AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 11, 1999
Registration Statement No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
Registration Statement
Under the
Securities Act Of 1933
THE EARTHGRAINS COMPANY
(Exact name of registrant as specified in its charter)
8400 Maryland Avenue
St. Louis, Missouri 63105
(314) 259-7000
(Address and telephone number of principal executive offices)
Joseph M. Noelker, Esq. Copies to:
Vice President, Secretary & Denis P. McCusker, Esq.
& General Counsel Bryan Cave LLP
The Earthgrains Company One Metropolitan Square, Suite 3600
8400 Maryland Avenue St. Louis, Missouri 63102
St. Louis, Missouri 63105
(Name and address of agent for service)
Approximate date of commencement of proposed sale to the public: From time
to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |X|
CALCULATION OF REGISTRATION FEE
- ----------------------------- ------------------------ -----------------------
Title of each class of Amount to be Amount of
securities to be registered Registered registration fee
- ----------------------------- ------------------------ -----------------------
Debt Securities $250,000,000* $69,500
- ----------------------------- ------------------------ -----------------------
* Or, if any Debt Securities are issued (i) with a principal amount
denominated in a foreign currency, such principal amount as shall result in
an aggregate initial offering price the equivalent of $250,000,000 at the
time of initial offering, or (ii) at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering
price of $250,000,000.
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 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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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 it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
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SUBJECT TO COMPLETION, DATED MARCH 11, 1999
[LOGO OMITTED]
$250,000,000
Debt Securities
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This Prospectus describes Debt Securities which The Earthgrains Company may
issue and sell at various times. More detailed information is under "The Debt
Securities."
o The Debt Securities may be debentures, notes or other senior unsecured
evidences of indebtedness.
o We may issue them in one or several series.
o The total principal amount of the Debt Securities to be issued under
this Prospectus will not exceed $250,000,000 (or the equivalent amount
in other currencies).
o We will determine the terms of each series of Debt Securities
(interest rates, maturity, redemption provisions and other terms) at
the time of sale, and we will specify the terms in a Prospectus
Supplement which will be delivered together with this Prospectus at
the time of the sale.
We may sell Debt Securities directly or through underwriters, dealers or
agents. We may also sell Debt Securities directly to investors. More information
about the way we will distribute the Debt Securities is under the heading "Plan
of Distribution." Information about the underwriters or agents who will
participate in any particular sale of Debt Securities will be in the Prospectus
Supplement relating to that series of Debt Securities.
See the information under the heading "Risk Factors" starting on page 3,
which describes certain factors you should consider before purchasing Debt
Securities.
Our principal office is at 8400 Maryland Avenue, St. Louis, Missouri 63105,
and our telephone number is (314) 259-7000.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or passed upon the
adequacy or accuracy of this Prospectus. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is [_________], 1999.
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We have not authorized anyone to give any information or to make any
representations concerning the offering of the Debt Securities except that which
is in this Prospectus or in the Prospectus Supplement which is delivered with
this Prospectus, or which is referred to under "Where You Can Find More
Information." If anyone gives or makes any other information or representation,
you should not rely on it. This Prospectus is not an offer to sell or a
solicitation of an offer to buy any securities other than the Debt Securities
which are referred to in the Prospectus Supplement. This Prospectus is not an
offer to sell or a solicitation of an offer to buy Debt Securities in any
circumstances in which the offer or solicitation is unlawful. You should not
interpret the delivery of this Prospectus, or any sale of Debt Securities, as an
indication that there has been no change in our affairs since the date of this
Prospectus. You should also be aware that information in this Prospectus may
change after this date.
TABLE OF CONTENTS
Table of Contents.................................2
Where You Can Find More Information...............2
Risk Factors......................................3
Information about Earthgrains.....................5
Use of Proceeds...................................6
The Debt Securities...............................6
Book-Entry Debt Securities.......................11
Ratio of Earnings to Fixed Charges...............12
Stock Split......................................12
Plan of Distribution.............................13
Legal Opinion....................................13
Experts..........................................13
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any of these documents at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
at the SEC's Internet website at http://www.sec.gov. The SEC allows us to
incorporate by reference the information we file with them, which means that we
can disclose important information to you by referring you to those documents.
The information incorporated by reference is considered to be part of this
Prospectus, and later information that we file with the SEC will automatically
update and supersede this information. We incorporate by reference the documents
listed below and any future filings made with the SEC under Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until we sell all of
the Debt Securities. This Prospectus is part of a registration statement we
filed with the SEC.
o Our Annual Report on Form 10-K for the year ended March 31, 1998.
o Our Quarterly Reports on Form 10-Q for the quarters ended June 23 and
September 15, 1998 and January 5, 1999.
You may receive a copy of any of these filings, at no cost, by writing or
calling the Investor Relations Department, The Earthgrains Company, 8400
Maryland Avenue, St. Louis, Missouri 63105, telephone 314-259-7000. You can also
find information about Earthgrains at our Internet website at
http://www.earthgrains.com.
We have filed with the SEC a Registration Statement to register the Debt
Securities under the Securities Act of 1933. This Prospectus omits certain
information contained in the Registration Statement, as permitted by SEC rules.
You may obtain copies of the Registration Statement, including exhibits, as
noted in the first paragraph above.
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RISK FACTORS
Forward-Looking Statements
Certain statements under this heading and under the heading "Information
about Earthgrains" in this prospectus, as well as certain information
incorporated by reference which is referred to under the heading "Where You Can
Find More Information," constitute "forward-looking statements" as defined in
the Private Securities Litigation Reform Act of 1995. All such forward-looking
information involves risks and uncertainties and may be affected by many
factors, some of which are beyond our control. These factors include:
o the costs of raw materials,
o our ability to realize projected savings from productivity and product
quality improvements,
o our ability to continue to participate in industry consolidation and
to successfully integrate acquired businesses,
o economic conditions in the U.S., Spain and France,
o fluctuations in currency exchange rates for the Euro, the Spanish
peseta and the French franc versus the U.S. dollar,
o the impact of the European currency conversion,
o legal proceedings to which we may become a party, and
o other factors described in this section and in our filings with the
SEC.
Competition
The packaged bakery products business is highly competitive. We face
intense price, product, and service competition for all of our products. We
compete on the basis of product quality, price, brand loyalty, effective
promotional activities, and our ability to identify and satisfy emerging
consumer preferences. Customer service, including frequency of deliveries and
maintenance of fully stocked shelves, also is an important competitive factor.
We compete with other national and regional wholesale bakeries, large
grocery chains that have vertically integrated or in-store bakeries, small
retail bakeries, and many producers of alternative foods. Some of our
competitors have significantly greater financial resources than we do.
Our ability to sell our products depends on our ability to attain store
shelf space in relation to competing brands and other food products. Our future
growth will depend on our ability to continue streamlining and reducing
operating costs, maintaining effective cost control programs, improving branded
product mix, taking advantage of industry consolidation opportunities,
developing successful new products, maintaining effective pricing and promotion
of our products, and providing superior customer service. If we are not
successful in our competitive efforts, it could adversely affect our financial
condition and our ability to make the required payments on the Debt Securities.
Raw Materials Prices and Availability
Our products require a large volume of various agricultural products,
including wheat for flour, soybean oil for shortening, and corn for high
fructose corn syrup. Agricultural commodities represented 22-25% of the cost of
our products sold for our fiscal year ended March 31, 1998. The commodity
markets have experienced, and may continue to experience, significant price
volatility. The price and supply of raw materials will be determined by, among
other factors, the level of crop production, weather conditions, export demand,
government regulations, and legislation affecting agriculture. Commodity prices
have declined significantly from record levels in 1996 and 1997. We cannot
predict what future commodity price levels will be. A significant increase in
commodity prices could significantly reduce our profitability if we are not able
to pass along the price increases through increased prices for our products, or
if our sales volumes decline because of increases in our prices.
We regularly enter into futures contracts or hedging contracts to protect
us against increases in prices for our raw materials. If market prices fall
after we enter into such contracts, we may pay more than market price for the
raw materials subject to those arrangements.
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Risks of Acquisitions
We have made several significant acquisitions since we became an
independent company in 1996, and we expect to continue making acquisitions in
the United States and Europe to take advantage of continued consolidation in our
industry. We believe that identifying appropriate acquisition opportunities and
taking advantage of them will be important to our continued success. Our future
success could be adversely affected if we are not able to make further
acquisitions due to competition for acquisitions or regulatory restrictions, or
if we are not successful in integrating the acquired businesses with our
existing businesses and in accomplishing our objectives of increasing
efficiency.
Holding Company Structure
The Earthgrains Company is organized as a holding company, and
substantially all of our operations are carried on through subsidiaries. As
such, creditors of our subsidiaries would have a claim against the assets of our
subsidiaries which would be prior to any claim we may assert (except to the
extent we may be recognized as creditors of our subsidiaries) and prior to the
claims of the holders of the Debt Securities. At January 5, 1999, the amount of
debt of our subsidiaries to which the Debt Securities would be effectively
subordinated was $3.5 million. Our principal source of income is the dividends
and distributions we receive from our subsidiaries. There are no limitations on
our ability or the ability of our subsidiaries to incur additional debt in the
future, except for certain restrictions on the ability of certain domestic
(U.S.) subsidiaries to incur long-term debt, as described under "The Debt
Securities-Certain Restrictions-Limitation on Funded Debt of Restricted
Subsidiaries."
Risks of International Operations
A significant portion of our business is based outside the United States,
primarily in Spain, France and Portugal. We anticipate that we may continue to
expand our international operations as suitable opportunities become available.
International operations present various risks which do not apply to our
domestic businesses, including currency exchange risks. Our foreign subsidiaries
are subject to government regulation and political risk in each market in which
they operate.
Certain of our operations may at times in the future be subject to
expropriation, confiscatory taxation or price controls, and political and
economic changes may damage operating and growth prospects by causing political
and regulatory uncertainty or economic difficulties. Governmental Regulation The
food industry is subject to regulation by federal, state and local government in
the U.S. and by various governmental bodies in other countries. These
regulations may affect our raw materials costs, our production cost and the
costs and methods involved in packaging and distributing our products. Antitrust
laws and regulations may also affect our ability to make acquisitions or the
manner in which we operate companies which we acquire.
Absence of Public Market for the Debt Securities
Prior to the issuance of the Debt Securities, there is no public trading
market for our debt securities. We do not intend to list the Debt Securities on
any national securities exchange. Although the underwriters for the various
series of Debt Securities may make a market in those Debt Securities, they will
not be obligated to do so. If a public market develops for the Debt Securities,
there is no assurance that it will continue to be maintained. If there is not a
public market for the Debt Securities, that may have an adverse effect on the
market price of your Debt Securities.
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INFORMATION ABOUT EARTHGRAINS
Earthgrains is an international manufacturer, distributor and consumer
marketer of fresh packaged bread and baked goods and refrigerated dough
products.
Our origins date back to 1925 when we began operations with one bakery. We
became an independent, publicly-owned company on March 26, 1996, when
Anheuser-Busch Companies, Inc. distributed the shares of Earthgrains to its
shareholders. Anheuser-Busch acquired Earthgrains (then named Campbell Taggart,
Inc.) in 1982.
o Operating Divisions. Our operations are divided into two principal
divisions: Bakery Products and Refrigerated Dough Products.
o Bakery Products.
o In the United States, we operate 43 bakeries and distribute our
products through approximately 3,300 company-owned delivery
routes and directly to food-service customers. Based on
independent market data, for the 52-week period ended January 17,
1999, we were the overall dollar market share leader of
supermarket sales for branded packaged fresh baked bread, buns
and rolls (excluding licensed brands) in the geographic markets
in which we operate, with a dollar market share of approximately
17.3%. These categories of products (excluding private label and
licensed brands) represented approximately 43% of the U.S. net
sales of the Bakery Products division for fiscal 1998. We
manufacture and distribute fresh-baked goods such as baked
breads, rolls, bagels, cookies, snack cakes and other sweet goods
in various states throughout the South, Southeast, Southwest and
Midwest United States and Northern and Central California. Our
primary brands for fresh baked goods are Earth Grains(R),
Colonial(TM), Rainbo(R), IronKids(R), Grant's Farm(R),
Heiner's(TM), Smith's(TM), Kern's(TM), Bost's(R) and San Luis
Sourdough(R). We also sell our products under the licensed brands
Sunbeam(R), Roman Meal(R) and Sun Maid(R). We sell our snack
cakes and oTHer sweet goods principally under the Break Cake(TM)
brand name. We also manufacture similar fresh-baked goods for
sale under the brand names of our customers. In addition, we
supply specialty breads and rolls, sandwich buns and other
products to major fast food and family restaurant chains.
o In Europe, Bimbo, S.A., our Spanish subsidiary, operates eight
bakeries in Spain and one bakery in Portugal. Based on
independent market data, we believe that Bimbo is the dollar
market share leader in supermarket sales of packaged branded
fresh-baked sliced bread, buns and rolls in Spain, and is second
in dollar market share for packaged branded fresh-baked sliced
bread in Portugal. These products are sold primarily under the
Bimbo(R), Semilla de Oro(R) and Silueta(R) brand names.
o Refrigerated Dough Products.
o In the United States, the Refrigerated Dough division
manufactures refrigerated and frozen dough products in two
plants, including biscuits, dinner rolls, sweet rolls, danishes,
cookie dough, cookies, crescent rolls, breadsticks, cinnamon
rolls, pizza crust and pie crusts. These products are sold under
different store brands throughout the United States. We are one
of only two manufacturers of canned refrigerated dough in the
United States. In addition, we believe that we are the only
significant manufacturer of store brand (private label) canned
refrigerated dough products in the United States, and we produce
store brand toaster pastries. In the United States, our
Refrigerated Dough Products division ranked second in dollar
market share of supermarket sales for packaged refrigerated dough
products in the geographic markets in which we operate, with a
dollar market share of approximately 14.4% for the 52-week period
ended January 17, 1999. Our refrigerated dough products and
refrigerated English muffins are also sold under the Merico brand
name as well as under the Sun Maid(R)licensed brand.
o In Europe, our Refrigerated Dough Division operates three
refrigerated dough plants in France and sells refrigerated dough
products primarily in France and Germany. It is the only
manufacturer of canned refrigerated dough in Europe. We also make
rolled dough, which is used to prepare foods such as quiches,
tarts and pies. In France, we sell canned dough and rolled dough
under various store brands as well as under our CroustiPate(R)
and HappyRoll(R) brands, and we sell these products throughout
Europe through contract packaging arrangements with major
international food companies.
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USE OF PROCEEDS
Unless we indicate otherwise in the Prospectus Supplement which accompanies
this Prospectus, we intend to use the proceeds of the Debt Securities for
general corporate purposes, including acquisitions, capital expenditures,
repayment of short-term borrowings and working capital. Before we use the
proceeds for these purposes, we may invest them in short-term investments.
THE DEBT SECURITIES
This section describes some of the general terms of the Debt Securities.
The Prospectus Supplement describes the particular terms of the Debt Securities
we are offering. The Prospectus Supplement also indicates the extent, if any, to
which these general provisions may not apply to the Debt Securities being
offered. If you would like more information on these provisions, you may review
the Indenture which is filed as an exhibit to the Registration Statement we have
filed with the SEC. See "Where You Can Find More Information."
We will issue the Debt Securities under an Indenture dated as of _________,
1999 between us and The Bank of New York, as trustee. We are summarizing certain
important provisions of the Debt Securities and the Indenture. This is not a
complete description of the important terms. You should refer to the specific
terms of the Indenture for a complete statement of the terms of the Indenture
and the Debt Securities. When we use capitalized terms which we do not define
here, those terms have the meanings given in the Indenture. When we use
references to Sections, we mean Sections in the Indenture.
General
The Debt Securities will be senior unsecured obligations of Earthgrains.
The Indenture does not limit the amount of Debt Securities that we may
issue under the Indenture, nor does it limit other debt that we may issue. We
may issue the Debt Securities at various times in different series, each of
which may have different terms. If we so indicate in the Prospectus Supplement
for any series, we may treat a subsequent offering of Debt Securities as a part
of the same series as that series.
The Prospectus Supplement relating to the particular series of Debt
Securities we are offering includes the following information concerning those
Debt Securities:
o The title of the Debt Securities.
o The total principal amount of the series of Debt Securities, and
whether we may treat a subsequent offering of Debt Securities as a
part of the same series as that series. o The date on which the
principal and interest will be paid, any rights we may have to extend
the maturity of the Debt Securities and any rights the holders may
have to require payment of the Debt Securities at any time.
o The interest rate on the Debt Securities. We may specify a fixed rate
or a variable rate, or a rate to be determined under procedures we
will describe in the Prospectus Supplement, and the interest rate may
be subject to adjustment.
o The dates on which we will pay interest on the Debt Securities and the
regular record dates for determining the holders who are entitled to
receive the interest payments.
o Where payments on the Debt Securities will be made, if it is other
than the office mentioned under "Payments on Debt Securities;
Transfers" below.
o If applicable, the prices at which we may redeem all or a part of the
Debt Securities and the time periods during which we may make the
redemptions. The redemptions may be made under a sinking fund or
otherwise.
o Any obligation we may have to redeem, purchase or repay any of the
Debt Securities under a sinking fund or otherwise or at the option of
the holder, and the prices, time periods and other terms which would
apply.
o Any additional Events of Default or covenants that will apply to the
Debt Securities.
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o The amounts we would be required to pay if the maturity of the Debt
Securities is accelerated, if it is less than the principal amount.
o If we will make payments on the Debt Securities in any currency other
than U.S. dollars, the currencies in which we will make the payments.
o If applicable, the terms under which we or a holder may elect that
payments on the Debt Securities be made in a currency other than U.S.
dollars.
o If amounts payable on the Debt Securities may be determined by a
currency index, information on how the payments will be determined.
o Any other special terms that may apply to the Debt Securities.
Payments on Debt Securities; Transfers
We will make payments on the Debt Securities to the persons in whose names
the securities are registered at the close of business on the record date for
the interest payments. As explained under "Book-Entry Debt Securities" below,
The Depositary Trust Company or its nominee will be the initial registered
holder unless the Prospectus Supplement provides otherwise.
Unless we indicate otherwise in the Prospectus Supplement, we will make
payments on the Debt Securities at the Trustee's office, which is now located at
101 Barclay Street, New York, New York 10286. Transfers of Debt Securities can
be made at the same offices. (Sections 202, 301, 305, 307 and 1002)
Form and Denominations
Unless we otherwise indicate in the Prospectus Supplement:
o We will issue the Debt Securities of each series only in registered
form without coupons in denominations of $1,000 and any integral
multiple thereof.
o We will not charge any fee to register any transfer or exchange of the
Debt Securities, except for taxes or other governmental charges, if
any. (Section 305)
Certain Restrictions
Creation of Secured Indebtedness
Under the Indenture, we and our Restricted Subsidiaries (defined below) may
not create, assume, guarantee or permit to exist any indebtedness for borrowed
money which is secured by a pledge of, or a mortgage or lien on, any Principal
Plants (defined below) or on any of our Restricted Subsidiaries' capital stock,
unless we also provide equal and ratable security for the Debt Securities. A
"Restricted Subsidiary" is a subsidiary which owns or operates a Principal
Plant, unless it is incorporated or has its principal place of business outside
the United States, and any other subsidiary which we elect to treat as a
Restricted Subsidiary. A "Principal Plant" is any of our production facilities,
but does not include a facility which our Board of Directors determines shall
not be treated as a Principal Plant, as long as all such plants which are
determined not to be Principal Plants, taken together, are not of material
importance to the total business conducted by Earthgrains and our Subsidiaries.
Our Board of Directors may change any such designation of a facility as a
Principal Plant or as excluded from the category of Principal Plant at varying
times, subject to the limit described in the preceding sentence.
The restriction described in the preceding paragraph does not apply to:
o purchase money liens, including liens for indebtedness incurred in
connection with the acquisition or construction of a Principal Plant
(so long as we incur the indebtedness within 180 days after the
acquisition or completion of construction of such Principal Plant),
o liens existing on property when we acquire it,
o liens on property of a Restricted Subsidiary when it becomes a
Restricted Subsidiary,
o liens to secure the cost of development or construction of property,
or improvements of property, and which are released or satisfied
within 180 days after completion of the development or construction,
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o liens in connection with the acquisition or construction of Principal
Plants or additions thereto financed by tax-exempt securities,
o liens securing indebtedness to Earthgrains or a wholly-owned
Restricted Subsidiary by a Restricted Subsidiary,
o liens existing at the date of the Indenture,
o liens on property of a corporation existing at the time of such
corporation is merged with or consolidated with Earthgrains or a
Restricted Subsidiary, or at the time Earthgrains or a Restricted
Subsidiary acquires all or substantially all of the properties of such
corporation,
o liens in favor of the United States government or any U.S. state
government incurred in connection with financing the acquisition or
construction of properties pursuant to a statute or a contract with
any such governmental body,
o extensions, renewals or replacements of the liens referred to above.
(Section 1006(a))
There is an additional exception described below under "Basket Amount."
Sale-Leaseback Financings
Under the Indenture, neither we nor any Restricted Subsidiary may enter
into any sale and leaseback transaction involving a Principal Plant, except a
sale by us to a Restricted Subsidiary or a sale by a Restricted Subsidiary to us
or another Restricted Subsidiary or a lease not exceeding three years, by the
end of which we intend to discontinue use of the property, unless:
o the net proceeds of the sale are at least equal to the fair market
value of the property, and
o within 180 days of the transfer we repay Funded Debt (defined below)
and/or make expenditures for the expansion, construction or
acquisition of a Principal Plant at least equal to the net proceeds of
the sale. (Section 1007)
There is an additional exception described below under "Basket Amount."
Basket Amount
In addition to the exceptions described above under "Creation of Secured
Indebtedness" and "Sale-Leaseback Financings" the Indenture allows additional
secured indebtedness and additional sale-leaseback financings as long as the
total of the additional indebtedness and the fair market value of the property
transferred in the additional sale-leaseback financings does not exceed 5% of
our consolidated total assets. (Sections 1006(d) and 1007(c))
Limitation on Funded Debt of Restricted Subsidiaries
We may not permit any Restricted Subsidiary to create, assume or permit to
exist any Funded Debt other than:
o Funded Debt secured by a mortgage, pledge or lien which is permitted
under the provisions described above under "Creation of Secured
Indebtedness,"
o Funded Debt owed to us or any wholly-owned Restricted Subsidiary,
o Funded Debt of a corporation existing at the time it becomes a
Restricted Subsidiary,
o Funded Debt created in connection with, or with a view to, compliance
with the requirements of any program, law, statute or regulation of
any federal, state or local governmental authority and applicable to
the Restricted Subsidiary and providing financial or tax benefits to
the Restricted Subsidiary which are not available directly to us, or
not available on as favorable terms,
o guarantees existing at the date of the Indenture, and
o other Funded Debt which, when added to outstanding secured debt and
sale-leaseback financings permitted under the provision described
under "Basket Amount" above, does not exceed 10% of our consolidated
total assets. (Section 1008)
"Funded Debt" means indebtedness for money borrowed and indebtedness
represented by notes, debentures and other similar evidences of indebtedness,
including purchase money indebtedness, having a maturity of more than twelve
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months from the date of determination or having a maturity of less than twelve
months but by its terms being renewable or extendible beyond twelve months at
our option, subject only to conditions which we are then capable of fulfilling,
and guarantees of similar indebtedness of others, except that Funded Debt does
not include:
o Any indebtedness of a person held in treasury by that person; or
o Any indebtedness with respect to which sufficient money has been
deposited or set aside in trust to pay the indebtedness; or
o Certain contingent obligations in respect of indebtedness of other
persons, such as keep-well, maintenance of working capital or earnings
or similar agreements.
Merger
We may not consolidate with or merge into any other corporation or transfer
or lease our properties and assets substantially as an entirety unless certain
conditions are met, including the assumption of the securities by any successor
corporation. (Sections 801 and 1006)
Modification or Amendment of the Indenture
We may modify and amend the Indenture if the holders of a majority in
principal amount of the outstanding Debt Securities affected by the modification
or amendment give their consent, except that no supplemental indenture may
reduce the principal amount of or interest or premium payable on any Debt
Security, change the maturity date or dates of principal, the interest payment
dates or other terms of payment, or reduce the percentage of holders necessary
to approve a modification or amendment of the Indenture, without the consent of
each holder of outstanding Debt Securities affected by the supplemental
indenture. (Section 902)
We and the Trustee may amend the Indenture without the holders' consent for
certain specified purposes, including any change which is not otherwise
inconsistent with the Indenture and which does not materially adversely affect
the holders' interests. (Section 901)
Defeasance
The Indenture includes provisions allowing defeasance of the Debt
Securities of any series. In order to defease Debt Securities, we would deposit
with the Trustee or another trustee money or U.S. Government Obligations
sufficient to make all payments on those Debt Securities. If we make a
defeasance deposit with respect to your Debt Securities, we may elect either:
o to be discharged from all our obligations on your Debt Securities,
except for our obligations to register transfers and exchanges, to
replace temporary or mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt
Securities and to hold moneys for payment in trust; or
o to be released from the restrictions described above relating to
liens, sale-leaseback transactions, Funded Debt of Restricted
Subsidiaries and certain other restrictions and obligations of the
Company contained in the Indenture (specifically not including,
however, the obligation of the Company to pay the principal and
interest on any Debt Securities).
To establish the trust, we must deliver to the Trustee an opinion of our
counsel that the holders of the Debt Securities will not recognize gain or loss
for Federal income tax purposes as a result of the defeasance and will be
subject to Federal income tax on the same amount, in the same manner and at the
same times as would have been the case if the defeasance had not occurred.
(Article Thirteen)
Events of Default, Notice and Waiver
An Event of Default in respect of any series of Debt Securities means:
o default for 30 days in any payment of interest;
o default in payment ofprincipal or premium when due;
o default in payment of any sinking fund amount in accordance with the
terms of such Debt Security;
9
<PAGE>
o default in performance of or breach of any covenant in the Indenture
which applies to the series which continues for 60 days after notice
to Earthgrains by the Trustee or by the holders of 25% in principal
amount of the outstanding Debt Securities of the affected series;
o default in our payment of indebtedness which we have incurred or
guaranteed exceeding $30 million or acceleration of the maturity such
indebtedness exceeding $30 million;
o certain events of bankruptcy, insolvency and reorganization; and
o any other events which are designated as Events of Default in respect
of that series. (Section 501)
If an Event of Default occurs and is continuing in respect of one or more
series, either the Trustee or the holders of 25% in principal amount of the
outstanding Debt Securities of those series may declare the principal of and
accrued interest, if any, on all securities of those series to be due and
payable. If other specified Events of Default occur and are continuing, either
the Trustee or the holders of 25% in principal amount of the outstanding Debt
Securities of all series may declare the principal of and accrued interest, if
any, on all the outstanding Debt Securities to be due and payable. (Section 501)
Within 60 days after a default in respect of any series of Debt Securities,
the Trustee must give to the holders of the Debt Securities of that series
notice of all uncured and unwaived defaults by us known to it. However, except
in the case of default in payment, the Trustee may withhold the notice if it in
good faith determines that it is in the interest of the holders. The term
"default" means, for this purpose, the occurrence of any event that, upon notice
or lapse of time, would be an Event of Default. (Section 602)
Before the Trustee is required to exercise rights under the Indenture at
the request of holders, it is entitled to be indemnified by the holders, subject
to its duty, during an Event of Default, to act with the required standard of
care. (Sections 6.1 through 6.13)
Subject to the Trustee's duty during default to act with the required
standard of care, the Trustee has the right to be indemnified by the holders of
Debt Securities issued under the Indenture before proceeding to exercise any
right or power under the Indenture at the request of the holders. (Section
603(e))
The holders of a majority in principal amount of the outstanding securities
of any series (voting as a single class) may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee in respect of the
securities of that series. (Section 512) The holders of a majority in principal
amount of the outstanding securities of all series affected by a default (voting
as a single class) may, on behalf of the holders of all that securities, waive
the default except a default in payment of the principal of or premium, if any,
or interest on any security. (Section 513) The holders of a majority in
principal amount of outstanding securities of all series entitled to the
benefits thereof (voting as a single class) may waive compliance with certain
covenants under the Indenture. (Section 1011)
We will furnish to the Trustee, annually, a statement as to the fulfillment
by us of our obligations under the Indenture. (Section 1004)
Regarding the Trustee
The Bank of New York is the Trustee under the Indenture. The Bank of New
York also is a party to our credit agreement, under which it has committed to
lend us up to $30 million, and it may provide other banking services to us.
10
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BOOK-ENTRY DEBT SECURITIES
The Prospectus Supplement will indicate whether we are issuing the related
Debt Securities as book-entry securities. Book-entry securities of a series will
be issued in the form of one or more global notes that will be deposited with
The Depository Trust Company, New York, New York, and will evidence all of the
Debt Securities of that series. This means that we will not issue certificates
to each holder. We will issue one or more global securities to DTC, which will
keep a computerized record of its participants (for example, your broker) whose
clients have purchased the Debt Securities. The participant will then keep a
record of its clients who own the Debt Securities. Unless it is exchanged in
whole or in part for a security evidenced by individual certificates, a global
security may not be transferred, except that DTC, its nominees and their
successors may transfer a global security as a whole to one another. Beneficial
interests in global securities will be shown on, and transfers of beneficial
interests in global notes will be made only through, records maintained by DTC
and its participants. Each person owning a beneficial interest in a global
security must rely on the procedures of DTC and, if the person is not a
participant, on the procedures of the participant through which the person owns
its interest to exercise any rights of a holder of Debt Securities under the
Indenture.
The laws of some jurisdictions require that certain purchasers of
securities such as Debt Securities take physical delivery of the securities in
definitive form. These limits and laws may impair your ability to acquire or
transfer beneficial interests in the global security.
We will make payments on each series of book-entry Debt Securities to DTC
or its nominee, as the sole registered owner and holder of the global security.
Neither Earthgrains nor the Trustee nor any of their agents will be responsible
or liable for any aspect of DTC's records relating to or payments made on
account of beneficial ownership interests in a global security or for
maintaining, supervising or reviewing any of DTC's records relating to the
beneficial ownership interests.
DTC has informed us that, when it receives any payment on a global
security, it will immediately, on its book-entry registration and transfer
system, credit the accounts of participants with payments in amounts
proportionate to their beneficial interests in the global security as shown on
DTC's records. Payments by participants to you, as an owner of a beneficial
interest in the global security, will be governed by standing instructions and
customary practices (as is now the case with securities held for customer
accounts registered in "street name") and will be the sole responsibility of the
participants.
A global security representing a series will be exchanged for certificated
Debt Securities of that series if (a) DTC notifies us that it is unwilling or
unable to continue as Depositary or if DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934 and we don't appoint a
successor within 90 days or (b) we decide that the global security shall be
exchangeable. If that occurs, we will issue Debt Securities of that series in
certificated form in exchange for the global security. An owner of a beneficial
interest in the global security then will be entitled to physical delivery of a
certificate for Debt Securities of the series equal in principal amount to that
beneficial interest and to have those Debt Securities registered in its name. We
would issue the certificates for the Debt Securities in denominations of $1,000
or any larger amount that is an integral multiple thereof, and we would issue
them in registered form only, without coupons.
DTC has advised us that it is a limited-purpose trust company organized
under the New York Banking Law, a "banking organization" within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered under the 1934 Act. DTC was created to hold the
securities of its participants and to facilitate the clearance and settlement of
securities transactions among its participants through electronic book-entry
changes in accounts of the participants, thereby eliminating the need for
physical movement of securities certificates. DTC's participants include
securities brokers and dealers, banks, trust companies, clearing corporations,
and certain other organizations, some of whom (and/or their representatives) own
DTC. Access to DTC's book-entry system is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly. The
rules applicable to DTC and its participants are on file with the SEC. No fees
or costs of DTC will be charged to you.
11
<PAGE>
Ratio of Earnings to Fixed Charges
The following table shows the ratio of our earnings to fixed charges for
the periods indicated. We do not show information for periods prior to the year
ended March 26, 1966 because information reflecting what our expenses would have
been as an independent company are not available. Prior to the spin-off from
Anheuser-Busch in 1996, Anheuser-Busch provided funds to Earthgrains by
intercompany advances, without interest charges.
We have computed these ratios by dividing earnings available for fixed
charges (income before income taxes plus fixed charges) by fixed charges
(interest expense plus that portion of rental expenses deemed to represent
interest).
For the Forty Weeks Ended For the Years Ended
March 26,
January 5, December 30, March 31, March 25, 1996
1999 1997 1998 1997 (pro forma)
---------- ------------ ---------- --------- ----------
Ratio of earnings 4.3x (1) 7.4x 5.9x 3.1x(1) (1)(2)
to fixed charges
- ------------------
(1) These calculations reflect certain non-recurring items. The forty weeks
ended January 5, 1999 include an $8.4 million pre-tax provision for
restructuring; fiscal 1997 includes a $12.7 million pre-tax provision for
restructuring; fiscal 1996 includes a $3.0 million pre-tax provision for
restructuring, a $7.8 million pre-tax charge for the Spanish work force
reduction program and a $7.6 million pre-tax charge for a legal settlement
and other non-recurring costs. If these non-recurring items were excluded,
the ratios would be 4.7x for the forty weeks ended January 5, 1999 and 4.4x
for the year ended March 25, 1997, and the deficiency (pro forma) for the
year ended March 26, 1996 would be approximately $21.6 million.
(2) As a result of the historical loss incurred and incremental pro forma
adjustments to represent Earthgrains as an independent company for this
period, earnings were less than fixed charges for the year ended March 26,
1996. The coverage deficiency was approximately $40.0 million.
1998 STOCK SPLIT
A two-for-one split of our common stock was effective on July 20, 1998. The
following table shows certain information which has been restated to show the
effect of the stock split:
(in millions, except For the Years Ended
per share information) March 31, 1998 March 25, 1997
--------------- --------------
Earnings per share
Basic
Earnings before cumulative effect
of change in accounting principle....... $ 0.93 $ 0.40
Cumulative effect of accounting change ..... 0.04 -
Net earnings per share ..................... $ 0.89 $0.40
Weighted average shares outstanding ........ 40.7 40.6
Diluted
Earnings before cumulative effect of
change in accounting principle........... $ 0.89 $ 0.39
Cumulative effect of accounting change...... .04 -
Net earnings per share...................... $ 0.85 $ 0.39
Weighted average shares outstanding ....... 42.5 41.3
12
<PAGE>
PLAN OF DISTRIBUTION
We may sell Debt Securities to or through one or more underwriters or
dealers, and also may sell Debt Securities directly to other purchasers or
through agents. These firms may also act as our agents in the sale of Debt
Securities. Only underwriters named in the Prospectus Supplement will be
considered as underwriters of the Debt Securities offered by the Prospectus
Supplement.
We may distribute Debt Securities at different times in one or more
transactions. We may sell Debt Securities at fixed prices, which may change, at
market prices prevailing at the time of sale, at prices related to the
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from us or from purchasers of Debt Securities in the form of
discounts, concessions or commissions. Underwriters, dealers and agents that
participate in the distribution of Debt Securities may be deemed to be
underwriters. Discounts or commissions they receive and any profit on their
resale of Debt Securities may be considered underwriting discounts and
commissions under the Securities Act of 1933. We will identify any underwriter
or agent, and we will describe any compensation, in the Prospectus Supplement.
We may agree to indemnify underwriters, dealers and agents who participate
in the distribution of Debt Securities against certain liabilities, including
liabilities under the 1933 Act.
We may authorize dealers or other persons who act as our agents to solicit
offers by certain institutions to purchase Debt Securities from us under
contracts which provide for payment and delivery on a future date. We may enter
into these contracts with commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
others. If we enter into these agreements concerning any series of Debt
Securities, we will indicate that in the Prospectus Supplement.
In connection with an offering of Debt Securities, underwriters may engage
in transactions that stabilize, maintain or otherwise affect the price of the
Debt Securities. Specifically, underwriters may over-allot in connection with
the offering, creating a syndicate short position in the Debt Securities for
their own account. In addition, underwriters may bid for, and purchase, Debt
Securities in the open market to cover short positions or to stabilize the price
of the Debt Securities. Finally, underwriters may reclaim selling concessions
allowed for distributing the Debt Securities in the offering if the underwriters
repurchase previously distributed Debt Securities in transactions to cover short
positions, in stabilization transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the Debt Securities above
independent market levels. Underwriters are not required to engage in any of
these activities and may end any of these activities at any time.
Each series of Debt Securities offered will be a new issue of securities
and will have no established trading market. The Debt Securities may or may not
be listed on a national securities exchange. No assurance can be given as to the
liquidity of or the existence of trading markets for any Debt Securities
offered.
LEGAL OPINION
Bryan Cave LLP, St. Louis, Missouri, as our counsel, has issued an opinion
as to the legality of the Debt Securities.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K of the Company for the year ended
March 31, 1998 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
13
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth estimated expenses in connection with the
issuance and distribution of the securities being registered, assuming one
issuance of securities:
Registration Fee ................................. $ 69,500
Printing and Engraving ........................... $ 30,000*
Trustee's Charges ............................... $ 4,000
Accounting Fees .................................. $ 30,000*
Rating Agency Fees................................ $ 250,000*
Legal Fees ....................................... $ 35,000*
Miscellaneous .................................... $ 6,500
----------
Total ......................... $ 425,000*
----------
* Estimated
Item 15. Indemnification of Directors and Officers.
The Delaware General Corporation Law permits the indemnification by a
Delaware corporation of its directors, officers, employees and other agents
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than derivative
actions which are by or in the right of the corporation) if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with defense or settlement of such an action and requires
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation.
The Restated Certificate of Incorporation of Earthgrains provides that each
person who was or is made a party to, or is involved in, any action, suit or
proceeding by reason of the fact that he or she is or was a director or officer
of Earthgrains (or was serving at the request of Earthgrains as a director,
officer, employee or agent for another entity) while serving in such capacity
will be indemnified and held harmless by Earthgrains to the full extent
authorized or permitted by Delaware law. The Restated Certificate of
Incorporation also provides that no director will be personally liable to
Earthgrains or its stockholders for monetary damages for any breach of fiduciary
duty by such a director as a director to the full extent authorized or permitted
by Delaware law. A director, however, will be liable to the extent provided by
applicable law for:
1. any breach of the director's duty of loyalty to Earthgrains or its
stockholders;
2. acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
3. violations of Section 174 of the Delaware General Corporation Law; or
4. any transaction from which the director derived an improper personal
benefit.
II-1
<PAGE>
Item 16. Exhibits.
1. - Form of Underwriting Agreement
4. - Form of Indenture between The Earthgrains Company and The Bank of
New York, as Trustee.
5. - Opinion and consent of Bryan Cave LLP, counsel to the Registrants.
12. - Calculation of Ratio of Earnings to Fixed Charges
23. - Consent of PricewaterhouseCoopers LLP.
24. - Powers of Attorney executed by certain of the officers and
directors of the Registrants (included in signature pages).
25. - Form T-1, Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of The Bank of New York, as Trustee.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made of
the securities registered hereby, 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 prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% 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 the undertakings set forth in subparagraphs
(i) and (ii) above 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 furnished to the Securities and Exchange Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
2. That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
4. 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 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
II-2
<PAGE>
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of St. Louis, State of Missouri, on March 5, 1999.
THE EARTHGRAINS COMPANY
By: /s/ MARK H. KRIEGER
------------------------------------
Mark H. Krieger
Vice President and Chief
Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Mark H. Krieger, Joseph M. Noelker and Michael A Salamone, and each of them, his
or her true and lawful attorneys-in-fact and agents, with full power of
substitution, to sign any amendments (including post-effective amendments) and
supplements to this Registration Statement, and to file such amendments and any
related documents with the Securities and Exchange Commission, and ratifies and
confirms the actions that any such attorney-in-fact and agents, or their
substitutes, may lawfully do or cause to be done under this power of attorney.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated:
Chairman of the Board, Chief
Executive Officer and Director
(Principal Executive Officer)
/s/ BARRY H. BERACHA Officer)
- ------------------------------- March 5, 1999
(Barry H. Beracha)
Vice President and Chief Financial
Financial Officer (Principal
/s/ MARK H. KRIEGER Financial Officer)
- ------------------------------- March 5, 1999
(Mark H. Krieger)
Vice President and Controller
(Principal Accounting
/s/ VIRGIL H. REHKEMPER Officer)
- ------------------------------- March 5, 1999
(Virgil H. Rehkemper)
/s/ J. JOE ADORJAN Director
- -------------------------------
(J. Joe Adorjan) March 5, 1999
/s/ PETER F. BENOIST Director
- -------------------------------
(Peter F. Benoist) March 5, 1999
/s/ MAXINE K. CLARK Director
- -------------------------------
(Maxine K. Clark) March 5, 1999
II-4
<PAGE>
/s/ JAIME IGLESIAS Director
- -------------------------------
(Jaime Iglesias) March 5, 1999
/s/ JERRY E. RITTER Director
- -------------------------------
(Jerry E. Ritter) March 5, 1999
/s/ WILLIAM E. STEVENS Director
- -------------------------------
(William E. Stevens) March 5, 1999
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
- -------- ----------------------
1. Form of Underwriting Agreement.
4. Form of Indenture between The Earthgrains Company and the Bank of New
York, as Trustee.
5. Opinion and consent of Bryan Cave LLP, counsel to the Registrants.
12. Calculation of Ratio of Earnings to Fixed Charges
23. Consent of PricewaterhouseCoopers LLP.
24. Powers of Attorney executed by certain of the officers and directors of
the Registrants (included in signature pages).
25. Form T-1, Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee.
II-6
Exhibit 1
THE EARTHGRAINS COMPANY
Senior Debt Securities
Underwriting Agreement
April __, 1999
J.P. MORGAN SECURITIES INC.
as Representative of the several
Underwriters named in Schedule
II hereto
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
The Earthgrains Company, a Delaware corporation (the "Company"),
proposes to issue and 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 senior debt securities
identified in Schedule I hereto (the "Securities"), to be issued under the
indenture specified in Schedule I hereto (the "Indenture") between the Company
and the Trustee identified in such Schedule (the "Trustee"). 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.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain senior debt securities (the "Shelf Securities") to be issued from time
to time by the Company. The Company has also filed with, or proposes to file
with, the Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Securities. The registration statement
as amended to the date of this Agreement is hereinafter referred to as the
<PAGE>
"Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 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 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supple ment"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representa tions and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives, no later than noon the Business Day (as defined below) prior to
the Closing Date (as defined below), at the place set forth in Schedule I hereto
(or at such other time and place on the same or such other date, not later than
the fifth Business Day thereafter, as you and the Company may agree in writing).
As used herein, the term "Business Day" means any day other than a day on which
2
<PAGE>
banks are permitted or required to be closed in New York City. The time and date
of such payment and delivery with respect to the Securities are referred to
herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes (the "Global
Notes" ) representing the Securities. The Global Notes will be made available
for inspection by the Representatives at the office of the Bank of New York, the
trustee (the "Trustee"), not later than 1:00 P.M., New York City time, on the
Business Day prior to the Closing Date.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Trust Indenture Act"), and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
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the Exchange Act, as applicable, and none of such documents contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Exchange Act, as applicable, and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(c) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein;
and the pro forma financial information, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as applicable
and is based upon good faith estimates and assumptions believed by the
Company to be reasonable;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been (i) any material change in the capital stock of the Company or any
of its subsidiaries, except for the issuance by the Company of capital
stock on exercise of previously-issued stock options, (ii) any material
change in the long term debt of the Company, except the incurrence by
the Company or any of its subsidiaries of additional long term debt in
connection with acquisition transaction sin the ordinary course of
business, or (iii) any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business prospects, financial position, or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus; and except as set forth
or contemplated in the Prospectus neither the Company nor any of its
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subsidiaries has entered into any transaction or agreement material to
the Company and its subsidiaries taken as a whole, except for
acquisition transactions in the ordinary course of business;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries taken as
a whole;
(f) each of the Company's "significant subsidiaries" (as
defined in Regulation S-X promulgated by the Commission) has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorpora tion, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued,
are fully-paid and non-assessable and (except in the case of foreign
subsidiaries, for directors' qualifying shares are owned by the
Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company;
(h) the Securities have been duly authorized, and, when
executed, authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant to
this Agreement, will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture enforceable
against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and the effect of general principles of
equity; the Indenture has been duly authorized and upon effectiveness
of the Registration Statement will have been duly qualified under the
Trust Indenture Act and, when executed and delivered by the Company
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<PAGE>
and the Trustee, the Indenture will constitute a valid and binding
agreement enforceable against the Company in accordance with its
terms, subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, and (ii) the effect of
general principles of equity;
(i) the issue and sale of the Securities and the performance
by the Company of all its obligations under the Securities, the
Indenture and this Agreement and the consummation of the transactions
herein and therein contem plated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, nor
will any such action result in any violation of the provisions of the
Certificate of Incorpora tion or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties, which
violations would have a material adverse effect on the Company and the
subsidiar ies taken as a whole; and no consent, approval,
authorization, order, license, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture, except
such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under
state securities or Blue Sky Laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries
or any of their respective properties or to which the Company or any
of its subsidiaries is or may be a party or to which any property of
the Company or any of its subsidiaries is or may be the subject that
are required to be described in the Prospectus or the Registration
Statement and are not so described; and there are no statutes,
regulations, contracts or other documents that are required to be
filed or incorporated by reference as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Prospectus which are not filed, or described or incorporated by
reference as required;
(k) the Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
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company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(l) the Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations
of the Company or any of its subsidiaries will be affected by the Year
2000 Problem; as a result of such review, the Company has no reason to
believe, and does not believe, that the Year 2000 Problem will have a
material adverse effect on the Company and its subsidiaries taken as a
whole. Except as disclosed in the Prospectus, the Company and its
subsidiaries (i) will not incur significant operating expenses or costs
to ensure that their operating and information systems will be year
2000 compliant and (ii) reasonably believe, after due inquiry, that the
suppliers, vendors, customers or other material third parties used or
served by the Company and such subsidiaries are or will be year 2000
compliant in a timely manner, except to the extent that a failure to
become year 2000 compliant by any supplier, vendor, customer or
material third party would not have a material adverse effect on the
Company and its subsidiaries taken as a whole. As used herein, the
"Year 2000 Problem" means any significant risk that computer hardware
or software used in the receipt, transmission, processing,
manipulation, storage, retrieval, transmission or other utilization of
data or in the operation of mechanical or electrical systems of any
kind will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of
dates or time periods occurring prior to January 1, 2000.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to file the Prospectus pursuant to Rule 424 under the
Securities Act not later than the Commission's close of business on the
second Business Day following the date of determination of the offering
price of the Securities or, if applicable, such earlier time as may be
required by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to furnish each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as you may reasonably
request;
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<PAGE>
(c) from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period, to advise you promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement shall
have become effective, (ii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv) of the receipt
by the Company of any notification with respect to any suspension of
the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order or notification and, if issued, to obtain as soon
as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law
to be delivered in connection with sales by an Underwriter or dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the Company, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Securities may have been sold by you on behalf of the Underwriters and
to any other dealers upon request, such amendments or supplements to
the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circum stances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to continue such qualification in effect
so long as reasonably required for distribution of the Securities;
8
<PAGE>
provided that the Company shall not be required in any event to file a
general consent to service of process in any jurisdiction or to qualify
as a foreign corporation in any state or jurisdiction or to qualify as
a foreign corporation in any state or jurisdiction;
(g) the Company will make generally available to its
securityholders as soon as practicable, but not later than 45 days (or
90 days, in the case of a period that is also the Company's fiscal
year) after the close of the period covered thereby, an earnings
statement of the Company and its subsidiaries (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement;
(h) so long as the Securities are outstanding, the Company
will furnish to the Representative copies of all annual reports,
quarterly reports and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such similar forms as may be designated by
the Commission, and such other documents, reports and information as
shall be furnished by the Company to its stockholders or
securityholders generally, provided, however, that the Company shall
not be required to provide the Representative with any such reports or
similar forms that have been filed with the Commission by electronic
transmission pursuant to EDGAR;
(i) during the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell, or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the
Securities without the prior written consent of the Underwriters;
(j) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters
may designate in accordance with the provisions of Section 5(f)
(including fees of counsel for the Underwriters and their
disbursements), (iv) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the
Indenture, the Preliminary and Supplemental Blue Sky Memoranda and the
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<PAGE>
furnishing to Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as
herein provided, and (v) payable to rating agencies in connection with
the rating of the Securities.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company
contained herein are true and correct on the date hereof and as of the
Closing Date as if made on and as of the date hereof and of the Closing
Date and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been (i) any material change in
the capital stock of the Company or any of its subsidiaries, except
for the issuance by the Company of capital stock on exercise of
previously-issued stock options, (ii) any material change in the long
term debt of the Company, except the incurrence by the Company or any
of its subsidiaries of additional long term debt in connection with
acquisition transactions in the ordinary course of business, or (iii)
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business
prospects, financial position, or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in the judgment of
the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus;
10
<PAGE>
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company, with
specific knowledge about the Company's financial matters, satisfactory
to you to the effect set forth in subsections (a) through (c) (with
respect to the respective representations, warranties, agreements and
conditions of the Company) of this Section and to the further effect
that since the respective dates as of which information is given in the
Registration Statement, Prospectus or Prospectus Supplement, there has
not occurred any material adverse change, or any development involving
a prospective material adverse change, in or affecting the business
prospects, financial position, or results of operations of the Company
and its subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement;
(f) Bryan Cave LLP, special counsel for the Company, shall
have furnished to you their written opinion, dated the Closing Date, in
form and substance satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented.
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Securities have been duly authorized,
executed and delivered by the Company and, when duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company, entitled to
the benefits provided by the Indenture, enforceable against
the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by (i) bank
ruptcy, insolvency, reorganization, moratorium and similar
laws now or hereafter in effect relating to creditors'
rights generally, (ii) the effect of rules of law and legal
and equitable principles governing specific perfor mance,
injunctive relief, rights of acceleration and other
equitable remedies, regardless of whether enforceability of
any obligation is considered in a proceeding in equity or at
law, (iii) the conflicts of law or choice of law provisions
contained therein to the extent such provisions may be
applied by any courts other than the courts in the State of
New York, (iv) remedies available in respect of violations
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<PAGE>
or breaches by the Company which are determined by a court
to be the proximate result of action taken by any other
party which actions such other party is not entitled to
take, (v) any provision which purports, by implication or
otherwise, to state that the failure to exercise or a delay
in exercising rights or remedies will not operate as a
waiver of any such right or remedy, or (vi) any provision
which purports or would operate to render ineffective any
waiver or modification not in writing;
(iv) the Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and
binding instrument of the Company enforceable against the
Company in accordance with its terms, except to the extent
enforcement thereof may be limited by (i) bank ruptcy,
insolvency, reorganization, moratorium and similar laws now
or hereafter in effect relating to creditors' rights
generally, (ii) the effect of rules of law and legal and
equitable principles governing specific performance,
injunctive relief, rights of acceleration and other
equitable remedies, regardless of whether enforceability of
any obligation is considered in a proceeding in equity or at
law, (iii) the conflicts of law or choice of law provisions
contained therein to the extent such provisions may be
applied by any courts other than the courts in the State of
New York, (iv) remedies available in respect of violations
or breaches by the Company which are determined by a court
to be the proximate result of action taken by any other
party which actions such other party is not entitled to
take, (v) any provision which purports, by implication or
otherwise, to state that the failure to exercise or a delay
in exercising rights or remedies will not operate as a
waiver of any such right or remedy, or (vi) any provision
which purports or would operate to render ineffective any
waiver or modification not in writing; the Indenture has
been duly qualified under the Trust Indenture Act;
(v) no consent, approval, authorization, order,
license, registra tion or qualification of or with any court
or governmental agency or body is required for the issue and
sale of the Securities or the consummation of the other
transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders,
licenses, registra tions or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act
and as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the
Securities by the Underwriter;
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<PAGE>
(vi) the statements contained in the Basic Prospectus
under "Description of Debt Securities" and in the prospectus
supplement specifi cally relating to the Securities under "The
Notes," insofar as such state ments constitute a summary of
the legal matters or documents referred to therein, fairly
present in all material respects the information called for
with respect to such legal matters and documents and fairly
summarize in all material respects the matters referred to
therein;
(vii) the Registration Statement is effective under
the Securities Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the Securities Act or proceeding therefor initiated or
threatened by the Commission;
(viii) assuming that each document incorporated by
reference in the Registration Statement complied as to form to
the requirements of the Exchange Act, the Registration
Statement (except for the financial statements included
therein as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act. Such counsel shall also
state that based on their participation in conferences with
representatives of the Underwriters, representatives of the
Company, counsel for the Underwriters, counsel for the Company
and representatives of the independent accountants for the
Company during which the contents of the Registration
Statement and the Prospectus and related matters were
discussed (the documents incorporated by reference having been
prepared without their involvement), their review of certain
corporate documents furnished to them by the Company their
understanding of applicable law and the experience they have
gained in their practice thereunder, they advise you that
nothing has come to their attention that caused them to
believe that the Registration Statement (other than the
financial statements and the notes thereto and the
supporting schedules and other financial and statistical
data derived therefrom, set forth therein or incorporated by
reference, as to which no advice is given and except for
that part of the Registration Statement that constitutes the
Form T-1 referred to herein, as to which no advice is
given), as of its effective date or as of the date of such
opinion, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
(other than financial statements and the notes thereto and
the supporting schedules and other financial and statistical
data derived therefrom, set forth herein or incorporated by
reference, as to which no advice is given), as of the date
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<PAGE>
of the Prospectus Supplement, or as of the date of such
opinion, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statement therein, in the
light of the circumstances under which they were made, not
misleading;
In rendering such opinions, such special counsel may rely (A)
as to matters involving the application of laws other than the laws of
the United States, the State of Missouri and the Delaware General
Corporation Law, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; (B) as to
matters of fact, to the extent such special counsel deems proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officials of jurisdictions having custody
of documents respecting the corporate existence or good standing of the
Company. The opinion of such special counsel for the Company shall
state that the opinion of any such other counsel upon which they relied
is in form satisfactory to such counsel and, in such counsel's opinion,
the Underwriters and they are justified in relying thereon. With
respect to the matters to be covered in subparagraph (vii) above
special counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto but is without
independent check or verification except as specified.
The opinion of Bryan Cave LLP described above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(g) Joseph M. Noelker, general counsel for the Company, shall
have furnished to you his written opinion, dated the Closing Date, in
form and substance satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(ii) the Company has been duly qualified as a foreign
corpora tion for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
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<PAGE>
require such qualification, other than where the failure to be
so qualified or in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole;
(iii) each of the Company's "significant
subsidiaries" (as defined in Regulation S-X promulgated by the
Commission) has been duly incorporated and is validly existing
as a corporation under the laws of its jurisdiction of
incorporation with power and authority (corporate and other)
to own its properties and conduct its business as described in
the Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be
so qualified and in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole; and all of the issued shares of capital stock of each
have been duly and validly authorized and issued, are fully
paid and non-assessable, and (except, in the case of foreign
subsidiaries, for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iv) after due inquiry such counsel does not know of
any legal or governmental investigations, actions, suits or
proceedings, pending or threatened against or affecting the
Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its
subsidiaries is or may be a party or to which any property
of the Company or its subsidiaries is or may be the subject
that are required to be described in the Prospectus or
Registration Statement and are not so described;
(v) the issue and sale of the Securities and the
performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not, to the best of such counsel's
knowledge, conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its
subsidiaries, nor will any such action result in any
violation of the provisions of the Certificate of
Incorporation, or the By-Laws of the Company or, to the best
of such counsel's knowledge, conflict with a result in a
violation of any applicable law or statute or any order,
rule or regulation of any court or governmental agency or
15
<PAGE>
body having jurisdiction over the Company, its subsidiaries
or any of their respective properties;
(vi) no consent, approval, authorization, order,
license, registra tion or qualification of or with any court
or governmental agency or body is required for the issue and
sale of the Securities or the consummation of the other
transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations,
orders, licenses, registra tions or qualifications as have
been obtained under the Securities Act and the Trust
Indenture Act and as may be required under state securities
or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter;
(vii) such general counsel is of the opinion that each
document incorporated by reference in the Registration
Statement and the Prospectus as amended or supplemented
(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion)
complied as to form when filed with the Commission in all
material respects with the Exchange Act, and the rules and
regulations of the Commission thereunder;
(viii) the statements (1) in the Registration Statement
under Item 15, (2) in "Item 3 - Legal Proceedings of the
Company's most recent annual report on Form 10-K
incorporated by reference in the Prospectus and (3) in "Item
1-Legal Proceedings" or Part II of the Company's quarterly
reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute
summaries of the legal matters, documents and proceedings
referred to therein, fairly present, in all material
respects, the information called for with respect to such
legal matters, documents and proceedings and fairly
summarize, in all material respects, the matters referred to
therein;
In rendering such opinions, such general counsel may rely, as
to matters involving the application of laws other than the laws of the
United States, the State of Missouri and the Delaware General
Corporation Law, to the extent such general counsel deems proper and to
the extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws. The opinion
of such general counsel for the Company shall state that the opinion of
any such other counsel upon which they relied is in form satisfactory
16
<PAGE>
to such counsel and, in such counsel's opinion, the Underwriters and
they are justified in relying thereon. With respect to the matters to
be covered in subparagraph (vii) above counsel may state their opinion
and belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendment or
supplement thereto but is without independent check or verification
except as specified.
Such counsel shall also state that based on his participation
in conferences with representatives of the Underwriters,
representatives of the Company, counsel for the Underwriters, counsel
for the Company and representatives of the independent accountants for
the Company during which the contents of the Registration Statement and
the Prospectus and related matters were discussed, his review of
certain corporate documents furnished to him by the Company, his
understanding of applicable law and the experience he has gained in his
practice thereunder, he advises you that nothing has come to his
attention that caused him to believe that the Registration Statement
(other than the financial statements and the notes thereto and the
supporting schedules and other financial and statistical data derived
therefrom, set forth therein or incorporated by reference, as to which
no advice is given and except for that part of the Registration
Statement that constitutes the Form T-1 referred to herein, as to which
no advice is given), as of its effective date or as of the date of such
opinion, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus (other than financial statements and the notes
thereto and the supporting schedules and other financial and
statistical data derived therefrom, set forth herein or incorporated
by reference, as to which no advice is given), as of the date of the
Prospectus Supplement, or as of the date of such opinion, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statement
therein, in the light of the circumstances under which they were made,
not misleading.
The opinion of Joseph M. Noelker above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(h) on the date hereof and on the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to you letters, dated
such date, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus;
17
<PAGE>
(i) you shall have received on and as of the Closing Date an
opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the
Underwriters, with respect to the validity of the Indenture and the
Securities, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters; and
(j) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents as the Representa tives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Securities and each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the reasonable legal fees and other
expenses incurred in connection with the investigation or defending of any such
action or claim, any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the case of the Prospectus or any preliminary prospectus,
in the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein, provided, however, that the foregoing
indemnity agreement with respect to any Prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities, or any person, controlling
such Underwriter, if a copy of the Prospectus (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
18
<PAGE>
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter contained in or in
conformity with information furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, or (ii) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Underwriters, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Securities and such control persons of
Underwriters shall be designated in writing by the first of the named
Representatives on Schedule I hereto and any such separate firm for the Company,
its directors, its officers who sign the Registration Statement and such control
persons of the Company or authorized representatives shall be designated in
writing by the Company. The Indemnify ing Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding.
19
<PAGE>
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresen tation. The Underwriters' obligations to
20
<PAGE>
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law of in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations, warranties and covenants of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other person controlling
the Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of or guaranteed by the Company shall have been
suspended or materially limited on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contem plated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
21
<PAGE>
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-tenth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, each affiliate of any Underwriter which assists such Underwriter in
the distribution of the Securities, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunica tion.
Notices to the Underwriters shall be given at the address set forth in Schedule
II hereto. Notices to the Company shall be given to it at The Earthgrains
22
<PAGE>
Company, 8400 Maryland Avenue, St. Louis, Missouri 63105, facsimile number:
(314) 259-7029, Attention: Joseph M. Noelker.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
23
<PAGE>
Very truly yours,
THE EARTHGRAINS COMPANY
By:
---------------------------------------
Name:
Title:
Accepted: April __, 1999
Acting on behalf of itself and
the several Underwriters
listed in Schedule II hereto.
By: J.P. MORGAN SECURITIES INC.
By:
---------------------------------------
Name:
Title:
24
<PAGE>
SCHEDULE I
Representative: J.P. Morgan Securities Inc.
Underwriting Agreement dated: April __, 1999
Registration Statement No.: 333-______
Title of Securities:
Aggregate Principal Amount: $150,000,000
Price to Public: __% of the principal amount of the Securities,
plus accrued interest, if any, from ______, 1999
to the Closing Date.
Indenture: Indenture dated as of April __, 1999 between
the Company and The Bank of New York as
Trustee.
Maturity:
Interest Rate:
Interest Payment Dates:
Optional Redemption
Provisions:
25
<PAGE>
Sinking Fund Provisions:
Other Provisions:
Closing Date and
Time of Delivery:
Closing Location:
Address for Notices
to Underwriters:
26
<PAGE>
SCHEDULE II
Principal Amount
of Securities
Underwriter To Be Purchased
- ----------- ----------------
J.P. Morgan Securities Inc......................................$
Total...........................................................$
27
Exhibit 4
===============================================================================
THE EARTHGRAINS COMPANY
TO
The Bank of New York,
Trustee
-------------------------------------
Indenture
Dated as of ____________, 1999
-------------------------------------
DEBT SECURITIES
================================================================================
<PAGE>
CROSS REFERENCE SHEET
between
The Indenture
and
The Trust Indenture Act of 1939
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
ss.310 (a)(1)............................... 609
(a)(2)............................... 609
(a)(3)............................... Not Applicable
(a)(4)............................... Not Applicable
(a)(5)............................... 609
(b).................................. 608, 610
(c).................................. Not Applicable
ss.311 (a).................................. Not Applicable
(b).................................. Not Applicable
(c).................................. Not Applicable
ss.312 (a).................................. 701, 702(a)
(b).................................. 702(b)
(c).................................. 702(c)
ss.313 (a).................................. 703(a)
(b).................................. 703(a)
(c).................................. 703(a), 703(b)
(d).................................. 703(b)
ss.314 (a).................................. 704, 1004
(b).................................. Not Applicable
(c)(1)............................... 102
(c)(2)............................... 102
(c)(3)............................... Not Applicable
(d).................................. Not Applicable
(e).................................. 102
(f).................................. Not Applicable
ss.315 (a).................................. 601(a)
(b).................................. 602, 703
(c).................................. 601(b)
(d).................................. 601(c)
(d)(1)............................... 601(a)
(d)(2)............................... 601(c)(2)
(d)(3)............................... 601(c)(3)
(e).................................. 514
ss.316 (a)(1)(A)............................ 502, 512
(a)(1)(B)............................ 513
(a)(2)............................... Not Applicable
(b).................................. 508
(c).................................. 104(e)
ss.317 (a)(1)............................... 503
(a)(2)............................... 504
(b).................................. 1003
ss.318 (a).................................. 107
NOTE: This cross reference sheet shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION 1
Section 101. Definitions....................................................1
Section 102. Compliance Certificates and Opinions...........................6
Section 103. Form of Documents Delivered to Trustee.........................7
Section 104. Acts of Holders................................................7
Section 105. Notices, Etc., to Trustee and Company..........................8
Section 106. Notices to Holders; Waiver.....................................8
Section 107. Conflict With Trust Indenture Act..............................8
Section 108. Effect of Headings and Table of Contents.......................8
Section 109. Successors and Assigns.........................................8
Section 110. Separability Clause............................................8
Section 111. Benefits of Indenture..........................................9
Section 112. Governing Law..................................................9
Section 113. Legal Holidays.................................................9
Section 114. Act of Holders When Securities Are Denominated
In Different Currencies........................................9
Section 115. Monies of Different Currencies to Be Segregated................9
Section 116. Payment to Be In Proper Currency.............................. 9
ARTICLE TWO SECURITY FORMS 10
Section 201. Forms Generally...............................................10
Section 202. Form of Face of Security......................................10
Section 203. Form of Trustee's Certificate of Authentication...............12
Section 204. Form of Reverse of Security...................................12
ARTICLE THREE THE SECURITIES 14
Section 301. Title and Terms...............................................14
Section 302. Denominations.................................................16
Section 303. Execution, Authentication, Delivery and Dating................16
Section 304. Temporary Securities..........................................18
Section 305. Registration, Registration of Transfer and Exchange...........18
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..............20
Section 307. Payment of Interest; Interest Rights Preserved................21
Section 308. Persons Deemed Owners.........................................21
Section 309. Cancellation..................................................22
Section 310. CUSIP Numbers.................................................22
ARTICLE FOUR SATISFACTION AND DISCHARGE 22
Section 401. Satisfaction and Discharge of Indenture.......................22
Section 402. Application of Trust Money....................................23
ARTICLE FIVE REMEDIES 23
Section 501. Events of Default.............................................23
Section 502. Acceleration of Maturity; Rescission and Annulment............24
Section 503. Collection of Indebtedness and Suits For Enforcement
By Trustee....................................................26
i
<PAGE>
Section 504. Trustee May File Proofs of Claim..............................26
Section 505. Trustee May Enforce Claims Without Possession of
Securities....................................................27
Section 506. Application of Money Collected................................27
Section 507. Limitation On Suits...........................................28
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..........................................28
Section 509. Restoration of Rights and Remedies............................28
Section 510. Rights and Remedies Cumulative................................28
Section 511. Delay or Omission Not Waiver..................................29
Section 512. Control By Holders............................................29
Section 513. Waiver of Past Defaults.......................................29
Section 514. Undertaking For Costs.........................................29
Section 515. Waiver of Stay or Extension Laws..............................30
Section 516. Exemption From Individual Liability...........................30
ARTICLE SIX THE TRUSTEE 30
Section 601. Certain Duties and Responsibilities...........................30
Section 602. Notice of Defaults............................................31
Section 603. Certain Rights of Trustee.....................................31
Section 604. Not Responsible For Recitals or Issuance of Securities........32
Section 605. May Hold Securities...........................................33
Section 606. Money Held In Trust...........................................33
Section 607. Compensation and Reimbursement................................33
Section 608. Disqualification; Conflicting Interests.......................33
Section 609. Corporate Trustee Required; Eligibility.......................33
Section 610. Resignation and Removal; Appointment of Successor.............34
Section 611. Acceptance of Appointment By Successor........................35
Section 612. Merger, Conversion, Consolidation or Succession to Business...36
Section 613. Trustee's Application for Instructions from the Company.......36
ARTICLE SEVEN HOLDERS'LISTS AND REPORTS BY TRUSTEE AND COMPANY 36
Section 701. Company to Furnish Trustee Names and Addresses of Holders.....36
Section 702. Preservation of Information; Communications to Holders........36
Section 703. Reports By Trustee............................................37
Section 704. Reports By Company............................................38
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER 38
Section 801. Company May Consolidate, Etc., Only On Certain Terms..........38
Section 802. Successor Corporation Substituted.............................39
Section 803. Evidence to Be Furnished Trustee..............................39
ARTICLE NINE SUPPLEMENTAL INDENTURES 39
Section 901. Supplemental Indentures Without Consent of Holders............39
Section 902. Supplemental Indentures With Consent of Holders...............40
Section 903. Execution of Supplemental Indentures..........................41
Section 904. Effect of Supplemental Indentures.............................41
Section 905. Conformity With Trust Indenture Act...........................41
Section 906. Reference In Securities to Supplemental Indentures............41
ii
<PAGE>
ARTICLE TEN COVENANTS 41
Section 1001. Payment of Principal, Premium and Interest...................41
Section 1002. Maintenance of Office or Agency..............................41
Section 1003. Money For Security Payments to Be Held In Trust;
Appointment of Paying Agent..................................42
Section 1004. Statement As to Default......................................43
Section 1005. Corporate Existence..........................................43
Section 1006. Limitation Upon Liens........................................43
Section 1007. Sale-Leaseback Transactions Relating to
Principal Plants.............................................45
Section 1008. Limitation Upon Funded Debt of Restricted
Subsidiaries.................................................47
Section 1009. Appointment to Fill A Vacancy In The Office
of Trustee...................................................47
Section 1010. Further Instruments and Acts.................................47
Section 1011. Waiver of Certain Covenants..................................47
Section 1012. Calculation of Original Issue Discount.......................47
ARTICLE ELEVEN REDEMPTION OF SECURITIES 48
Section 1101. Right of Redemption..........................................48
Section 1102. Applicability of Article.....................................48
Section 1103. Election to Redeem; Notice to Trustee........................48
Section 1104. Selection By Trustee of Securities to Be Redeemed............48
Section 1105. Notice of Redemption.........................................48
Section 1106. Deposit of Redemption Price..................................49
Section 1107. Securities Payable On Redemption Date........................49
Section 1108. Securities Redeemed In Part..................................49
ARTICLE TWELVE SINKING FUND 50
Section 1201. Sinking Fund Payments........................................50
Section 1202. Satisfaction of Sinking Fund Payments With Securities........50
Section 1203. Redemption of Securities For Sinking Fund....................50
ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE 51
Section 1301. Defeasance...................................................51
Section 1302. Covenant Defeasance..........................................51
Section 1303. Conditions to Defeasance or Covenant Defeasance..............51
Section 1304. Application of Funds.........................................52
Section 1305. Reinstatement................................................52
iii
<PAGE>
THIS INDENTURE, dated as of _______________, 1999, is between THE
EARTHGRAINS Company, a Delaware corporation (hereinafter called the "Company")
having its principal office at 8400 Maryland Avenue, St. Louis, Missouri 63105,
and THE BANK OF NEW YORK, a New York banking corporation (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured notes,
debentures or other evidences of indebtedness (collectively, the "Securities"),
to be issued from time to time in one or more series (a "Series") as provided in
this Indenture and as shall be provided, in respect of any Series, in or
pursuant to the Authorizing Resolution hereinafter referred to and in the
indenture supplemental hereto (if any) relating to such Series.
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
from time to time by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means the Trustee or other Person designated by the
Company from time to time, on written notice to the Trustee, to authenticate and
deliver Securities of one or more Series pursuant to Section 303.
<PAGE>
"Authorizing Resolution" means a Board Resolution providing for the
issuance of a Series of Securities, which is to be delivered to the Trustee
pursuant to Section 303 hereof.
"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 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 in which the
Corporate Trust Office and the Paying Agent are located are authorized or
obligated by law or executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman, the President or a
Vice President of the Company (any reference to a Vice President of the Company
herein to be deemed also to include any Vice President of the Company designated
by a number or a word or words added before or after such title), and also by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary, and delivered to the Trustee and to the
Authenticating Agent, if any, in respect of the Series to which the Company
Order shall relate.
"Consolidated Total Assets" means the consolidated total assets of the
Company and its Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the date of the execution of this Indenture is located at 101 Barclay
Street, Floor 21 West, New York, New York 10286, Attn.: Corporate Trust
Administration.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to any Securities of any Series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary", as used with respect to the Securities of
any such Series, shall mean or include the Depositary with respect to the Global
Securities of that Series.
"Domestic Subsidiary" means any Subsidiary other than a Subsidiary
incorporated, or the principal place of business of which is located, outside
the present fifty states of the United States of America and the District of
Columbia.
"Extendible Securities" means Securities of any Series issued hereunder
the final maturity of which is extendible for a stated period of time, as shall
be provided in, or pursuant to, the Authorizing Resolution and supplemental
indenture (if any) relating to such Series.
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"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for money borrowed and indebtedness
represented by notes, debentures and other similar evidences of indebtedness,
including purchase money indebtedness, having a maturity of more than twelve
months from the date as of which the amount thereof is to be determined or
having a maturity of less than twelve months but by its terms being renewable or
extendible beyond twelve months from such date at the option of the borrower,
subject only to conditions which the borrower is then capable of fulfilling, and
guarantees of such indebtedness of other Persons; provided, that Funded Debt
shall not include:
(i) Any indebtedness of a Person, evidence of which is
held in treasury by such Person; or
(ii) Any indebtedness with respect to which there shall have
been deposited with a depository (or set aside and segregated by the
obligor if permitted by the instrument creating such indebtedness), in
trust, on or prior to maturity, funds sufficient to pay such
indebtedness; or
(iii) Any contingent obligations in respect of indebtedness of
other Persons, including agreements, contingent or otherwise, with such
other Persons or with third persons with respect to, or to permit or
assure the payment of, obligations of such other Persons, including,
without limitation, agreements to purchase or repurchase obligations of
such other persons, agreements to advance or supply funds to or to
invest in such other Persons, or agreements to pay for property,
products or services of such other Persons (whether or not conveyed,
delivered or rendered), and any through-put, take-or-pay, keep-well,
make-whole or maintenance of working capital or earnings or similar
agreements.
"Global Security" means a registered Security evidencing all or part of a
Series of Securities, issued to the Depositary for such Series in accordance
with Section 303, and bearing the legend prescribed in Section 303.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the forms and terms of particular Series of Securities established as
contemplated hereunder.
"Interest" means, when used with respect to non-interest-bearing
Securities, interest payable after Maturity.
"Interest Payment Date" means, for any Series of Securities issued and
outstanding hereunder, the date or dates in each year on which any interest on
such Series shall become due and payable, as therein or herein provided.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Maturity Date" means the date specified in each Security on which the
principal thereof is due and payable in full.
"Officers' Certificate" means a certificate signed by the Chairman, the
Chief Executive Officer, the President or any Vice President of the Company (any
reference to a Vice President of the Company to be deemed also to include any
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Vice President of the Company designated by a number or a word or words added
before or after such title), and also by the Treasurer, an Assistant Treasurer,
the Controller, an Assistant Controller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
who may be an employee of or of counsel to the Company or other counsel. Each
such opinion shall include the statements provided for in Section 102, if and to
the extent required by the provisions thereof.
"Original Issue Date" means the date on which a Security is issued to the
original purchaser thereof, as specified in such Security.
"Original Issue Discount Securities" means Securities which provide for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities, or Securities of any
particular Series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities, provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities paid pursuant to Section 306; and
(iv) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount that would be due and payable
as of the date of determination upon a declaration of acceleration thereof
pursuant to Section 502 and (b) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means, with respect to any Series of Securities, any Person
authorized by the Company to pay the principal of (and premium, if any) or
interest on any such Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
lost, destroyed or stolen Security shall be deemed to evidence the same debt as
the lost, destroyed or stolen Security.
"Principal Plant" means any production facility now owned or hereafter
acquired by the Company or any Domestic Subsidiary, but shall not include any
such facility which the Company shall by Board Resolution have determined is not
a Principal Plant; provided that, at the time of any such determination, all
such facilities which have been so determined not to be Principal Plants, taken
together, are not of material importance to the total business conducted by the
Company and its Subsidiaries. Any such determination shall be effective upon the
date specified in the applicable Board Resolution. Such designation of a
facility as a Principal Plant or as excluded from the definition of Principal
Plan may be made at varying times, subject only to the limitation set forth in
the first sentence of this definition.
"Redeemable Securities" means Securities of any Series which may be
redeemed, at the option of the Company, prior to the Stated Maturity thereof, on
the terms specified in or pursuant to the Authorizing Resolution relating to
such Series and in accordance with Article Eleven herein.
"Redemption Date" when used with respect to any Security of any Series to
be redeemed means the date fixed for such redemption by or pursuant to the
provisions of such Security, this Indenture and the Authorizing Resolution and
supplemental indenture (if any) relating to such Security.
"Redemption Price" when used with respect to any Security of any Series to
be redeemed means the price at which it is to be redeemed pursuant to the
provisions of such Security, this Indenture and the Authorizing Resolution and
supplemental indenture (if any) relating to such Security.
"Regular Record Date" means, for the interest payable on any Interest
Payment Date in respect of any Series of Securities, except as provided in, or
pursuant to, the Authorizing Resolution and supplemental indenture (if any)
relating thereto, the fifteenth day (whether or not a Business Day) of the
calendar month next preceding the month during which such Interest Payment Date
occurs.
"Responsible Officer" when used with respect to the Trustee or an
Authenticating Agent means any Vice President (whether or not designated by a
number or a word or words added before or after the title "Vice President"), the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Senior Trust Officer or Trust Officer, any other officer of the Trustee or such
Authenticating Agent 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.
"Restricted Subsidiary" means (i) any Domestic Subsidiary which owns or
operates a Principal Plant and (ii) any other Subsidiary which the Company, by
Board Resolution, shall elect to be treated as a Restricted Subsidiary, until
such time as the Company may, by further Board Resolution, elect that such
Subsidiary shall no longer be a Restricted Subsidiary, successive such elections
being permitted without restriction. Any such election shall be effective as of
the date specified in the applicable Board Resolution.
"Securities" means the securities of the Company to be issued from time to
time hereunder.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Series" means, with respect to Securities issued hereunder, the Securities
issued pursuant to any particular Authorizing Resolution, subject to the right
of the Board of Directors to specify in such Authorizing Resolution that such
Securities shall constitute more than one Series.
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"Sinking Fund" means, with respect to any Sinking Fund Securities, a
sinking fund provided for in Article Twelve.
"Sinking Fund Securities" means Securities of any Series which are required
to be redeemed from time to time prior to the Stated Maturity thereof in whole
or in part under a Sinking Fund, on the terms specified in the Authorizing
Resolution relating to such Series and in accordance with Article Twelve herein.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any installment
of interest thereon means the date specified in such Security as the fixed date
on which the principal of such Security or such installment of interest is due
and payable.
"Subsidiary" means any corporation of which more than 50% of the issued and
outstanding stock entitled to vote for the election of directors (otherwise than
by reason of default in dividends or other contingency) is at the time owned
directly or indirectly by the Company and/or one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean and
include the Person, or each Person, who is then a Trustee hereunder, and if at
any time there is more than one such Person, "Trustee" as used with respect to
the Securities of any Series shall mean the Trustee with respect to Securities
of that Series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this instrument was executed,
except as provided in Section 905.
"Unrestricted Subsidiary" means any Subsidiary which is not a Restricted
Subsidiary.
"Yield to Maturity" means, with respect to any Series of Securities, the
yield to maturity thereof, calculated at the time of issuance thereof, or, if
applicable, at the most recent redetermination of interest thereon, and
calculated in accordance with accepted financial practice.
Section 102. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than certificates provided
pursuant to Section 1004) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
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(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders
(a) Any request, demand, authorization, direction, notice, consent, waiver,
vote or other action provided by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind 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.
(e) The record date for determining which Holders may act hereunder is the
later of the 30th day prior to the first solicitation of Holders relating to
such act or the date of the most recent list of Holders furnished to the Trustee
pursuant to Section 701 prior to such first solicitation, provided, that so long
as the Trustee is the Security Registrar, such record date shall be the 30th day
prior to such first solicitation.
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Section 105. Notices, Etc., to Trustee and Company
Except as provided in Section 501, any request, demand, authorization,
direction, notice, consent, or waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing (by
original or facsimile copy) 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 (except as provided in Section 501 (4)), if in
writing and mailed, first class postage prepaid, to the Company, to the
attention of the Secretary, and a copy thereof to the attention of the
Treasurer, addressed to it at the address of the principal office of the
Company specified in the first paragraph of this instrument or at such
other address as shall have been furnished in writing to the Trustee by the
Company for this purpose.
Section 106. Notices to Holders; Waiver
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears on the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict With Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with another
provision which is required or deemed to be included in this Indenture by any of
the provisions of TIA, such provision so required or deemed to be included
herein shall control.
Section 108. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 110. Separability Clause
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 111. Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Paying Agent and their
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Law
This Indenture shall be construed in accordance with and governed by the
laws of the State of New York, without regard to principles of conflicts of
laws.
Section 113. Legal Holidays
In any case where any Interest Payment Date, any Redemption Date, or the
Stated Maturity of any Security, or any date on which any Defaulted Interest is
proposed to be paid, shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or Redemption Date, at the Stated Maturity, or on the
date on which the Defaulted Interest is proposed to be paid, and no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity or date for the payment of Defaulted
Interest, as the case may be.
Section 114. Act of Holders When Securities Are Denominated In Different
Currencies
Whenever any action or Act is to be taken hereunder by the Holders of two
or more Series of Securities denominated in different currencies, then, for the
purposes of determining the principal amount of Securities held by such Holders,
the aggregate principal amount of the Securities denominated in a currency other
than United States dollars shall be deemed to be that amount of United States
dollars that could be obtained for such principal amount on the basis of the
spot rate of exchange for such currency as determined by the Company or by an
authorized exchange rate agent and evidenced to the Trustee by an Officers'
Certificate as of the date the taking of such action or Act by the Holders of
the requisite percentage in principal amount of the Securities is evidenced to
the Trustee. An exchange rate agent may be authorized in advance or from time to
time by the Company, and may be the Trustee or its Affiliate. Any such
determination by the Company or by any such exchange rate agent shall be
conclusive and binding on all Holders and the Trustee, and neither the Company
nor such exchange rate agent shall be liable therefor in the absence of bad
faith.
Section 115. Monies of Different Currencies to Be Segregated
The Trustee shall segregate monies, funds, and accounts held by the Trustee
hereunder in one currency from any monies, funds or accounts in any other
currencies, notwithstanding any provision herein which would otherwise permit
the Trustee to commingle such amounts.
Section 116. Payment to Be In Proper Currency
Each reference in any Security, or in the Authorizing Resolution relating
thereto, to any currency shall be of the essence. In the case of any Security
denominated in any currency (the "Required Currency") other than United States
dollars, except as otherwise provided therein or in the related Authorizing
Resolution, the obligation of the Company to make any payment of principal,
premium or interest thereon shall not be discharged or satisfied by any tender
by the Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is in a currency other than
the Required Currency, the Trustee may exchange such currency for the Required
Currency. The costs and risks of any such exchange, including without limitation
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the risks of delay and exchange rate fluctuation, shall be borne by the Company,
the Company shall remain fully liable for any shortfall or delinquency in the
full amount of Required Currency then due and payable, and in no circumstances
shall the Trustee be liable therefor. The Company hereby waives any defense of
payment based upon any such tender or recovery which is not in the Required
Currency, or which, when exchanged for the Required Currency by the Trustee, is
less than the full amount of Required Currency then due and payable.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally
The Securities of each Series and the certificate of authentication thereon
shall be in substantially the forms set forth in this Article or in such other
forms, including the form of one or more Global Securities, as shall be
specified in, or pursuant to, the Authorizing Resolution or in the indenture
supplemental hereto (if any) relating to such Series, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or the said Authorizing Resolution or supplemental
indenture, and they may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange, or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities of each Series shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, or, if they shall not
be listed on any securities exchange, in any other manner consistent herewith,
all as shall be determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 202. Form of Face of Security
[The following is to be included if the Security is an Original Issue
Discount Security:]
[FOR PURPOSES OF SECTION 1273 OF THE UNITED STATES INTERNAL REVENUE CODE OF
1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT
AND ITS ISSUE DATE IS , ]
THE EARTHGRAINS COMPANY
[title of Security] Cusip No. ______
Rate of Interest Maturity Date Original Issue Date
- ---------------- ------------- -------------------
No ................
THE EARTHGRAINS COMPANY, a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the sum of
on the Maturity Date shown above, and to pay interest thereon, at the annual
rate of interest shown above, from the Original Issue Date shown above or from
the most recent Interest Payment Date (as hereinafter defined) to which interest
has been paid or duly provided for, payable semi-annually on and _________ of
each year and at maturity (an "Interest Payment Date"), commencing on the first
such date after the Original Issue Date, except that if the Original Issue Date
is on or after a Regular Record Date (which term, as well as all other
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capitalized terms used herein, shall have the meanings assigned in the Indenture
referred to on the reverse hereof unless otherwise indicated) but before the
next Interest Payment Date, interest payments will commence on the second
Interest Payment Date following the Original Issue Date.
[provision specifying the manner in which interest shall be calculated]
[reference to currency[ies] of payment and currency exchange
arrangements, if applicable]
The interest payable hereon, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in said Indenture, be paid to the
Person in whose name this [name of Security] (or one or more Predecessor [name
of Series]) is registered at the close of business on the Regular Record Date
for such interest, which shall be the fifteenth day of the calendar month
(whether or not a Business Day) next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the registered Holder on such Regular Record Date, and may be
paid to the Person in whose name this [name of Security] (or one or more
Predecessor [name of Series]) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of [name of Series] not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the [name of Series] may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in such
Indenture. Payment of the principal of (and premium, if any) and interest on
this [name of Security] will be made at the office or agency of the Company
maintained for that purpose in [The Borough of Manhattan, The City of New York
or other place of payment], in [reference to United States dollars or other
currency of payment]; provided, however, that payment of interest, other than
interest due on a Maturity Date, may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address shall
appear on the Security Register. [Include the following, if applicable:]
Payments on the Maturity Date will be made in immediately available funds
against presentment of this [name of Security].
Reference is hereby made to the further provisions of this [name of
Security] set forth on the reverse hereof which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
_____________________, the Trustee under the Indenture, or its successor
thereunder, or by another Authenticating Agent appointed pursuant to the
Indenture, by the manual signature of one of its authorized signatories this
[name of Security] shall not be entitled to any benefit under the Indenture, nor
be valid or obligatory for any purpose.
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In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated ________________________
THE EARTHGRAINS COMPANY
By___________________________
[title of Company Officer]
Attest:
- ----------------------------
[Assistant] Secretary
Section 203. Form of Trustee's Certificate of Authentication
This is one of the [name of Series] referred to in the within-mentioned
Indenture.
Dated________________________
THE BANK OF NEW YORK,
as Trustee
[reference to Authenticating Agent,
if any]
By ________________________________
Authorized Signatory
Section 204. Form of Reverse of Security
This [name of Security] is one of a duly authorized issue of [name of
Securities] of the Company designated as its [title of Series] (herein called
the "[name of Series]"), issued and to be issued under an indenture dated as of
_________, 1999 (herein called the "Indenture"), between the Company and
____________________, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and under [reference to
Authorizing Resolution and/or supplemental indenture relating to the Series] to
which Indenture, [reference to Authorizing Resolution and/or supplemental
indenture] and all [further] indentures supplemental thereto reference is hereby
made for the definition of certain terms used herein, for a statement of the
respective rights thereunder of the Company, the Trustee and the Holders of the
[name of Series], and for the terms upon which the [name of Series] are, and are
to be, authenticated and delivered. This [name of Series] is one of a series of
securities issued or to be issued by the Company under the Indenture, limited in
aggregate principal amount to . The Indenture provides that the Securities of
the Company referred to therein ("Securities"), including the [name of Series],
may be issued in one or more Series, which different Series may be issued in
such principal amounts and on such terms (including, but not limited to, terms
relating to interest rate or rates, provisions for determining such interest
rate or rates and adjustments thereto, maturity, redemption (optional and
mandatory), sinking fund, covenants and Events of Default) as may be provided in
or pursuant to the Authorizing Resolutions (as defined in the Indenture)
relating to the several Series.
[The following to be included if the Securities are not redeemable prior to
maturity.]
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This [name of Security] may not be redeemed prior to its Maturity Date.
[The following paragraph, or other appropriate redemption provisions, to be
included if the Securities are Redeemable Securities:]
The [name of Series] are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail, [the following clause to be included if there
is a Sinking Fund:] [(1) on [annual Sinking Fund Redemption Date] in each year
commencing with the year [year of first Sinking Fund payment] through operation
of the Sinking Fund at a Redemption Price equal to their principal amount and
(2)] [at any time] in whole or in part, at the election of the Company at a
Redemption Price equal to the percentage set forth below of the principal amount
to be redeemed for the respective twelve-month periods beginning [ ] of the
years indicated:
[Schedule of Redemption Prices]
and thereafter at 100% of the principal amount thereof, together in each
case with accrued interest to the Redemption Date.
[The following paragraph, or other appropriate Sinking Fund provision, to
be included if there is a Sinking Fund for the Series:]
The Sinking Fund provides for the redemption on [first Sinking Fund
Redemption Date] and on [annual Sinking Fund Redemption Date] in each year
thereafter through [year of final Sinking Fund date] of not less than [minimum
required Sinking Fund redemption amount] principal amount nor more than [maximum
permitted Sinking Fund redemption amount] principal amount of [name of Series].
[name of Series] purchased, acquired or redeemed by the Company otherwise than
by redemption through the Sinking Fund may be credited against subsequent
Sinking Fund requirements.
[The following paragraph to be included if the Securities are Redeemable
Securities or Sinking Fund Securities:]
In the event of redemption of this [name of Security] in part only, a new
[name of Security] or [name of Series] for the unredeemed portion hereof shall
be issued in the name of the Holder hereof upon the surrender hereof.
[The following paragraph to be included if the Securities are not Original
Issue Discount Securities:]
If an Event of Default, as defined in the Indenture and in the Authorizing
Resolution and supplemental indenture (if any) relating to the [name of Series]
(if there shall be any additional Events of Default specified in respect of the
[name of Series]), shall occur and be continuing, the principal of all the [name
of Series] may be declared due and payable in the manner and with the effect
provided in the Indenture.
[If the Securities are Original Issue Discount Securities, insert schedule
as to amounts which are payable on acceleration under Section 502 and provable
in bankruptcy under Section 504(i) from time to time.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the [name of Series] under the
Indenture at any time by the Company with the consent of the Holders of a
majority in aggregate principal amount of the Securities affected thereby,
voting as a single class (which may include the [name of Series]), at the time
Outstanding, as defined in the Indenture. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this [name of Security] shall be conclusive and binding upon such Holder and
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upon all future Holders of this [name of Security] and of any [name of Security]
issued on transfer hereof or in exchange herefor or in lieu hereof whether or
not notation of such consent or waiver is made upon this [name of Security].
No reference herein to the Indenture and no provision of this [name of
Security] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this [name of Security] at the times, place,
and rate, and in the currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this [name of Security] is registrable on the Security
Register of the Company, upon surrender of this [name of Security] for
registration of transfer at the office or agency of the Company provided for
that purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new [name of Series], of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
The [name of Series] are issuable only as registered [name of Series]
without coupons in denominations of [currency and minimum denomination] and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, [name of Series] are exchangeable for a like
aggregate principal amount of [name of Series] of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this [name of
Security], the Company, the Trustee and any agent of the Company may treat the
Person in whose name this [name of Security] is registered as the owner hereof
for all purposes whether or not this [name of Security] be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
[Reference to Foreign Currencies]
No recourse shall be had for the payment of the principal of (or premium,
if any) or the interest on this [name of Security], or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
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The Securities may be issued in one or more Series. The terms of each
Series shall be as provided in an Authorizing Resolution or supplemental
indenture or shall be determined in the manner specified therein. The terms to
be specified in respect of each Series in the Authorizing Resolution or
supplemental indenture, or by such person and/or procedures as shall be provided
therein, shall include the following:
(1) The title of the Securities (including Cusip numbers, if
available) of such Series, which shall distinguish such Series from all
other Series;
(2) The aggregate principal amount of the Securities of such Series
which may be authenticated and delivered under this Indenture (except for
Securities of such Series authenticated and delivered upon transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906 or 1108, or additional Securities of such Series which may be
authorized as described in paragraph 14 below );
(3) The date or dates on which the principal and premium, if any, of
the Securities of such Series is payable, and, if the Series shall be
Extendible Securities, the terms on which the Company or any other Person
shall have the option to extend the Maturity of such Securities and the
rights, if any, of the Holders to require payment of the Securities;
(4) The rate or rates at which the Securities of such Series shall
bear interest, if any (whether floating or fixed), the provisions, if any,
for determining such interest rate or rates and adjustments thereto, the
date or dates from which such interest shall accrue, the Interest Payment
Dates therefor and the Regular Record Dates (if different from those
provided in the form of Security herein set forth) for the determination of
Holders of the Securities of such Series to whom interest is payable;
(5) The place or places where the principal of, or premium, if any, and
interest on Securities of such Series shall be payable (if other than as
provided in Section 1002);
(6) The price or prices at which, the period or periods within which
and the terms and conditions upon which the Securities of such Series may
be redeemed, in whole or in part, at the option of the Company, pursuant
to a Sinking Fund or otherwise;
(7) The obligation, if any, of the Company to redeem, purchase or
repay Securities of such Series, in whole or in part, pursuant to a
Sinking Fund or otherwise or at the option of a Holder thereof, and the
price or prices at which, the period or periods within which and the terms
and conditions upon which such redemption, purchase or repayment shall be
made;
(8) Any Events of Default with respect to the Securities of such Series
which may be in addition to those provided herein, and any covenants or
obligations of the Company to the Holders of the Securities of such Series
in addition to those set forth herein;
(9) If less than 100% of the principal amount of the Securities of such
Series is payable on acceleration under Section 502 or provable in
bankruptcy under Section 504(i) at any time, a schedule of or the manner
of computing the amounts which are so payable and provable from time to
time;
(10) The form of the Securities of such Series (which may be, but which
need not be, consistent with the form set forth in Article Two hereof),
including whether the Securities of the Series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case,
the Depositary or Depositaries for such Global Security or Securities;
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(11) If other than United States dollars, the currency(ies) in which
payment of the principal of (and premium, if any) or interest, if any, on
the Securities of that Series shall be payable;
(12) If the principal of (and premium, if any) or interest, if any, on
the Securities of that Series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies other than that
in which the Securities are stated to be payable, the period or periods
within which, and the terms and conditions upon which, such election may
be made;
(13) If the amount of payments of principal of (and premium, if any) or
interest, if any, on the Securities of the Series may be determined with
reference to a currency, currency unit, commodity or financial or
non-financial index or indices, the manner in which such amounts shall be
determined;
(14) Whether additional Securities may be authenticated and delivered
under the Indenture which shall constitute a part of the same Series (in
which event, such additional Securities shall have the same interest date,
the same date from which interest accrues, the same maturity date and the
same "Cusip" numbers (if any), and which shall otherwise have the same
payment terms as the Securities initially issued as such Series; and
(15) Any other terms of the Securities of such Series; provided, that
such other terms shall not be inconsistent with any express terms of this
Indenture or in conflict with any express terms of any other Series of
Securities which shall be issued and Outstanding.
All Securities of any one Series shall be substantially identical in form
except as to denomination and except as may be otherwise provided in and
pursuant to the Authorizing Resolutions or supplemental indenture (if any)
relating thereto.
Section 302. Denominations
Unless otherwise provided by Section 301 in connection with the issuance of
Global Securities, the Securities of each Series may be issued only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof, or in such other currencies or denominations as may be
specified in, or pursuant to, the Authorizing Resolution relating to the Series.
Section 303. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by its Chairman,
its Chief Executive Officer, its President or one of its Vice Presidents under
its corporate seal reproduced thereon and attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any Series executed by the
Company to the Authenticating Agent, together with a Company Order for the
authentication and delivery of such Securities. The Company Order may provide
that the Securities which are the subject thereof shall be authenticated and
delivered by the Authenticating Agent upon the telephonic, written or other
order of Persons designated in the Company Order, and that such Persons are
authorized to specify the terms and conditions of such Securities, to the extent
permitted by the Authorizing Resolution relating thereto. The Trustee shall
execute and deliver the supplemental indenture (if any) relating to said
Securities and the Authenticating Agent shall authenticate and make available
for delivery said Securities as specified in such Company Order; provided, that,
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prior to authentication and delivery of the first Securities of any Series, the
Trustee and the Authenticating Agent shall have received:
(1) A copy of the Authorizing Resolution, with a copy of the form of
Security approved thereby attached thereto;
(2) A supplemental indenture in respect of the issuance of the Series,
if called for by the terms of the Authorizing Resolution in respect
thereof, executed on behalf of the Company;
(3) An Officers' Certificate to the effect that the Securities of such
Series comply or will comply with the requirements of this Indenture and
the said Authorizing Resolution and supplemental indenture (if any);
(4) An Opinion of Counsel (a) to the effect that (i) the Securities of
such Series, the Authorizing Resolution and the supplemental indenture (if
any) relating thereto comply or will comply with the requirements of this
Indenture, (ii) the Securities of such Series, when authenticated and
delivered by the Authenticating Agent in accordance with the said Company
Order, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, subject to (A) bankruptcy and
other laws affecting creditors' rights generally as in effect from time to
time, (B) limitations of generally applicable equitable principles and (C)
other exceptions as are necessary; and (b) relating to such other matters
as may reasonably be requested by the Trustee or its counsel; and
(5) If the Securities to be issued are Original Issue Discount
Securities, an Officers' Certificate setting forth the Yield to Maturity
for the Securities or other information sufficient to compute amounts due
on acceleration, or specifying the manner in which such amounts are to be
determined, provided that such Yield to Maturity and other facts are not
specified in the form of the Securities.
If the Company shall establish pursuant to Section 301 that the Securities
of a Series are to be issued in whole or in part in the form of one or more
Global Securities, then the Company shall execute and the Authenticating Agent
shall, in accordance with this Section and the Company Order with respect to
such Series, authenticate and make available for delivery one or more Global
Securities in temporary or permanent form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such Series to be represented by one or more
Global Securities, (ii) shall be registered in the name of the Depositary for
such Global Security of Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary."
Each Depositary designated pursuant to Section 301 for a Global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
Subject to Section 601 hereof, the Authenticating Agent and the Trustee
shall be fully protected in relying upon the documents delivered to it as
provided above in connection with the issuance of any Series of Securities.
The Authenticating Agent shall have the right to decline to authenticate
and deliver any Securities under this Section if the Authenticating Agent, being
advised by counsel, determines that such action may not lawfully be taken or if
the Authenticating Agent in good faith by a committee of its Responsible
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Officers shall determine that such action would expose the Authenticating Agent
to liability to Holders of previously issued and Outstanding Securities.
Each Security shall be dated the date of its authentication unless
otherwise specified in the Authorizing Resolution relating thereto.
No Security shall be entitled to any benefit under this Indenture, or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Authenticating Agent by the manual signature of one of its
authorized signatories, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Section 304. Temporary Securities
Pending the preparation of definitive Securities of any Series, the Company
may execute, and upon compliance with the requirements of Section 303 the
Authenticating Agent shall authenticate and make available for delivery
temporary Securities, which may be printed, lithographed, typewritten,
photocopied or otherwise produced, in any denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
If temporary Securities of any Series are issued, the Company shall
thereafter cause definitive Securities for such Series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities, at the office or agency of the Company
provided for that purpose, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall execute
and the Authenticating Agent shall authenticate and make available for delivery
in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged, the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
Section 305. Registration, Registration of Transfer and Exchange
The Company shall cause to be kept a register at one of its offices or
agencies maintained pursuant to Section 1002 (herein referred to as the
"Security Register") in which, subject to such reasonable regulations as the
Company may prescribe, the Company shall provide for the registration of
Securities and the registration of transfers of Securities. At all reasonable
times the Security Register shall be open for inspection by the Trustee. The
Security Register shall be kept at the said office or agency, and said office or
agency is hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided. If the
Security Registrar shall not be the Authenticating Agent in respect of any
Series, the Company shall promptly notify the Security Registrar as to the
amounts and terms of each Security of such Series which shall be authenticated
and delivered hereunder, and as to the names in which such Securities shall be
registered.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company provided for that purpose, the Company shall execute,
and the Authenticating Agent shall authenticate and make available for delivery
in the name of the designated transferee or transferees, one or more new
Securities of the same Series and Stated Maturity of a like aggregate principal
amount.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities of a Series may not be
transferred except as a whole by the Depositary for such Series or to a nominee
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of such Depositary 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.
At the option of the Holder, Securities of any Series (other than a Global
Security, except as set forth below) may be exchanged for other Securities of
the same Series of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Authenticating Agent shall authenticate and make
available for delivery, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for any Securities of a Series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such Series or if at any time the Depositary for the Securities of
such Series shall no longer be eligible under Section 303, the Company shall
appoint a successor Depositary eligible under Section 303, with respect to the
Securities of such Series. If a successor Depositary eligible under Section 303
for the Securities of such Series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company's election pursuant to Section 301(10) that the Securities of such
Series be represented by one or more Global Securities shall no longer be
effective with respect to the Securities of such Series and the Company shall
execute and the Authenticating Agent, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such Series, shall
authenticate and make available for delivery, Securities of such Series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such Series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any Series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company shall execute, and the Authenticating Agent, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such Series, shall authenticate and make available for delivery Securities of
such Series in definitive form and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such Series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
Series of Securities represented by a Global Security, the Depositary for such
Global Securities may surrender a Global Security for such Series of Securities
in exchange in whole or in part for Securities of such Series in definitive form
on such terms as are acceptable to the Company and such Depositary. Thereupon,
the Company shall execute, and the Authenticating Agent shall authenticate and
make available for delivery without service charge:
(i) to each Person specified by such Depositary a new Security or
Securities of the same Series, of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for
such Person'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
pursuant to clause (i) above.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Authenticating Agent will authenticate and make
available for delivery Securities in definitive registered form in authorized
denominations.
Upon the exchange of a Global Security for Securities in definitive
registered form, such Global Security shall be cancelled by the Trustee or an
agent of the Company or the Trustee. The Trustee or such agent shall deliver
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such Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security of any Series during a period beginning at the opening of
the day which is 15 Business Days before the day of the mailing of a notice of
redemption of Securities of such Series selected for redemption under Section
1104 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not to be redeemed.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities
If (i) any mutilated Security is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, and (ii) there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Authenticating Agent shall authenticate and
make available for delivery in exchange for, or in lieu of, any such mutilated,
destroyed, lost or stolen Security, a new Security of like tenor, Series and
principal amount, bearing a number not assigned to any Security of the same
Series then outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay the indebtedness represented by such
Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same Series duly issued hereunder.
The provisions of this Section are exclusive and (to the extent lawful)
shall preclude all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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Section 307. Payment of Interest; Interest Rights Preserved
Interest which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date, on the Securities of any Series, shall be paid to the
Persons in whose names the Securities (or one or more Predecessor Securities)
are registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any Series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder,
as such, on the Regular Record Date for such payment; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security of
such Series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount of such Defaulted Interest proposed to be paid or shall
make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such Series
at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names the said Securities (or their respective Predecessor
Securities) are registered 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 in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of such Series 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 payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners
Prior to due presentment for registration of transfer of any Security, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any), and
(subject to Section 307) interest on, such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
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the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. Cancellation
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee. All Securities so delivered and any Securities
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by the Trustee and all Securities of any Series delivered to the
Trustee for credit against any Sinking Fund payment in respect of such Series
pursuant to Section 1202 shall be promptly cancelled by the Trustee. 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 all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of by the Trustee in its customary manner.
Section 310. Cusip Numbers
The Company in issuing the Securities may use "Cusip" numbers (if then
generally in use), and, if so, the Trustee shall use "Cusip" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company shall promptly notify
the Trustee of any change in the Cusip numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for, and except as otherwise provided in the Authorizing
Resolution in respect of any Series), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
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(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with
the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to
the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered to the Trustee a Company Order setting
forth its election that this Indenture shall be discharged; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Sectio 607 shall survive such
satisfaction and discharge.
Section 402. Application of Trust Money
All money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for payment of which 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.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default
"Event of Default" wherever used herein means, with respect to any Series
of Securities, 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),
unless it is either inapplicable to a particular Series or it is specifically
deleted or modified in the Authorizing Resolution and/or supplemental indenture
(if any) in respect of the Series, and any other events which may be specified
as Events of Default in the Authorizing Resolution and/or supplemental indenture
(if any) in respect of such Series:
(1) default in the payment of any installment of interest upon any
Security of such Series when it becomes due and payable, and continuance
of such default for a period of 30 days; or
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(2) default in the payment of the principal of (or premium, if any, on)
any Security of such Series at its Maturity; or
(3) default in the deposit of any Sinking Fund installment in respect
of such Series, when and as payable by the terms of Section 1201 hereof;
or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than (a) a covenant or warranty
relating exclusively to another Series of Securities issued hereunder and
(b) a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Securities of all Series Outstanding (or, with respect to any such
covenant or agreement which is not applicable to all Series of Securities,
by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of all Series to which it is applicable) (in each
case voting as a single class), a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) default in the payment of, or the acceleration of the maturity of,
any indebtedness incurred or guaranteed by the Company in aggregate
principal amount in excess of $30,000,000; or
(6) the entry of an order for relief under the United States federal
bankruptcy laws or the entry of any other decree or order by a court
having jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under the United States federal bankruptcy laws or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of
the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company of a voluntary case under the
United States federal bankruptcy laws, or the institution by the Company
of proceedings to be adjudicated a bankrupt or insolvent, or the consent
by it to the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking
reorganization, an arrangement with creditors or an order for relief under
the United States federal bankruptcy laws or any other applicable federal
or state law, or the consent by it to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other official) of the Company or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or, to the
knowledge of the Trustee, the taking of corporate action by the Company in
furtherance of any such action.
Section 502. Acceleration of Maturity; Rescission and Annulment
If any one or more of the Events of Default described in clauses (1), (2),
(3) or (5) of Section 501 with respect to Securities of any Series shall happen,
then, and in each and every such case, during the continuance of any such Event
of Default, either the Trustee, by notice in writing to the Company, or the
Holders of at least 25% in principal amount of such Securities then Outstanding,
by notice in writing to the Company and to the Trustee, may declare the
principal amount (or, if such Securities are Original Issue Discount Securities,
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such portion of the principal amount as may then be payable on acceleration as
provided in the terms thereof) of all such Securities then Outstanding (if not
then due and payable) to be immediately due and payable, and upon any such
declaration the same shall become and be immediately due and payable, anything
in this Indenture or in the Securities contained to the contrary
notwithstanding. If any one or more of the Events of Default described in clause
(4) of Section 501 shall happen, then, and in each and every such case, during
the continuance of any such Event of Default, either the Trustee, by notice in
writing to the Company, or the Holders of at least 25% in principal amount of
the Securities of all Series then Outstanding (or, if such default is not
applicable to all Series of the Securities, the Holders of at least 25% in
principal amount of the Outstanding Securities of all Series to which it is
applicable) (in each case voting as a single class), by notice in writing to the
Company and to the Trustee, may declare the principal amount (or, if the
Securities of any such Series are Original Issue Discount Securities, such
portion of the principal amount as may then be payable on acceleration as
provided in the terms of that Series) of all the Securities (or all the
Securities of such Series, if such default is not applicable to all Series of
the Securities) then Outstanding (if not then due and payable) to be immediately
due and payable, and upon any such declaration the same shall become and be
immediately due and payable, anything in this Indenture or in the Securities
contained to the contrary notwithstanding. If any one or more of the Events of
Default described in clauses (6) or (7) of Section 501 shall happen, then, and
in each and every such case, the principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of the principal amount as may
then be payable on acceleration as provided in the terms thereof) of all the
Securities then Outstanding (if not then due and payable), shall immediately and
automatically become due and payable, without any declaration or other act on
the part of the Trustee or any Holder, anything in this Indenture or in the
Securities contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made with
respect to any Securities and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of such Securities
Outstanding (voting as a single class) by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all such
Securities,
(B) the principal of (and premium, if any, on) such Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon from the respective due dates
thereof at the respective rates borne by such Securities or, in
the case of Original Issue Discount Securities, at rates equal to
the respective Yields to Maturity thereof, to the extent that
payment of such interest is lawful,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest from the respective
due dates thereof at the respective rates borne by such Securities
or, in the case of Original Issue Discount Securities, at rates
equal to the respective Yields to Maturity thereof, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to such Securities, other than
the non-payment of the principal of such Securities which have become due
solely by such acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 503. Collection of Indebtedness and Suits For Enforcement By Trustee
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for the period of grace, if any, provided for with respect to
such payment, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at its Maturity and such default continues for the
period of grace, if any, provided for with respect to such payment,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of all such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, with interest, to
the extent that payment of such interest is lawful, upon the overdue principal
(and premium, if any) and installments of interest from the due date thereof at
the rate borne by such Securities or, in the case of Original Issue Discount
Securities, at a rate equal to the Yield to Maturity thereof, 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 and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to an Series of Securities occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of such Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or its or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount (or, in the case of
Original Issue Discount Securities, such portion of the principal
amount thereof as shall then be provable in bankruptcy as specified
therein) of principal (and premium, if any) 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;
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; or
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(iii)to take any and all other actions authorized under the TIA in order
to have claims of the Holders and the Trustee allowed in any such
proceeding;
and any receiver, liquidator, assignee, trustee, custodian, 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 to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of 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 in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected
Any money collected by the Trustee pursuant to this Article with respect to
the Securities of an Series shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Securities of such Series 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 to the Trustee and its agents
and counsel under Section 607;
SECOND: In case the principal of the Securities in respect of which
moneys have been collected shall not have become and be then due and
payable, to the payment of interest on the Securities of such Series in
default in the order of the maturity of the installments of such interest,
with interest (to the extent that payment of such interest is lawful and
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or Yield
to Maturity (in the case of Original Issue Discount Securities) applicable
to such Securities, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities in respect of which
moneys have been collected shall have become and shall be then due and
payable, to the payment of the whole amount then owing and unpaid upon all
the Securities of such Series for principal and interest, with (to the
extent that payment of such interest is lawful and such interest has been
collected by the Trustee) interest upon the overdue principal, and upon
overdue installments of interest at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities)
applicable to the Securities of such Series; and in case such moneys shall
be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such Series, then to the payment of such principal and
interest, without preference or priority of principal over interest, or of
interest over principal, or of any installment of interest over any other
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installment of interest, or of any Security of such Series over any other
Security of such Series, ratably to the aggregate of such principal and
accrued and unpaid interest.
FOURTH: To the Company.
Section 507. Limitation On Suits
No Holder of any Securities 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) the Trustee shall have received written notice from such Holder of
a continuing Event of Default in respect of such Securities;
(2) the Trustee shall have received a written request from the Holders
of not less than 25% in principal amount of the Outstanding Securities of
the Series in respect of which the Event of Default has occurred to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60 day period by the Holders of a majority in
principal amount of the Outstanding Securities of such Series;
it being understood and intended that no one or more Holders of Securities of
any Series 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 that Series, or to obtain or to
seek to obtain priority or preference over any other Holders of Securities of
that Series or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders of
Securities of such Series.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the absolute and unconditional right to receive payment of
the principal of (and premium, if any) and (subject to Section 307) interest on
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
Section 509. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative
No right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
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addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512. Control By Holders
The Holders of a majority in principal amount of the Outstanding Securities
of all Series (voting as a single class) 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 in respect
of the Securities of any Series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or unduly prejudicial to the rights of Holders of
Securities of all Series not joining in such direction or, in the opinion
of the Trustee, involve the Trustee in personal liability, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults
The Holders of not less than a majority in principal amount of the
Outstanding Securities of all Series (voting as a single class) may on behalf of
the Holders of all the Securities waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking For Costs
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
all Series (or, if the matter in issue does not relate to all Series of
Securities, then the Holders of 10% in principal amount of the Outstanding
Securities of all Series to which such issue relates) (treated as a single
class), or to any suit instituted by any Holder of any Securities for the
enforcement of the payment of the principal of (or premium, if any) or interest
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on any such Security on or after the respective Stated Maturities expressed
therein (or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 516. Exemption From Individual Liability
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer,
director or employee, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers, directors
or employees, as such, of the Company or of any successor corporation, or any of
the foregoing Persons, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director or employee, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issuance of such Securities.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of any mathematical calculations or
other facts stated therein).
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(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Securities
of all Series (voting as a single class) relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults
Within 60 days after the occurrence of any default hereunder in respect of
any Series of Securities, the Trustee shall transmit by mail to all Holders of
the Securities of such Series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security or in the payment of any Sinking Fund installment, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders; and provided,
further, that in the case of any default of the character specified in Section
501(4) no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default.
Section 603. Certain Rights of Trustee
Except as otherwise provided in Section 601:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, security or other paper or document
(whether in its original or facsimile form) believed by it to be genuine
and to have been signed or presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture 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 make a
reasonable examination of the books, records and premises of the Company,
personally or by agent or attorney at the expense of the Company, and shall
incur no liability or additional liability of any kind by reason of such
inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
(i) the Trustee shall not be deemed to have notice of any default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
and
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
Section 604. Not Responsible For Recitals or Issuance of Securities
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
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Section 605. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
Section 606. Money Held In Trust
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
Section 607. Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing from time to time by the Company and the Trustee for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all 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 fully indemnify the Trustee and each predecessor Trustee for,
and to hold it harmless against, any and all loss, damage, claim, liability
or expense, including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Disqualification; Conflicting Interests
The Trustee shall comply with the terms of Section 310(b) of the TIA. There
shall be excluded from the terms of Section 310(b) of the TIA this Indenture and
all series of debt securities issuable hereunder.
Section 609. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
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requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. Neither the Company nor any Affiliate
of the Company shall serve as Trustee hereunder. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 610. Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of any Series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such Series.
(c) The Trustee may be removed at any time with respect to the
Securities of any Series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such Series, delivered to the
Trustee and to the Company. If within 30 days of such removal no successor
trustee has been appointed as successor trustee and accepted such
appointment, the Trustee may petition at the expense of the Company a court
of competent jurisdiction for the appointment of a successor trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee for a Series of Securities shall cease to be eligible
under Section 609 and shall fail to resign after written request therefor
by the Company or by any such Holder of such Securities, 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 Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee. If within 30 days of such
removal or inability to act, no successor trustee has been appointed as
successor trustee and accepted such appointment, the Trustee may petition a
court of competent jurisdiction for the appointment of a successor trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more Series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those Series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such Series and that any time there shall be only one Trustee with respect to
the Securities of any particular Series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any Series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such Series
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delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such Series and supersede
the successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any Series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner 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.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any Series and each appointment of
a successor Trustee with respect to the Securities of any Series by mailing
written notice of such event by first class mail, postage prepaid, to the
Holders of Securities of such Series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such Series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment By Successor
(a) Every successor Trustee appointed hereunder with respect to all
Securities 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 request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 607.
(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, upon payment of its charges, and each successor Trustee with
respect to the Securities of one or more Series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those Series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those Series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any 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, subject
nevertheless to its lien, if any, provided for in Section 607.
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(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office in its capacity
as Authenticating Agent, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section 613. Trustee's Application for Instructions from the Company
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than ten Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than March 15 and September 15 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of the Securities of each Series as of
the preceding March 1 or September 1, respectively, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities of each Series
contained in the most recent list furnished to the Trustee in respect of such
Series as provided in Section 701 and the name and addresses of Holders received
by the Trustee in its capacity as Security Registrar (if so acting). The Trustee
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may destroy any list furnished to it as provided in Section 701 upon receipt of
a new list so furnished.
(b) If three or more Holders of Securities of any Series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish the
Trustee reasonable proof that each such applicant has owned a Security of such
Series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such Series with respect to
their rights under this Indenture or under the Securities and is accompanied by
a copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either
(i) afford such applicants access to the information in respect of such
Series preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such Series whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of such Series whose name and address appear
in the information preserved at the time by the Trustee in accordance with
Section 702(a), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of said Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 702(b),
regardless of the source from which such information was derived, and that
neither the Trustee nor the Company shall be held accountable by reason of
mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports By Trustee
(a) Within 60 days after May 15 of each year commencing with the first such
date after the issuance of the first series of Securities hereunder, the Trustee
shall transmit by mail to all Holders of Securities of each Series, as their
names and addresses appear in the Security Register, a brief report dated as of
such May 15, in accordance with and to the extent required by Section 313 of the
TIA.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
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Securities of such Series are listed, with the Company, and also with the
Commission. The Company will promptly notify the Trustee when the Securities of
any Series are listed on any stock exchange.
Section 704. Reports By Company
The Company will
(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 said Sections, then
it will 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 (delivery of such reports, information and documents to the
Trustee being for informational purposes only and the Trustee's receipt of
such not constituting constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates));
(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 (delivery of such
reports, information and documents to the Trustee being for informational
purposes only and the Trustee's receipt of such not constituting
constructive notice of any information contained therein or determinable
from information contained therein, including the Company's compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates)); and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc., Only On Certain Terms
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or
lease the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States of America or any state thereof or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
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all the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
This Section 801 shall not apply to any merger or consolidation in which
the Company is the surviving corporation.
Section 802. Successor Corporation Substituted
Upon any consolidation or merger, or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made (1) 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 corporation had been named as the Company
herein, and (2) in case of any such conveyance or transfer by the Company, the
Person named as the "Company" in the first paragraph of this instrument or any
successor corporation which shall theretofore have become such in the manner
prescribed in this Article shall be released from its liability under this
Indenture and as obligor on any of the Securities.
Section 803. Evidence to Be Furnished Trustee
The Trustee may receive an Officers' Certificate and an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, conveyance, transfer
or lease, and any such assumption, complies with the provisions of this Article
Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders
Without the consent of any Holders, the Company (when authorized by a Board
Resolution) and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to provide for the issuance and the terms of any particular Series
of Securities not previously outstanding, the rights and obligations of the
Company and the Holders of the Securities of such Series, the form or forms
of the Securities of such Series and such other matters in connection
therewith as the Board of Directors of the Company shall consider
appropriate, including, without limitation, provisions for (a) additional
or different covenants, restrictions or conditions applicable to such
Series, (b) additional or different Events of Default in respect of such
Series, (c) a longer or shorter period of grace and/or notice in respect of
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any provision applicable to such Series than is provided in Section 501,
(d) immediate enforcement of any Event of Default in respect of such Series
or (e) limitations upon the remedies available in respect of any Events of
Default in respect of such Series or upon the rights of the holders of
Securities of such Series to waive any such Event of Default; provided,
that this paragraph (3) shall not be deemed to require the execution of a
supplemental indenture to provide for the issuance of any Series of
Securities unless the same shall be provided for in the Authorizing
Resolution relating thereto, and no supplemental indenture entered into
pursuant to this paragraph shall affect the rights of any Holders of any
Securities then outstanding; or
(4) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more Series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided such other provision shall not
adversely affect the interests of the Holders of the Series of Securities
affected thereby.
Section 902. Supplemental Indentures With Consent of Holders
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of all Series affected thereby (voting as a
single class), by Act of said Holders delivered to the Company and the Trustee,
the Company (when authorized by a Board Resolution) and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of
such Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the
interest thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security
which would be due and payable upon acceleration under Section 502 or
provable in bankruptcy under Section 504, or change the coin or currency in
which any Security or any interest thereon is payable or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1011, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each 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.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity With Trust Indenture Act
Unless the Company shall determine, based on an Opinion of Counsel
delivered to the Trustee, that the same shall not be required, every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of TIA as then in effect.
Section 906. Reference In Securities to Supplemental Indentures
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Authenticating
Agent in exchange for Outstanding Securities of the same Series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest
The Company will duly and punctually pay (or cause to be paid) the
principal of (and premium, if any) and interest on the Securities of each Series
in accordance with the terms of such Securities and this Indenture.
Section 1002. Maintenance of Office or Agency
Except as otherwise provided in the Authorizing Resolution in respect of
any Series, the Company will maintain an office or agency in The Borough of
Manhattan, The City of New York, where Securities may be presented or
surrendered for payment, and will maintain an office or agency in The Borough of
Manhattan, The City of New York, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company initially appoints the Trustee as such agent at its Corporate Trust
Office for said purposes. The Company will give prompt written notice to the
Trustee of any change in the location of such office or agency. If at any time
the Company shall fail to maintain such office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
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notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of such Borough) where the Securities may be
presented or surrendered for any or all of such purposes, and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in such Borough for such purposes.
Section 1003. Money For Security Payments to Be Held In Trust; Appointment of
Paying Agent
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of (and premium, if any) or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal (and premium,
if any) or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act. The Company
initially appoints the Trustee as Paying Agent.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest; 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 direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
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required to make any such repayment, may at the expense of the Company cause to
be published once or mailed to each such holder or both, in a newspaper
published in the English language customarily published on each Business Day and
of general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
Section 1004. Statement As to Default
The Company will deliver to the Trustee, on or before a date not more than
four months after the end of each fiscal year (which on the date hereof ends on
the last Tuesday of March) of the Company ending after the date hereof, a
statement (which shall not be deemed an Officer's Certificate and need not
conform with any of the provisions of Section 102) signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating that in the course of the performance by the signers of
their duties as officers of the Company and based upon a review made under their
supervision of the activities of the Company during such year and of the
Company's performance under this Indenture they would normally obtain knowledge
whether or not the Company is in default in the performance of any covenant or
agreement set forth in the Indenture, stating whether or not they have obtained
knowledge that the Company is in default in the performance of any such covenant
or agreement, and if so, specifying each such default of which the signers have
knowledge and the nature thereof. If the Company shall have designated any
Unrestricted Subsidiaries to be Restricted Subsidiaries, or any Restricted
Subsidiaries to be Unrestricted Subsidiaries, during such fiscal year, such
statement shall so indicate and provide the identities of the Subsidiaries in
question. The Company will notify the Trustee promptly in writing of any change
of its fiscal year.
Section 1005. Corporate Existence
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; 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 that the loss
thereof is not disadvantageous in any material respect to the Holders of the
Securities.
Section 1006. Limitation Upon Liens
(a) The Company will not create, assume, guarantee or suffer to exist, and
will not cause, suffer or permit any Restricted Subsidiary to create, assume,
guarantee or suffer to exist, any indebtedness for borrowed money secured by
pledge of, or mortgage or lien on, any of its Principal Plants, or on any
capital stock of any Restricted Subsidiary (whether such capital stock is now
owned or hereafter acquired) without effectively providing that the Securities
(together with, if the Company shall so determine, any other indebtedness of the
Company then existing or thereafter created ranking equally with the Securities
and any other indebtedness of the Restricted Subsidiary then existing or
thereafter created) shall be secured by the security of such secured
indebtedness equally and ratably therewith, other than
(i) purchase money pledges of, or purchase money mortgages or liens on,
property acquired (including through merger or consolidation) after
the date of execution of this Indenture, so long as such pledges,
mortgages and liens are created not later than 180 days following
acquisition or completion of construction of a Principal Plant to
secure payment of the purchase price or construction cost thereof, or
to secure debt incurred for such purpose, and so long as such pledges,
mortgages and liens shall attach only to the assets so acquired and
improvements,
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(ii) pledges, mortgages or liens existing at the time of acquisition
(including through merger or consolidation) on property acquired after
the date of execution of this Indenture, so long as such pledges,
mortgages and liens shall attach only to the assets so acquired and
improvements thereon,
(iii)pledges of or mortgages or liens on property of a Restricted
Subsidiary existing at the time it becomes a Restricted Subsidiary
(including through acquisition or merger), as long as such pledge,
mortgage or lien is not incurred in contemplation of such Restricted
Subsidiary becoming a Restricted Subsidiary,
(iv) pledges, mortgages or liens to secure all or any part of the cost of
development or construction of any property or assets or improvements
thereon and which shall be released or satisfied within 180 days after
completion of such development or construction; provided, however,
that such pledges, mortgages or liens shall extend solely to the
property altered, repaired or improved,
(v) pledges, mortgages or liens required in connection with the
acquisition, construction or development of additions or extensions to
Principal Plants which shall be financed by obligations described in
Sections 141-145 of the Internal Revenue Code of 1986, as amended, or
by obligations entitled to substantially similar tax benefits under
other legislation or regulations in effect from time to time,
(vi) pledges, mortgages or liens securing indebtedness owing to the Company
or a wholly-owned Restricted Subsidiary by a Restricted Subsidiary,
(vii) pledges, mortgages or liens existing at the date of this Indenture,
(viii) pledges, mortgages or liens on property of a corporation existing at
the time such corporation is merged into or consolidated with the
Company or a Restricted Subsidiary or at the time of a sale, lease or
other disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary,
(ix) pledges, mortgage or liens on property of the Company or a Restricted
Subsidiary in favor of the United States of America or any State
thereof, or any department, agency, instrumentality or political
subdivision thereof, to secure any payments, including advance or
progress payments, pursuant to any contract or statute or to secure
any indebtedness incurred or guaranteed for the purpose of financing
all or any part of the purchase price or the cost of construction of
the property subject to such pledges, mortgages or liens (including,
but not limited to, pledges, mortgages or liens incurred in connection
with pollution control bonds, industrial revenue bonds or similar
financings),
(x) extensions, renewals or replacements of pledges, mortgages or liens
referred to in clauses (i) to (ix), inclusive, above, provided that
the amount of indebtedness secured by such extension, renewal or
replacement shall not exceed the principal amount of indebtedness
being extended, renewed or replaced, nor shall the pledge, mortgage or
lien be extended to any additional Principal Plant,
(xi) as permitted under Subsection (b) of this Section 1006, and
(xii) as permitted by Subsection (d) of this Section 1006.
(b) If the Company or any Restricted Subsidiary shall at any time enter
into a merger or consolidation with another corporation or purchase all or
substantially all of the assets of another corporation, or if the Company shall
sell all or substantially all of its assets to another corporation and if such
other corporation has outstanding indebtedness secured by a mortgage or other
lien which, by reason of an after-acquired property clause or similar provision
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therein contained, would extend, after such merger, consolidation, sale or
purchase, to any Principal Plant owned by the Company or such Restricted
Subsidiary immediately prior to such merger, consolidation, sale or purchase,
the Company or such Restricted Subsidiary, as the case may be, shall in such
event be deemed to have created a mortgage or lien, within the prohibition of
Subsection (a) of this Section 1006, unless (i) such merger or consolidation
involving a Restricted Subsidiary shall constitute a disposition by the Company
of its interest in the Restricted Subsidiary, or (ii) either (A) at or prior to
the effective date of such merger, consolidation, sale or purchase, such
mortgage or lien shall have been released of record or otherwise satisfied to
the extent it would extend to such Principal Plant or (B) prior to such merger,
consolidation, sale or purchase, the Company or such Restricted Subsidiary, as
the case may be, shall have created, as security for the Securities (and, if the
Company shall so determine, as security for any other indebtedness of the
Company then existing or thereafter created ranking equally with the Securities
and any other indebtedness of the Restricted Subsidiary then existing or
thereafter created), a valid lien which, upon completion of said merger,
consolidation, sale or purchase, will rank prior to the lien of such mortgage or
other lien of such other corporation on such Principal Plant.
(c) If pursuant to the provisions of this Section 1006 the Company or any
Restricted Subsidiary shall at any time be obligated to secure the Securities
(together with, if the Company shall so determine, any other indebtedness then
existing or thereafter created ranking equally with the Securities and any other
indebtedness of the Restricted Subsidiary then existing or thereafter created),
the Company covenants and agrees that it will promptly furnish to the Trustee
(i) an Officers' Certificate stating that the applicable covenant of
the Company above set forth in this Section 1006 has been
complied with; and
(ii) an Opinion of Counsel to the effect that such covenant has been
complied with.
(d) Notwithstanding the foregoing provisions of this Section 1006, the
Company and any one or more Restricted Subsidiaries may create, assume,
guarantee or suffer to exist any indebtedness for borrowed money otherwise
subject to the foregoing restrictions and in addition to that permitted by
Subsection (a) or (b) of this Section 1006 (other than pursuant to clause (xii)
of said Subsection (a)), and renew, extend or replace such indebtedness for
money borrowed; provided, that, at the time of such creation, assumption,
renewal, extension or replacement, the aggregate amount of such indebtedness for
money borrowed, when added to the fair market value of property transferred in
sale-leaseback transactions as permitted by Section 1007(c), does not at the
time exceed 5% of Consolidated Total Assets as shown in the Company's audited
consolidated balance sheet contained in the latest annual report to its
shareholders.
Section 1007. Sale-Leaseback Transactions Relating to Principal Plants
(a) Except to the extent permitted under Subsection (c) of this Section
1007, and except for any transaction involving a lease for a temporary period,
not to exceed three years, by the end of which it is intended that the use of
the leased property by the Company or any Restricted Subsidiary will be
discontinued, the Company shall not sell to any Person other than a Restricted
Subsidiary any Principal Plant as an entirety, or any substantial portion
thereof, with the intention of taking back a lease of such property and the
Company will not permit any Restricted Subsidiary to sell to anyone other than
the Company or a Restricted Subsidiary any Principal Plant as an entirety, or
any substantial portion thereof, with the intention of taking back a lease of
such property unless
(i) the net proceeds of such sale (including any purchase money
mortgages received in connection with such sale) are at
least equal to the fair market value (as determined by Board
Resolution) of such property and
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(ii) subject to Subsection (d) of this Section 1007, the Company
shall, within 180 days after the transfer of title to such
property
(a) purchase, and surrender to the Trustee for retirement
as provided in this Section 1007, a principal amount of
Securities equal to the net proceeds derived from such
sale (including the amount of any such purchase money
mortgages), or
(b) repay other Funded Debt of the Company or any
Restricted Subsidiary in an amount equal to such net
proceeds, or
(c) expend an amount equal to such net proceeds for the
expansion, construction or acquisition of a Principal
Plant, or
(iii)effect a combination of such purchases, repayments and plant
expenditures in an amount equal to such net proceeds.
(b) At or prior to the date 180 days after a transfer of title to a
Principal Plant which shall be subject to the requirements of this Section 1007,
the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that the covenant of the Company
in Section 1007(a) has been complied with and setting forth in
detail the manner of such compliance, which certificate shall
contain information as to (A) the amount of Securities
theretofore redeemed and the amount of Securities theretofore
purchased by the Company and cancelled by the Trustee and the
amount of Securities purchased by the Company and then being
surrendered to the Trustee for retirement, (B) the amount thereof
previously credited under Subsection (d) of this Section 1007,
(C) the amount thereof which it then elects to have credited on
its obligation under Subsection (d) of this Section 1007, and (D)
any amount of other indebtedness which the Company has repaid or
will repay and of the expenditures which the Company has made or
will make in compliance with its obligation under Subsection (a)
of this Section 1007,
(ii) a deposit with the Trustee for retirement of the Securities then
being surrendered as set forth in such certificate; and
(iii)an Opinion of Counsel to the effect that such covenant has been
complied with.
(c) Notwithstanding the restriction of Subsection (a) of this Section 1007,
the Company and any one or more Restricted Subsidiaries may transfer property in
sale-leaseback transactions which would otherwise be subject to such restriction
if the aggregate amount of the fair market value of the property so transferred,
when added to the aggregate amount of indebtedness for borrowed money permitted
by Section 1006(d) which shall be outstanding at the time (computed without
duplication of the value of property transferred as provided in this Subsection
(c)), does not at the time exceed 5% of Consolidated Total Assets as shown in
the Company's audited consolidated balance sheet contained in the latest annual
report to its shareholders.
(d) The Company, at its option, shall be entitled to a credit, in respect
of its obligation to purchase and retire Securities under this Section 1007, for
the principal amount of any Securities deposited with the Trustee for the
purpose and also for the principal amount of (i) any Securities theretofore
redeemed at the option of the Company and (ii) any Securities previously
purchased by the Company and cancelled by the Trustee, and in each case not
theretofore applied as a credit under this Subsection (d) or Section 1202.
(e) For purposes of this Section 1007, the amount or the principal amount
of Securities which are Original Issue Discount Securities shall be the
principal amount of said Original Issue Discount Securities that on the date of
the purchase or redemption of such Securities referred to in this Section could
be declared to be due and payable pursuant to Section 502.
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Section 1008. Limitation Upon Funded Debt of Restricted Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary to create, assume
or permit to exist any Funded Debt other than (A) Funded Debt secured by a
mortgage, pledge or lien which is permitted to such Restricted Subsidiary under
the provisions of Section 1006, (B) Funded Debt owed to the Company or any
wholly-owned Restricted Subsidiary, (C) Funded Debt of a corporation existing at
the time it becomes a Restricted Subsidiary, (D) Funded Debt created in
connection with, or with a view to, compliance by such Restricted Subsidiary
with the requirements of any program, law, statute or regulation of any federal,
state or local governmental authority, which is applicable to such Restricted
Subsidiary and which provides financial or tax benefits to such Restricted
Subsidiary which are not available directly to the Company or available directly
to the Company only on terms which the Company determines are not as favorable
as those available to the Restricted Subsidiary and (E) guarantees existing at
the date of this Indenture.
(b) Notwithstanding the provisions of paragraph (a) of this Section 1008,
any Restricted Subsidiary may create, assume or permit to exist any Funded Debt
in addition to that permitted by paragraph (a) of this Section 1008, and renew,
extend or replace such Funded Debt, provided that at the time of such creation,
assumption, renewal, extension or replacement, and after giving effect thereto,
the aggregate amount of such Funded Debt which would otherwise be subject to the
foregoing restriction, together with the aggregate amount of indebtedness for
borrowed money permitted by Subsection (d) of Section 1006 and the aggregate
amount of the fair market value of property transferred in sale-leaseback
transactions as permitted by Subsection (c) of Section 1007 (computed without
duplication of amounts) does not at the time exceed 10% of Consolidated Total
Assets as shown in the Company's audited consolidated balance sheet contained in
the latest annual report to its shareholders.
Section 1009. Appointment to Fill A Vacancy In The Office of Trustee
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee for any Series of Securities, will appoint a Trustee in the manner
provided in Section 610.
Section 1010. Further Instruments and Acts
The Company will, on request of the Trustee, execute and deliver such
further instruments and do such further acts as may reasonably be necessary or
proper to carry out the purposes of this Indenture.
Section 1011. Waiver of Certain Covenants
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 1004 to 1008, inclusive, and any other
covenant or condition set forth in any Authorizing Resolution or supplemental
indenture for the benefit of the Holders of the Securities or any particular
Series of Securities, if the Holders of at least a majority in principal amount
of the Securities at the time Outstanding of all Series which are entitled to
the benefits thereof (voting as a single class) shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant 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 covenant or condition shall remain in full
force and effect.
Section 1012. Calculation of Original Issue Discount
The Company shall file with the Trustee promptly at the end of each
calendar year during which any original issue discount Securities shall be
Outstanding (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Revenue Code of 1986, as amended from time to time.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption
Redeemable Securities may be redeemed otherwise than through the operation
of the Sinking Fund provided for in Article Twelve at the election of the
Company at the times, on the conditions and at the Redemption Prices specified
therein, in (or pursuant to) the Authorizing Resolution relating thereto and in
the supplemental indenture (if any) executed in connection with the issuance of
such Securities, any Redemption Price to be accompanied by accrued interest to
the Redemption Date.
Section 1102. Applicability of Article
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision referred to in Section 1101, shall be
made in accordance with such provision and this Article.
Section 1103. Election to Redeem; Notice to Trustee
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or set forth in an Officers' Certificate which states that
such election has been duly authorized by all requisite corporate action on the
part of the Company. 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
the Series or the several Series to be redeemed. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption
provided in the Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
Section 1104. Selection By Trustee of Securities to Be Redeemed
If less than all the Securities of any Series are to be redeemed, the
particular Securities of such Series to be redeemed shall be selected not more
than 90 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such Series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination of the Series or any integral multiple thereof) of the principal
amount of such Securities of a denomination larger than such minimum
denomination. If the Company shall so specify, Securities held by the Company or
any Subsidiary shall not be included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section 1105. Notice of Redemption
Notice of redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
48
<PAGE>
(2) the Redemption Price,
(3) if less than all Outstanding Securities of the Series are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amount), including Cusip number, of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest thereon shall
cease to accrue on and after said date,
(5) that the redemption is for a Sinking Fund, if such is the case;
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price; and
(7) applicable CUSIP Numbers.
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 of and at the expense of the Company.
Section 1106. Deposit of Redemption Price
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any accrued interest on, all the
Securities or portions thereof which are to be redeemed on that date.
Section 1107. Securities Payable On Redemption Date
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price thereof and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such on
the relevant Regular or Special Record Date according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid or
duly provided for, bear interest from the Redemption Date at the rate borne by
the Security or, in the case of Original Issue Discount Securities, at a rate
equal to the Yield to Maturity thereof.
Section 1108. Securities Redeemed In Part
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute and the Authenticating Agent 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; except that if a Global Security is so surrendered, the Company
shall execute, and the Authenticating Agent shall authenticate, upon Company
49
<PAGE>
Order, and deliver to the Depositary for such Global Security without service
charge, a new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal amount of the Global Security so
surrendered.
ARTICLE TWELVE
SINKING FUND
Section 1201. Sinking Fund Payments
As and for a Sinking Fund for the retirement of Sinking Fund Securities,
the Company will, until all such Securities are paid or payment thereof is duly
provided for, deposit in accordance with Section 1106, at such times and subject
to such terms and conditions as shall be specified in the provisions of such
Securities and the Authorizing Resolution and supplemental indenture (if any)
relating thereto, such amounts in cash as shall be required or permitted under
such provisions in order to redeem Securities on the specified Redemption Dates
at a Redemption Price equal to their principal amounts, less in each such case
the amount of any credit against such payment received by the Company under
Section 1202. Each such Sinking Fund payment shall be applied to the redemption
of Securities on the specified Redemption Date as herein provided.
Section 1202. Satisfaction of Sinking Fund Payments With Securities
The Company (1) may deliver Securities of the same Series (other than any
previously called for redemption or theretofore applied as a credit against a
Sinking Fund payment or as a credit under Section 1007(d)) and (2) may apply as
a credit Securities of the same Series redeemed at the election of the Company
pursuant to Section 1101 or through the operation of the Sinking Fund in any
period in excess of the minimum amount required for such period under Section
1201 or the provisions relating to such Series referred to in Section 1201 and
not theretofore applied as a credit against a Sinking Fund payment or a credit
under Section 1007(d), in each case in satisfaction of all or any part of any
Sinking Fund payment required to be made pursuant to Section 1201. Each such
Security so delivered or applied shall be credited for such purpose by the
Trustee at a Redemption Price equal to its principal amount and the required
amount of such Sinking Fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities For Sinking Fund
If in any year the Company shall elect to redeem in excess of the minimum
principal amount of Securities required to be redeemed pursuant to Section 1201
or to satisfy all or any part of any Sinking Fund payment by delivering or
crediting Securities pursuant to Section 1202, then at least 60 days prior to
the date on which the Sinking Fund payment in question shall be due (or such
shorter period as shall be approved by the Trustee), the Company shall deliver
to the Trustee an Officers' Certificate specifying the amount of the Sinking
Fund payment and the portions thereof which are to be satisfied by payment of
cash, by delivery of Securities or by crediting Securities, and, at least 45
days prior to the Sinking Fund payment date (or such shorter period as shall be
approved by the Trustee), will also deliver to the Trustee the Securities to be
so delivered. Such Officers' Certificate shall also state that the Securities
forming the basis of any such credit do not include any Securities which have
been redeemed through the operation of the Sinking Fund in the minimum amount
required under Section 1201, previously credited against any Sinking Fund
payment or credited in accordance with Section 1007(d). The Trustee shall, upon
the receipt of such Officers' Certificate (or, if it shall not have received
such an Officers' Certificate at least 60 days prior to the Sinking Fund payment
date, then following such 60th day), select the Securities to be redeemed upon
the next Sinking Fund payment date, in the manner specified in Section 1104, 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 1105. Such notice
50
<PAGE>
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1107 and 1108.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Defeasance
Upon the Company's election to have this Section 1301 apply to one or more
Series of Securities, and upon satisfaction of the applicable conditions
specified in Section 1303, the Company shall be discharged from all of its
obligations under such Securities and under this Indenture with respect to such
Securities, except for its obligations under Sections 304, 305, 306, 607, 1002
and 1003 and this Article Thirteen (referred to below as a "defeasance").
Section 1302. Covenant Defeasance
Upon the Company's election to have this Section 1302 apply to one or more
Series of Securities, and upon satisfaction of the applicable conditions
specified in Section 1303, the occurrence of an event specified in Section
501(3) or (4) shall not be deemed to be an Event of Default in respect of such
Securities (referred to below as a "covenant defeasance").
Section 1303. Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of either Section 1301
or Section 1302 to the Securities of any Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (which term, for purposes of this Article, shall
also refer to another trustee satisfying the requirements of Section 609
who shall agree to comply with the applicable provisions of this Article)
in trust for the Holders of such Securities (A) money in an amount, or (B)
U.S. Government Obligations (as defined below) which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the principal of (and premium, if any) and
interest on such Securities on the Stated Maturity thereof in accordance
with this Indenture and such Securities. "U.S. Government Obligations"
means securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged or
(y) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America, the payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian of such U.S. Government
Obligation or of a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to such holder from any amount received by the custodian in respect
of such U.S. Government Obligation.
(2) The Company shall have delivered to the Trustee an Opinion of
Counsel stating that the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance or covenant defeasance and will be subject to Federal income tax
on the same amount, in the same manner and at the same times as would have
51
<PAGE>
been the case if such deposit, defeasance or covenant defeasance had not
occurred.
(3) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that such Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(4) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities shall
have occurred and be continuing on the date of such deposit or, insofar as
any event described in Section 501(5) or (6), at any time prior to the 91st
day after such deposit.
(5) Such deposit, defeasance or discharge shall not result in a
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(6) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such Act or exempt from regulation thereunder.
(7) The Company shall have delivered to the Trustee (i) an Officers'
Certificate setting forth such election under Section 1301 or 1302, as
applicable, and stating that all conditions precedent provided for relating
to such defeasance, discharge or deposit have been complied with, and (ii)
an Opinion of Counsel stating that all conditions precedent provided for
relating to such defeasance, discharge or deposit have been complied with.
Section 1304. Application of Funds
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee pursuant to Section 1303 in respect of one or more Series of
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal and any
premium and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay (in addition to any U.S. Government Obligations
deposited pursuant to Section 1303), 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 1303 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 the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1303 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.
Section 1305. Reinstatement
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1304 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities of such Series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Thirteen until such time as the Trustee or
52
<PAGE>
Paying Agent is permitted to apply all such money in accordance with Section
1304; provided, however, that if the Company makes any payment of principal of
and any premium or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of the
Securities of such Series to receive such payment from the money held by the
Trustee or the Paying Agent.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be as original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
THE EARTHGRAINS COMPANY
By:
-------------------------------------
THE BANK OF NEW YORK
By:
-------------------------------------
53
Exhibit 5
BRYAN CAVE LLP
ONE METROPOLITAN SQUARE
211 N. BROADWAY, SUITE 3600
ST. LOUIS, MISSOURI 63102-2750
(314) 259-2000
FACSIMILE: (314) 259-2020
DENIS P. MCCUSKER INTERNET ADDRESS
direct dial number [email protected]
(314) 259-2455
March 10, 1999
The Earthgrains Company
8400 Maryland Avenue
St. Louis, Missouri 63105
Re: Registration Statement on Form S-3 Relating to
$250,000,000 Principal Amount of Debt Securities
------------------------------------------------
Gentlemen:
The Earthgrains Company (the "Company") proposes to file with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
a Registration Statement on Form S-3 (the "Registration Statement") relating to
the proposed issuance from time to time by the Company of its debt securities
(the "Debt Securities") in aggregate principal amount of up to $250,000,000. The
Debt Securities would be issued from time to time in one or more series (a
"Series") under an Indenture (the "Indenture") between the Company and The Bank
of New York, as Trustee (the Trustee"), the form of which is an exhibit to the
Registration Statement.
To enable us to render the opinion set forth below, we have examined
corporate records of the Company and such other documents and materials as we
have considered relevant, and have made such investigation of matters of law and
of fact as we have considered appropriate.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has full corporate
power to execute and deliver the Debt Securities.
2. The execution and delivery of the Indenture has been duly authorized
by all requisite action on the part of the Company. Upon execution and delivery
of the Indenture, and upon compliance with the procedures specified in the
Indenture relating thereto, the issuance of the Debt Securities of the several
Series will be duly authorized. When the Debt Securities of the several Series
have been so authorized and executed by the Company, authenticated by the
Trustee and delivered against payment therefor, the Debt Securities of such
Series will constitute the valid and binding obligations of the Company,
enforceable against it in accordance with their terms, except as such
enforceability may be limited by bankruptcy and other laws affecting creditors'
rights generally as in effect from time to time, and except that the
availability of certain equitable remedies may be limited by generally
applicable equitable principles.
We consent to the filing of this opinion as an exhibit to the Registration
Statement, and we consent to the use of our name in the Registration Statement
and the related Prospectus.
Very truly yours,
Bryan Cave LLP
Exhibit 12
<TABLE>
<CAPTION>
Computation of The Earthgrains Company Ratio of Earnings to Fixed Charges
(Dollars in millions, except ratios)
For the Forty Weeks Ended For the Years Ended
March 26,
January 5, December 30, March 31, March 25, 1996
1999 1997 1998 1997 (pro forma)
------------- ----------------- ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
Earnings before income taxes 62.7 49.8 62.0 22.7 (39.0)
Capitalized Interest (0.7) (0.5) (0.7) (0.8) (1.0)
------------- ----------------- ------------ ------------ -------------
Total 62.0 49.3 61.3 21.9 (40.0)
============= ================= ============ ============ =============
Fixed Charges
Interest Expense 15.1 4.6 8.2 6.3 7.0
Debt Issuance Expense 0.0 0.0 0.0 0.0 0.5
1/3 of Rent Expense 4.0 3.1 4.3 3.9 4.9
------------- ----------------- ------------ ------------ -------------
Total 19.1 7.7 12.5 10.2 12.4
============= ================= ============ ============ =============
Earnings before income taxes and
Fixed Charges 81.1 57.0 73.8 32.1 (27.6)
============= ================= ============ ============ =============
Ratio of Earnings to Fixed
Charges 4.3x 7.4x 5.9x 3.1x (1)
============= ================= ============ ============ =============
</TABLE>
(1) As a result of the historical loss incurred and incremental pro forma
adjustments to represent Earthgrains as an independent company for this
period, earnings were less than fixed charges for the year ended March 26,
1996. The coverage deficiency was approximately $40.0 million.
We do not show information for periods prior to the year ended March 26,
1996 because information reflecting what our expenses would have been as an
independent company are not available. Prior to the spin-off from
Anheuser-Busch in 1996, Anheuser-Busch provided funds to Earthgrains by
intercompany advances, without interest charges.
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
May 1, 1998, which appears on page 37 of the 1998 Annual Report to Shareholders
of The Earthgrains Company, which is incorporated by reference in The
Earthgrains Company's Annual Report on Form 10-K for the year ended March 31,
1998. We also consent to the reference to us under the heading "Experts" in such
Prospectus.
PricewaterhouseCoopers LLP
St. Louis, Missouri
March 10, 1999
Exhibit 25
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
THE EARTHGRAINS COMPANY
(Exact name of obligor as specified in its charter)
Delaware 36-3201045
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
8400 Maryland Avenue 63105
St. Louis, Missouri (Zip code)
(Address of principal executive offices)
---------------------------
Debt Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
===================================== =======================================
Name Address
===================================== =======================================
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006,
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 3rd day of March, 1999.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
<PAGE>
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
ASSETS Dollar Amounts
in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin. $3,951,273
Interest-bearing balances.......................... 4,134,162
Securities:
Held-to-maturity securities........................ 932,468
Available-for-sale securities...................... 4,279,246
Federal funds sold and Securities purchased under 3,161,626
agreements to resell...............................
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............37,861,802
LESS: Allowance for loan and
lease losses............619,791
LESS: Allocated transfer risk
reserve........................3,572
Loans and leases, net of unearned income, 37,238,439
allowance, and reserve...........................
Trading Assets........................................ 1,551,556
Premises and fixed assets (including capitalized 684,181
leases)............................................
Other real estate owned............................... 10,404
Investments in unconsolidated subsidiaries and 196,032
associated companies...............................
Customers' liability to this bank on acceptances 895,160
outstanding........................................
Intangible assets..................................... 1,127,375
Other assets.......................................... 1,915,742
Total assets.......................................... $60,077,664
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................ $27,020,578
Noninterest-bearing......................11,271,304
Interest-bearing.........................15,749,274
In foreign offices, Edge and Agreement 17,197,743
subsidiaries, and IBFs...........................
Noninterest-bearing.........................103,007
Interest-bearing.........................17,094,736
Federal funds purchased and Securities sold under 1,761,170
agreements to repurchase...........................
Demand notes issued to the U.S.Treasury............... 125,423
Trading liabilities................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less........ 1,903,700
With remaining maturity of more than one year 0
through three years..............................
With remaining maturity of more than three years... 31,639
Bank's liability on acceptances executed and 900,390
outstanding........................................
Subordinated notes and debentures..................... 1,308,000
Other liabilities..................................... 2,708,852
Total liabilities..................................... 54,583,127
EQUITY CAPITAL
Common stock.......................................... 1,135,284
Surplus............................................... 764,443
Undivided profits and capital reserves................ 3,542,168
Net unrealized holding gains (losses) on 82,367
available-for-sale securities......................
Cumulative foreign currency translation adjustments...
( 29,725)
Total equity capital.................................. 5,494,537
Total liabilities and equity capital.................. $60,077,664
- --------------------------------------------------------------------------------
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni Directors
Gerald L. Hassell
Alan R. Griffith
- --------------------------------------------------------------------------------
