as of any date during 1998....................................................... RCON 6724 N/A M.1.
--------------------- --------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority )
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
<PAGE>
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Report "term federal funds purchased" in Schedule RC, item 16, "Other
borrowed money."
(3) Includes limited-life preferred stock and related surplus.
</TABLE>
