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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): August 18, 1999
CORN PRODUCTS INTERNATIONAL, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 1-13397 22-3514823
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
6500 South Archer Road, Bedford Park, Illinois 60501-1933
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (708) 563-2400
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Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
On August 18, 1999, Corn Products International, Inc., a Delaware
corporation (the "Company"), entered into (i) an Underwriting Agreement
dated as of August 18, 1999 among the Company, Lehman Brothers Inc. and
Salomon Smith Barney Inc. and (ii) an Indenture dated as of August 18,
1999 between the Company and The Bank of New York. In addition, on
August 23, 1999 the Company issued $200,000,000 principal amount of its
8.45% Senior Notes due 2009. The Underwriting Agreement, the Indenture
and the Note are attached hereto as Exhibits 1.1, 4.1 and 4.2,
respectively, and incorporated by reference herein.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired:
Not applicable.
(b) Pro forma financial information:
Not applicable.
(c) Exhibits:
1.1 Underwriting Agreement dated as of August 18, 1999 among the Company,
Lehman Brothers Inc. and Salomon Smith Barney, Inc.
4.1 Indenture dated as of August 18, 1999 between the Company and The Bank
of New York.
4.2 8.45% Senior Note due 2009 of the Company.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CORN PRODUCTS INTERNATIONAL, INC.
Date: August 27, 1999 By: Marcia Doane
_________________________________
Name: Marcia Doane
Title: Corporate Secretary
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EXHIBIT INDEX
The following exhibits are filed herewith:
Exhibit No.
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1.1 Underwriting Agreement dated as of August 18, 1999 among the Company,
Lehman Brothers Inc. and Salomon Smith Barney, Inc.
4.1 Indenture dated as of August 18, 1999 between the Company and The Bank
of New York.
4.2 8.45% Senior Note due 2009 of the Company.
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EXHIBIT 1.1
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CORN PRODUCTS INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
$200,000,000
8.45% SENIOR NOTES DUE 2009
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CORN PRODUCTS INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
August 18, 1999
LEHMAN BROTHERS INC.
SALOMON SMITH BARNEY INC.
As Representatives of the several
Underwriters named in Schedule 1
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Corn Products International, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), $200,000,000 principal amount of its 8.45% Senior Notes due
August 15, 2009 (the "Securities"). The Securities are to be issued pursuant to
an Indenture dated the date hereof (the "Indenture") to be entered into between
the Company and The Bank of New York, as trustee, the form of which has been
filed as an exhibit to the Registration Statement (as defined below). This is to
confirm the agreement concerning the purchase of the Securities from the Company
by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-83557) with
respect to the Securities has (i) been prepared by the Company in conformity
with the requirements of the United States Securities Act of 1933, as amended
(the "Securities Act") and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act and the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). Copies of such registration statement have been
delivered by the Company to you as the Representatives. As used in this
Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time. A prospectus supplement relating to the Securities, the
terms of the offering thereof and the other matters set forth therein has been
prepared and will be filed pursuant to Rule 424 under the Securities Act. In
addition, a preliminary prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof, and the other matters set forth
therein also has been
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prepared and filed pursuant to Rule 424 under the Securities Act. Such
prospectus supplement, in the form filed before, on or after the date of this
Agreement pursuant to Rule 424, is referred to in this Agreement as the
"Prospectus Supplement," and any such preliminary prospectus supplement in the
form filed before or after the date of this Agreement pursuant to Rule 424 is
referred to as the "Preliminary Prospectus Supplement." Any prospectus
accompanied by a Preliminary Prospectus Supplement is referred to in this
Agreement, collectively with such Preliminary Prospectus Supplement, as a
"Preliminary Prospectus." "Registration Statement" means such registration
statement, as amended at the Effective Time, including any documents
incorporated by reference therein at such time and all information, if any,
contained in the final prospectus filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations and deemed to be a part of the registration
statement as of the Effective Time pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means the basic prospectus included
therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement. Reference made herein
to any Preliminary Prospectus or to the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act, as of the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any document filed under the United States
Securities Exchange Act of 1934, as amended (the "Exchange Act") after the date
of such Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any annual report of the Company filed with
the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Time that is incorporated by reference in the Registration Statement.
The Commission has not issued any order suspending the effectiveness of the
Registration Statement.
(b) The Registration Statement, on the Effective Date, conformed and
the Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and did not and
will not, as of the applicable effective date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) 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 not misleading; provided,
that no representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon and
in conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein, it being understood that the only such information specifically
provided by the Underwriters is as described in Section 8(e) hereof; and the
Indenture conforms in all material respects to the requirements of the Trust
Indenture Act and the applicable rules and regulations thereunder; provided,
that no representation or warranty is made as to that part of the Registration
Statement which shall constitute the Form T-1 under the Trust Indenture Act.
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(c) 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 the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and, when read together with the other information included in or
incorporated by reference in the Prospectus, 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 not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with Commission,
as the case may be, will, when read together with the other information included
in or incorporated by reference in the Prospectus, conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder 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
not misleading.
(d) The Company and each of its subsidiaries (as defined in Section 15
hereof) have been duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of incorporation,
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires such
qualification, except where the failure to be so incorporated existing or
qualified would not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position, stockholders' equity, results of
operations or business of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect"), and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which they are
engaged; and none of the subsidiaries of the Company, other than those listed on
Annex A hereto, is a "significant subsidiary", as such term is defined in Rule
405 of the Rules and Regulations.
(e) All of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued and outstanding shares of capital stock of
each subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims.
(f) The Indenture has been duly authorized, and when duly executed by
the proper officers of the Company (assuming due execution and delivery by the
Trustee) and delivered by the Company will constitute a valid and binding
agreement of the Company enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) or an implied covenant of good faith and fair
dealing; and the Securities have been duly authorized, and, when duly executed,
authenticated, issued and delivered against payment therefor, will be duly and
validly issued and outstanding, and will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws
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relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing; and the Securities, when issued
and delivered, will conform to the description thereof contained in the
Prospectus.
(g) This Agreement has been duly authorized, validly executed and
delivered by the Company.
(h) The execution, delivery and performance of this Agreement and the
Indenture by the Company and the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the Securities will not
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any of
its subsidiaries or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and except for the
registration of the Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Securities by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution, delivery and
performance of this Agreement or the Indenture by the Company and the
consummation of the transactions contemplated hereby and thereby and the
issuance of the Securities.
(i) Except as set forth on Annex B hereto, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Securities Act (other than a registration statement on Form S-8) with
respect to any securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the
Securities Act.
(j) Otherwise than as set forth or contemplated in the Prospectus,
neither the Company nor any of its subsidiaries has sustained, since the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which, individually or
in the aggregate, could have a Material Adverse Effect; and, since such date,
there has not been any material change in the capital stock or long-term debt of
the Company or any of its subsidiaries (otherwise than as set forth or
contemplated in the Prospectus) or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
consolidated financial position, stockholders' equity, results of operations or
business of the Company and its
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subsidiaries, taken as a whole (a "Material Adverse Change") otherwise than as
set forth or contemplated in the Prospectus.
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included or
incorporated by reference in the Prospectus present fairly in all material
respects the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods indicated, and,
except as otherwise stated therein, have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(l) KPMG, LLP, who have certified certain financial statements of the
Company, whose report appears in the Prospectus or is incorporated by reference
therein and who have delivered the initial letter referred to in Section 7(f)
hereof, are independent public accountants as required by the Securities Act and
the Rules and Regulations during the periods covered by the financial statements
on which they reported contained or incorporated in the Prospectus.
(m) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, could be expected to,
individually or in the aggregate, have a Material Adverse Effect; and to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(n) The conditions for use of Form S-3 by the Company, as set forth in
the General Instructions thereto, have been satisfied.
(o) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the Rules and Regulations.
(p) Neither the Company nor any of its subsidiaries (i) is in violation
of its charter or by-laws, (ii) is in default in any respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject or (iii) is in violation of
any law, ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business except in the case of clauses (ii) and (iii), for those defaults,
violations or failures which could not, individually or in the aggregate, have a
Material Adverse Effect.
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(q) Neither the Company nor any subsidiary is an "investment company"
within the meaning of such term under the United States Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder.
2. Purchase of the Securities by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the Underwriters,
severally and not jointly, and each of the Underwriters, severally and not
jointly, agrees to purchase the aggregate principal amount of the Securities set
forth opposite such Underwriter's name in Schedule 1 hereto.
3. Offering of Securities by the Underwriters. Upon authorization by
the Representatives of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth
in the Prospectus.
4. Delivery of and Payment for the Securities. Delivery of and payment
for the Securities shall be made at the office of Sidley & Austin at 10:00 A.M.,
Chicago time, on the fourth full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representatives and the Company. This date and time are sometimes
referred to as the "Delivery Date." Unless otherwise provided, on the Delivery
Date, the Company shall deliver or cause to be delivered certificates
representing the Securities to the Representatives for the account of each
Underwriter against payment to or upon the order of the Company of the purchase
price by wire transfer in immediately available funds.
If so provided, the Securities will be represented by one or more
definitive global Securities in book-entry form that will be deposited by or on
behalf of the Company with The Depositary Trust Company or its designated
custodian. In such case, (i) delivery of the Securities will be made to the
Representatives for the respective accounts of the several Underwriters by
causing The Depositary Trust Company to credit the Securities to the account of
the Representatives at The Depositary Trust Company, and (ii) the Company will
cause the certificates representing the Securities to be made available to the
Representatives for inspection not later than 2:00 p.m. New York City time, on
the business day prior to the Closing Date at the office of The Depositary Trust
Company or its designated custodian. The Securities shall be registered in such
names and in such denominations as the Representatives shall request in writing
not less than two full business days prior to the Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act; to make no further
amendment or any supplement to the Registration Statement or to the Prospectus
prior to the last Delivery Date except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and to
furnish the Representatives with copies thereof; to file promptly all reports
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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 subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Securities; to advise the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal.
(b) To furnish promptly to the Representatives and to counsel for the
Underwriters a conformed copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits other
than this Agreement and the Indenture, (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus and (iii) any document
incorporated by reference in the Prospectus (excluding exhibits thereto); and,
if the delivery of a prospectus is required at any time after the Effective Time
in connection with the offering or sale of the Securities or any other
securities relating thereto and if at such time any events shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Representatives and, upon
request, to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or effect
such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Representatives, be required by
the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any Prospectus pursuant to Rule
424 of the Rules and Regulations, to furnish a
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copy thereof to the Representatives and counsel for the Underwriters and obtain
the consent of the Representatives to the filing.
(f) As soon as practicable after the date hereof (it being understood
that the Company shall have until at least 410 days after the end of the
Company's current fiscal quarter), to make generally available to the Company's
security holders and to deliver to the Representatives an earnings statement of
the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158).
(g) For a period of three years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by the Company
to its shareholders and all public reports and all reports and financial
statements furnished by the Company to the New York Stock Exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder.
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Securities; provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction, or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
(i) To apply the net proceeds from the sale of the Securities being
sold by the Company as set forth in the Prospectus.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus or
any document incorporated by reference therein, all as provided in this
Agreement; (d) the costs of producing and distributing this Agreement and any
other related documents in connection with the offering, purchase, sale and
delivery of the Securities; (e) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of sale of the Securities, if necessary; (f) any applicable listing or
other fees; (g) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 5(h) and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters) (not to exceed $5,000); (h)
any fees charged by securities rating services for rating the Securities; and
(i) all other reasonable costs and expenses incident to the performance of the
obligations of the Company; provided that, except as provided in this Section 6
and in Section 11, the Underwriters shall pay their own costs and expenses,
including the costs and
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expenses of their counsel, any transfer taxes on the Securities which they may
sell and the expenses of advertising any offering of the Securities made by the
Underwriters.
7. Conditions of Underwriters' Obligations. The respective obligations
of the Underwriters hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company contained
herein, to the performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus (as amended or supplemented) shall have been timely
filed with the Commission pursuant to Rule 424(b) under the Securities Act in
accordance with Section 5(a); no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to such Delivery Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of Winston & Strawn is material or omits to
state a fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Indenture, the
Securities, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to Winston & Strawn,
and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
(d) Sidley & Austin and Marcia Doane, Esq. shall each have furnished to
the Representatives their written opinion, as counsel and General Counsel to the
Company, respectively, addressed to the Underwriters and dated such Delivery
Date, in the forms attached hereto as Exhibits 7(d)(A) and 7(d)(B),
respectively.
(e) The Representatives shall have received from Winston & Strawn,
counsel for the Underwriters, such opinion or opinions, dated such Delivery
Date, with respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(f) At the time of execution of this Agreement, the Representatives
shall have received from KPMG, LLP a letter, in form and substance satisfactory
to the Representatives, addressed to the Underwriters and dated the date hereof
(i) confirming that they are independent public accountants within the meaning
of the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
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S-X of the Commission, (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and findings of
such firm with respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(g) With respect to the letter of KPMG, LLP referred to in the
preceding paragraph and delivered to the Representatives concurrently with the
execution of this Agreement (the "initial letter"), the Company shall have
furnished to the Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii) confirming
in all material respects the conclusions and findings set forth in the initial
letter.
(h) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements of the Company
in Section 1 are true and correct as of such Delivery Date and the
Company has complied with all its agreements contained herein;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the respective
signers of the certificate, are contemplated under the Securities Act;
and
(iii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading and, as of the date of such certificate, the Prospectus does
not include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) since the Effective
Date no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the Prospectus
which has not been set forth in such a supplement or amendment.
10
<PAGE> 12
(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or (ii)
since such date there shall not have been any material change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
Material Adverse Change, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being delivered on such Delivery Date on the terms
and in the manner contemplated in the Prospectus or in a supplement thereto.
(j) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(k) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on the
New York Stock Exchange, shall have been suspended or minimum prices shall have
been established on the New York Stock Exchange, by the Commission, by the New
York Stock Exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared by
Federal or state authorities, (iii) the United States shall have become engaged
in hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or delivery of
the Securities being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus or in a supplement thereto.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter, its
officers and employees and each person, if any, who "controls" any Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Securities), to which that Underwriter,
officer,
11
<PAGE> 13
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto, (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Securities or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company shall not be
liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct), and shall reimburse each Underwriter and each
such officer, employee or controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein which
information consists solely of the information specified in Section 8(e) hereof.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any officer, employee or
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors and
each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Company through the Representatives by or on
behalf of that Underwriter specifically for inclusion therein, which information
12
<PAGE> 14
consists solely of the information specified in Section 8(e) hereof and shall
reimburse the Company and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; and provided further, that as to any
Preliminary Prospectus or supplement thereto this indemnity agreement shall not
inure to the benefit of any Underwriter or any employee of any Underwriter or
any person controlling that Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of the Prospectus,
as the same may be amended or supplemented, to that person within the time
required by the Securities Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in such Preliminary Prospectus or supplement thereto was corrected in the
Prospectus. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriters
against the Company under this Section 8 if there are legal defenses available
to them which are different from or in addition to those available to such
indemnifying party (it being understood that the Company shall not, in
connection with any one such claim or action or separate but substantially
similar or related claims or actions in the same allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (other than local counsel which shall be engaged only for purposes of
appearing with such counsel in such jurisdictions in which such firm of
attorneys is not licensed to practice)), and in that event the fees and expenses
of such separate counsel shall be paid by the Company. No indemnifying party
shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of
13
<PAGE> 15
which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other 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 with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, 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 with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities purchased under this Agreement (before deducting
expenses) received by the Company on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
shares of the Securities purchased under this Agreement, on the other hand, bear
to the total gross proceeds from the offering of the shares of the Securities
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative
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 contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section 8
shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall 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 was offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission.
14
<PAGE> 16
No person guilty of fraudulent misrepresentation (within the meaning of Section
8(e) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 8(d) are several in
proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges
that the statements with respect to the public offering of the Securities by the
Underwriters set forth under the caption "Underwriting" in the Prospectus are
correct and constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
9. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase on such Delivery Date
in the respective proportions which the number of shares of the Securities set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total number of shares of the Securities set opposite the
names of all the remaining non-defaulting Underwriters in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Securities on such Delivery Date if the
aggregate amount of the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 10% of the
aggregate amount of the Securities to be purchased on such Delivery Date, and
any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the aggregate amount of the Securities which it agreed to purchase
on such Delivery Date pursuant to the terms of Section 2. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Securities to be purchased on such Delivery
Date. If the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except that the Company will continue
to be liable for the payment of expenses to the extent set forth in Sections 6
and 11. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context requires otherwise, any party not
listed in Schedule 1 hereto who, pursuant to this Section 9, purchases
Securities which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If other
underwriters are obligated or agree to purchase the Securities of a defaulting
or withdrawing Underwriter, either the Representatives or the Company may
postpone the Delivery Date for up to seven full business days in order to effect
any changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
15
<PAGE> 17
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
prior to delivery of and payment for the Securities if, prior to that time, any
of the events described in Sections 7(i), 7(j) or 7(k), shall have occurred or
if the Underwriters shall decline to purchase the Securities for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Company shall
fail to tender the Securities for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Securities, and upon demand the Company shall pay the full amount thereof to
the Representatives. If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to Lehman Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax:
212-526-6588), with a copy, in the case of any notice pursuant to Section
8(c), to the Director of Litigation, Office of the General Counsel, Lehman
Brothers Inc., 3 World Financial Center, 10th Floor, New York, NY 10285;
and
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Marcia E. Doane, Esq. Fax: (708)
563-6592.
provided, however, that any notice to an Underwriter pursuant to Section 8(b) or
8(c) shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by Lehman Brothers Inc. on behalf of the
Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities
16
<PAGE> 18
Act and (b) the indemnity agreement of the Underwriters contained in Section
8(b) of this Agreement shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties
and agreements of the Company and the Underwriters contained in this Agreement
or made by or on behalf on them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Securities and shall remain in full
force and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to the
conflict of laws principles thereof.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17
<PAGE> 19
If the foregoing correctly sets forth the agreement between the Company
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
CORN PRODUCTS INTERNATIONAL, INC.
By /s/ James W. Ripley
------------------------------------
Name: James W. Ripley
Title: Vice President - Finance and
Chief Financial Officer
Accepted:
LEHMAN BROTHERS INC.
SALOMON SMITH BARNEY INC.
By: LEHMAN BROTHERS INC.
By: /s/ James W. Merli
-----------------------------
Name: James W. Merli
Title: Managing Director
<PAGE> 20
SCHEDULE 1
<TABLE>
<CAPTION>
Purchase Price
Aggregate Principal (after giving effect to
Underwriters Amount Underwriters' discount)
- ------------ ------ -----------------------
<S> <C> <C>
Lehman Brothers Inc..................................... $100,000,000 $ 99,194,000
Salomon Smith Barney Inc................................ $100,000,000 $ 99,194,000
------------ ------------
Total.......................................... $200,000,000 $198,388,000
============ ============
</TABLE>
<PAGE> 1
EXHIBIT 4.1
================================================================================
CORN PRODUCTS INTERNATIONAL, INC.
AND
THE BANK OF NEW YORK,
AS TRUSTEE
----------------------
INDENTURE
DATED AS OF AUGUST 18, 1999
---------------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE ONE
Definitions
Section 1.01. Certain Terms Defined..............................................................................1
Section 1.02. Other Definitions..................................................................................9
Section 1.03. Incorporation by Reference of Trust Indenture Act..................................................9
ARTICLE TWO
Issue, Description, Execution, Registration, Registration of Transfer and Exchange of Securities
Section 2.01. Amount Unlimited; Establishment of Series.........................................................10
Section 2.02. Form of Securities and Trustee's Certificate of Authentication....................................12
Section 2.03. Global Securities.................................................................................13
Section 2.04. Denomination, Authentication and Dating of Securities.............................................15
Section 2.05. Execution of Securities...........................................................................17
Section 2.06. Registration of Transfer and Exchange.............................................................17
Section 2.07. Temporary Securities..............................................................................18
Section 2.08. Mutilated, Destroyed, Lost or Stolen Securities...................................................19
Section 2.09. Cancellation of Surrendered Securities............................................................20
Section 2.10. Provisions of Indenture and Securities for the Sole Benefit of the Parties
and the Holders................................................................................20
Section 2.11. Computation of Interest...........................................................................20
Section 2.12. Authenticating Agents.............................................................................20
Section 2.13. Compliance with Certain Laws and Regulations......................................................21
Section 2.14. Medium-Term Securities............................................................................22
Section 2.15. CUSIP Numbers.....................................................................................22
ARTICLE THREE
Redemption of Securities - Sinking Fund
Section 3.01. Applicability of Article..........................................................................22
Section 3.02. Notice of Redemption; Selection of Securities.....................................................23
Section 3.03. When Securities Called for Redemption Become Due and Payable......................................24
Section 3.04. Sinking Fund......................................................................................24
Section 3.05. Use of Acquired Securities to Satisfy Sinking Fund Obligation.....................................25
Section 3.06. Effect of Failure to Deliver Officers' Certificate or Securities..................................26
Section 3.07. Manner of Redeeming Securities....................................................................26
Section 3.08. Sinking Fund Moneys to Be Held as Security During
Continuance of Event of Default; Exceptions....................................................26
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE FOUR
Particular Covenants of the Company
Section 4.01. Existence.........................................................................................27
Section 4.02. Payments of Principal of (and Premium, if any) and Interest,
if any, on Securities..........................................................................27
Section 4.03. Maintenance of Offices or Agencies for Registration of Transfer,
Exchange and Payment of Securities.............................................................27
Section 4.04. Appointment to Fill a Vacancy in the Office of Trustee............................................28
Section 4.05. Duties and Rights of Paying Agents; Company as Paying Agent.......................................28
Section 4.06. Limitation on Secured Debt........................................................................29
Section 4.07. Limitation on Sale and Leaseback Transactions.....................................................29
Section 4.08. Annual Certificate of Compliance..................................................................31
Section 4.09. Further Instruments and Acts......................................................................31
Section 4.10. Calculation of Original Issue Discount............................................................31
ARTICLE FIVE
Holders' Lists and Reports by the Company and the Trustee
Section 5.01. Company to Furnish Trustee Information as to Names
and Addresses of Holders.......................................................................32
Section 5.02. Preservation of Information; Communications to Holders............................................32
Section 5.03. Reports by Company................................................................................33
Section 5.04. Reports by Trustee................................................................................34
ARTICLE SIX
Remedies
Section 6.01. Events of Default.................................................................................35
Section 6.02. Acceleration of Maturity; Rescission and Annulment................................................36
Section 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee...................................37
Section 6.04. Trustee May File Proofs of Claim..................................................................38
Section 6.05. Trustee May Enforce Claims Without Possession of Securities.......................................39
Section 6.06. Application of Moneys Collected...................................................................39
Section 6.07. Limitation on Suits...............................................................................40
Section 6.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.........................41
Section 6.09. Restoration of Rights and Remedies................................................................41
Section 6.10. Rights and Remedies Cumulative....................................................................41
Section 6.11. Delay or Omission Not Waiver......................................................................42
Section 6.12. Control by Holders................................................................................42
Section 6.13. Waiver of Past Defaults...........................................................................42
Section 6.14. Undertaking for Costs.............................................................................43
Section 6.15. Waiver of Stay or Extension Laws..................................................................43
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE SEVEN
The Trustee
Section 7.01. Certain Duties and Responsibilities...............................................................43
Section 7.02. Notice of Defaults. .............................................................................44
Section 7.03. Certain Rights of Trustee.........................................................................45
Section 7.04. Trustee Not Liable for Recitals in Indenture or in Securities.....................................46
Section 7.05. Trustee, Paying Agent or Security Registrar May Own Securities....................................47
Section 7.06. Moneys Received by Trustee to Be Held in Trust....................................................47
Section 7.07. Compensation and Reimbursement....................................................................47
Section 7.08. Right of Trustee to Rely on an Officers' Certificate Where
No Other Evidence Specifically Prescribed......................................................48
Section 7.09. Disqualification; Conflicting Interests...........................................................48
Section 7.10. Corporate Trustee Required; Requirements for Eligibility..........................................48
Section 7.11. Resignation and Removal of Trustee; Appointment of Successor......................................48
Section 7.12. Acceptance by Successor to Trustee................................................................50
Section 7.13. Successor to Trustee by Merger, Consolidation or Succession to Business...........................51
Section 7.14. Preferential Collection of Claims Against Company.................................................52
Section 7.15. Appointment of Additional and Separate Trustees...................................................52
ARTICLE EIGHT
Concerning the Holders
Section 8.01. Evidence of Action by Holders.....................................................................54
Section 8.02. Proof of Execution of Instruments and of Holding of Securities....................................55
Section 8.03. Who May Be Deemed Owner of Securities.............................................................55
Section 8.04. Securities Owned by Company or Controlled or Controlling Companies
Disregarded for Certain Purposes..................................................................56
Section 8.05. Instruments Executed by Holders Bind Future Holders...............................................56
ARTICLE NINE
Holders' Meetings and Consents
Section 9.01. Purposes for Which Meeting May Be Called..........................................................57
Section 9.02. Call of Meeting by Trustee........................................................................57
Section 9.03. Call of Meetings by Company or Holders............................................................57
Section 9.04. Who May Attend and Vote at Meetings...............................................................58
Section 9.05. Regulations May Be Made by Trustee................................................................58
Section 9.06. Manner of Voting at Meetings and Record to Be Kept................................................59
Section 9.07. Written Consent in Lieu of Meetings...............................................................59
Section 9.08. No Delay of Rights by Meeting.....................................................................59
</TABLE>
iii
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<TABLE>
<S> <C>
ARTICLE TEN
Supplemental Indentures
Section 10.01. Purposes for Which Supplemental Indentures May Be Entered
into Without Consent of Holders................................................................59
Section 10.02. Modification of Indenture with Consent of Holders of a
Majority in Principal Amount of Securities.....................................................61
Section 10.03. Effect of Supplemental Indentures................................................................62
Section 10.04. Securities May Bear Notation of Changes by Supplemental Indentures...............................63
ARTICLE ELEVEN
Consolidation, Merger, Sale, Conveyance or Lease
Section 11.01. Company May Consolidate, etc., on Certain Terms..................................................63
Section 11.02. Successor Corporation to Be Substituted..........................................................64
Section 11.03. Opinion of Counsel to Be Given Trustee...........................................................64
ARTICLE TWELVE
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 12.01. Satisfaction and Discharge of Indenture..........................................................64
Section 12.02. Defeasance and Discharge of Securities or Certain Obligations....................................65
Section 12.03. Application by Trustee of Funds Deposited for Payment of Securities..............................68
Section 12.04. Repayment of Moneys Held by Paying Agent.........................................................68
Section 12.05. Repayment of Moneys Held by Trustee..............................................................69
ARTICLE THIRTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 13.01. Incorporators, Stockholders, Officers, Directors and Employees of
Company Exempt from Individual Liability.......................................................69
ARTICLE FOURTEEN
Miscellaneous Provisions
Section 14.01. Successors and Assigns of Company Bound by Indenture.............................................70
Section 14.02. Acts of Board, Committee or Officer of Successor Corporation Valid...............................70
Section 14.03. Required Notices or Demands......................................................................70
</TABLE>
iv
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<TABLE>
<S> <C>
Section 14.04. Indenture and Securities to Be Construed in Accordance with the
Laws of the State of New York..................................................................70
Section 14.05. Officers' Certificate and Opinion of Counsel to Be Furnished upon
Application or Request by the Company..........................................................71
Section 14.06. Payments Due on Non-Business Days................................................................71
Section 14.07. Moneys of Different Currencies to Be Segregated..................................................71
Section 14.08. Payment to Be in Proper Currency.................................................................71
Section 14.09. Provisions Required by Trust Indenture Act to Control............................................72
Section 14.10. Indenture May Be Executed in Counterparts........................................................72
Section 14.11. Separability Clause..............................................................................72
</TABLE>
v
<PAGE> 7
INDENTURE, dated as of the ____ day of ____, 1999 between Corn
Products International, Inc., a corporation incorporated under the laws of
Delaware (the "Company"), and The Bank of New York, a New York banking
corporation (the "Trustee").
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes and other evidences of indebtedness (hereinafter
referred to as the "Securities"), to be issued in one or more series in an
unlimited amount as provided in this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture
a valid agreement in accordance with its terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, the Company and the Trustee mutually
covenant and agree, for the equal and proportionate benefit of the respective
Holders from time to time of the Securities, and of the Coupons, if any,
appertaining thereto, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. CERTAIN TERMS DEFINED. The terms defined in this
Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01:
"Authorized Newspaper" shall mean a newspaper printed in the
English language and customarily published at least once a day on each business
day in each calendar week and of general circulation in the City of New York,
whether or not such newspaper is published on Saturdays, Sundays and legal
holidays. Whenever, under the provisions of this Indenture, two or more
publications of a notice or other communication are required or permitted, such
publications may be in the same or different Authorized Newspapers. If, because
of temporary or permanent suspension of publication or general circulation of
any newspaper or for any other reason, it is impossible or impracticable to
publish any notices required by this Indenture in the manner herein provided,
then such publication in lieu thereof or such other notice as shall be made with
the approval of the Trustee shall constitute a sufficient publication of such
notice.
"Bankruptcy Law" shall mean Title 11 of the United States Code
or any similar federal or state law for the relief of debtors.
"Board of Directors" when used with reference to the Company,
shall mean the Board of Directors of the Company or any committee of such Board
of Directors duly authorized to act on its behalf with respect to any particular
matter.
<PAGE> 8
"Business Day" shall mean any day other than a Saturday or
Sunday and other than a day on which banking institutions in New York, New York
or any other jurisdiction in which the Paying Agent is being utilized, are
authorized or obligated by law or executive order to close or, with reference to
any Securities of any series, as set forth in the instrument establishing the
series and in the Securities of such series.
"Capitalized Rent" shall mean the present value (discounted
semi-annually at a discount rate equal to the weighted average rate of interest
borne by the Notes then Outstanding) of the total net amount of rent payable for
the remaining term of any lease of property by the Company or a Tax Consolidated
Subsidiary (including any period for which such lease has been extended);
provided, however, that no such rental obligation shall be deemed to be
Capitalized Rent unless the lease resulted from a Sale and Leaseback
Transaction. The total net amount of rent payable under any lease for any period
shall be the total amount of the rent payable by the lessee with respect to such
period but shall not include amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates, sewer rates
and similar charges.
"Capital Stock" means and includes any and all shares,
interests, participations or other equivalents (however designated) of ownership
in a corporation or other Person.
"Certified Board Resolution" shall mean one or more
resolutions certified by the Secretary or any Assistant Secretary of the Company
to have been duly adopted or consented to by the Board of Directors and to be in
full force and effect on the date of such certification.
"Company" shall mean Corn Products International, Inc. and,
subject to the provisions of Article Eleven, shall mean its successors and
assigns from time to time hereafter.
"Company Direction" or a "Company Request" shall mean a
written direction or request of the Company, signed by its (i) Chairman,
President, Chief Executive Officer, or any Vice President and (ii) by its
Secretary, any Assistant Secretary, its Treasurer, or any Assistant Treasurer.
"Consolidated Net Tangible Assets" shall mean the aggregate
amount of all assets (less depreciation, valuation and other reserves and items
deductible therefrom under generally accepted accounting principles) after
deducting therefrom (a) all goodwill, patents, trademarks and other like
intangibles and (b) all current liabilities (excluding any thereof which are by
their terms extendible or renewable at the option of the obligor for a time more
than twelve months after the time as of which the amount thereof is being
computed or which are backed by any instruments or agreements which by their
terms are extendible or renewable at the option of the obligor for a time more
than twelve months after the time as of which the amount thereof is being
computed, including without limitation commercial paper obligations which may be
repaid out of borrowings under a credit facility), all as set forth on the most
recent quarterly balance sheet of
2
<PAGE> 9
the Company and its Tax Consolidated Subsidiaries and computed in accordance
with generally accepted accounting principles.
"Corporate Trust Office" or other similar term, shall mean the
principal corporate trust office of the Trustee, at which at any particular time
its corporate trust business shall be administered, or, if no such office is
maintained, such other office of the Trustee as shall be designated. The
Corporate Trust Office on the date hereof is located at 101 Barclay Street,
Floor 21 West, New York, New York 10286.
"Coupon" shall mean any interest coupon appertaining to a
Security.
"Depositary" shall mean, with respect to the 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 2.01 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 the Depositary with respect to the
Securities of that series.
"Dollars and $" shall mean lawful money of the United States
of America.
"Event of Default" shall mean any event specified in Section
6.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Funded Debt" shall mean any Indebtedness maturing by its
terms more than one year from its date of issuance (notwithstanding that any
portion of such Indebtedness is included in current liabilities).
"Global Security" shall mean a Security evidencing all or part
of a series of Securities issued to, and registered in the name of, the
Depositary for such series (or its nominee) in accordance with Section 2.03.
"Government Obligations" with respect to any series of
Securities shall mean (i) direct noncallable obligations of the government which
issued the currency in which the Securities of that series are denominated or
(ii) noncallable obligations the payment of the principal of and interest on
which is fully guaranteed by such government and which, in either case, are full
faith and credit obligations of such government.
"Holder", with respect to a registered Security, shall mean
any person in whose name such Security shall be registered on the Security
Register, and, with respect to an unregistered Security, shall mean the bearer
thereof or any Coupon appertaining thereto.
3
<PAGE> 10
"Indebtedness" shall mean with respect to any Person (i) any
liability of such Person (a) for borrowed money, or (b) evidenced by a bond,
note, debenture or similar instrument (including purchase money obligations but
excluding trade payables), or (c) for the payment of money relating to a lease
that is required to be classified as a capitalized lease obligation in
accordance with generally accepted accounting principles; (ii) any liability of
others described in the preceding clause (i) that such Person has guaranteed,
that is recourse to such Person or that is otherwise its legal liability; and
(iii) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (i) and (ii)
above.
"Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, and shall include the terms and forms of particular series of
Securities established as contemplated hereunder.
"Interest Payment Date" shall mean the date on which an
installment of interest on any series of Securities shall become due and
payable, as therein or herein provided.
"Lien" shall mean any mortgage, pledge, security interest,
lien, charge or other encumbrance.
"Maturity" when used with respect to any Security shall mean
the date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Minority Interest" shall mean any shares of stock of any
class of a Subsidiary (other than directors' qualifying shares) that are not
owned by the Company or any Subsidiary.
"Officers' Certificate" shall mean a certificate of the
Company delivered to the Trustee and signed (i) by its Chairman, President,
Chief Executive Officer, or any Vice President and (ii) by its Secretary, any
Assistant Secretary, its Treasurer or any Assistant Treasurer. Each such
certificate shall include (except as otherwise provided in this Indenture) the
statements provided for in Section 14.05.
"Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of, or counsel to, the Company. Each
such opinion shall include (except as otherwise provided in this Indenture) the
statements provided for in Section 14.05.
"Original Issue Discount Security" shall mean any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Stated Maturity thereof
pursuant to Section 6.02.
"Outstanding" when used with reference to Securities of any
series, subject to the provisions of Section 8.04, shall mean, as of any
particular time, all Securities of such series authenticated by the Trustee and
delivered under this Indenture, except:
4
<PAGE> 11
(a) Securities of such series theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities of such series paid pursuant to Section 2.09 or
Securities of such series or portions thereof for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying agent);
provided that, if such Securities or portions thereof are to be
redeemed, notice of such redemption shall have been given as provided
in Article Three or provision satisfactory to the Trustee shall have
been made for giving such notice;
(c) Securities of such series in lieu of or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to this Indenture, other than Securities as to which a
Responsible Officer of the Trustee receives proof satisfactory to it
that such Security is held by a bona fide purchaser in whose hands such
Security is a legal, valid and binding obligation of the Company; and
(d) Securities which have been defaced pursuant to Section
12.02;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Securities of any or all series then Outstanding have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security which
shall be deemed to be Outstanding for such purposes shall be the portion of the
principal amount thereof that could be declared to be due and payable upon the
occurrence of an Event of Default and the continuation thereof pursuant to the
terms of such Original Issue Discount Security as of such time.
"Permitted Encumbrances" shall mean
(a) Liens on property existing at the time of acquisition of
such property by the Company or a Tax Consolidated Subsidiary, or Liens
to secure the payment of all or any part of the purchase price of
property acquired or constructed by the Company or a Tax Consolidated
Subsidiary (including any improvements to existing property) created at
the time of or within 270 days following the acquisition of such
property by the Company or such Tax Consolidated Subsidiary, or Liens
to secure any Secured Debt incurred by the Company or a Tax
Consolidated Subsidiary prior to, at the time of or within 270 days
following the acquisition of such property, which Secured Debt is
incurred for the purpose of financing all or any part of the purchase
price thereof; provided, however, that in the case of any such
acquisition, the Lien shall not apply to any property theretofore owned
by the Company or such Tax Consolidated Subsidiary (including property
transferred by the Company or such Tax Consolidated
5
<PAGE> 12
Subsidiary to any Subsidiary of the Company in contemplation of or in
connection with the creation of such Lien) or to any property of the
Company or a Tax Consolidated Subsidiary other than the property so
acquired (other than, in the case of construction or improvement, any
theretofore unimproved real property or portion thereof on which the
property so constructed, or the improvement, is located);
(b) Liens on property of a Person (i) existing at the time
such Person is merged into or consolidated with the Company or a Tax
Consolidated Subsidiary or at the time of a sale, lease or other
disposition of the properties of a Person as an entirety or
substantially as an entirety to the Company or a Tax Consolidated
Subsidiary, (ii) resulting from such merger, consolidation, sale, lease
or disposition by virtue of any Lien on property granted by the Company
or a Tax Consolidated Subsidiary prior to such merger, consolidation,
sale, lease or disposition (and not in contemplation thereof or in
connection therewith) which applies to after-acquired property of the
Company or such Tax Consolidated Subsidiary or (iii) resulting from
such merger, consolidation, sale, lease or disposition pursuant to a
Lien or contractual provision granted or entered into by such Person
prior to such merger, consolidation, sale, lease or disposition (and
not at the request of the Company or such Tax Consolidated Subsidiary);
provided, however, that any such Lien referred to in clause (i) shall
not apply to any property of the Company or such Tax Consolidated
Subsidiary other than the property subject thereto at the time such
Person or properties were acquired and any such Lien referred to in
clause (ii) or (iii) shall not apply to any property of the Company or
such Tax Consolidated Subsidiary other than the property so acquired;
(c) Liens existing on the date of this Indenture;
(d) Liens in favor of a government or governmental entity to
secure partial progress, advance or other payments, or other
obligations, pursuant to any contract or statute or to secure any
Indebtedness incurred for the purpose of financing all or any part of
the cost of acquiring, constructing or improving the property subject
to such Liens (including, without limitation, Liens incurred in
connection with pollution control, industrial revenue, private activity
bond or similar financing);
(e) Liens arising by reason of deposits with, or the giving of
any form of security to, any governmental agency or any body created or
approved by law or governmental regulation, which Lien is required by
law or governmental regulation as a condition to the transaction of any
business or the exercise of any privilege, franchise, license or
permit;
6
<PAGE> 13
(f) Liens for taxes, assessments or governmental charges or
levies not yet delinquent or governmental charges or levies already
delinquent, the validity of which charge or levy is being contested in
good faith and for which any reserves required in accordance with
generally accepted accounting principles have been established;
(g) Liens (including judgment liens) arising in connection
with legal proceedings so long as such proceedings are being contested
in good faith and, in the case of judgment liens, execution thereon is
stayed and for which any reserves required in accordance with generally
accepted accounting principles have been established; and
(h) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing clauses (a) to (g), inclusive; provided,
however, that the principal amount of Secured Debt secured thereby
shall not exceed the principal amount of Secured Debt secured thereby
at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part of
the property which secured the Lien so extended, renewed or replaced
(plus improvements to such property).
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government, or any agency or political
subdivision thereof.
"Principal Property" shall mean any building, structure or
other facility, together with the land upon which it is erected and fixtures
comprising a part thereof, used primarily for manufacturing, processing or
warehousing and located in the United States, owned or leased (under capital
lease) by the Company or a Tax Consolidated Subsidiary, the gross book value
(without deduction of any depreciation reserves) of which on the date as of
which the determination is being made exceeds 1% of Consolidated Net Tangible
Assets, other than any such building, structure or other facility or portion
thereof or any such land or fixture (a) which is financed by outstanding
obligations issued by a State, a Territory, or a possession of the United
States, or any political subdivision or authority of any of the foregoing, or
the District of Columbia, or (b) which, in the reasonable opinion of the Board
of Directors of the Company is not of material importance to the total business
conducted by the Company and its Subsidiaries as an entirety.
"Record Date" as used with respect to any Interest Payment
Date shall mean the close of business on the 15th day of the month preceding the
month in which an Interest Payment Date occurs, if such Interest Payment Date is
the first day of such month, or the first day of the month in which an Interest
Payment Date occurs, if such Interest Payment Date is the 15th day of
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<PAGE> 14
such month, in each case whether or not a Business Day, or such other dates with
respect to a particular series of Securities as may be specified in the
instrument establishing such series.
"Responsible Officer" when used with respect to the Trustee
shall mean any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer who shall have direct responsibility for the
administration of this Indenture and to whom such matter is referred because of
his or her knowledge of and familiarity with the particular subject.
"Sale and Leaseback Transaction" shall mean any arrangement
with any Person other than a Tax Consolidated Subsidiary providing for the
leasing (as lessee) by the Company or a Tax Consolidated Subsidiary of any
property (except for temporary leases for a term, including any renewal thereof,
of not more than three years (provided that any such temporary lease may be for
a term of up to five years if (a) the Board of Directors of the Company
reasonably finds such term to be in the best interest of the Company and (b) the
primary purpose of the transaction of which such lease is a part is not to
provide funds or financing for the Company or a Tax Consolidated Subsidiary)),
which property has been or is to be sold or transferred by the Company or a Tax
Consolidated Subsidiary (i) to any Subsidiary of the Company (other than a Tax
Consolidated Subsidiary) in contemplation of or in connection with such
arrangement or (ii) to such other Person.
"Secured Debt" shall mean Indebtedness of the Company secured
by any Lien on Principal Property (including Capital Stock or indebtedness of
Subsidiaries of the Company) owned by the Company.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Security or Securities" shall have the meaning stated in the
first recital of this Indenture and shall more particularly mean any Security or
such Securities, as the case may be, authenticated and delivered pursuant to
this Indenture.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Sinking Fund" shall mean any fund established by the Company
for redemption of the Securities of any series prior to Stated Maturity.
"Stated Maturity", when used with respect to any Security,
shall mean the date on which the last payment of principal of such Security is
due and payable in accordance with the terms thereof.
"Subsidiary" shall mean any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting
power to elect a majority of the
8
<PAGE> 15
directors of such corporation, irrespective of whether or not at the time stock
of any class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency, is at the time, directly or
indirectly, owned or controlled by the Company or by one or more Subsidiaries
thereof, or by the Company and one or more Subsidiaries.
"Tax Consolidated Subsidiary" shall mean a Subsidiary of the
Company with which the Company would be entitled to file a consolidated federal
income tax return.
"Trustee" shall mean the Trustee named in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions hereof, and thereafter "Trustee" shall mean or include
all Trustees hereunder, and, subject to the provisions of Article Seven, shall
also include its successors and assigns, and, unless the context otherwise
requires, shall also include any co-trustee or co-trustees or separate trustee
or trustees appointed pursuant to Section 7.15.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, as in force on the date of this Indenture; provided, however,
that in the event that such Act is amended after such date, "Trust Indenture
Act" shall mean, to the extent required by such amendment or the context of this
Indenture, the Trust Indenture Act of 1939 as so amended.
SECTION 1.02. OTHER DEFINITIONS. The terms listed below in
this Section 1.02 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and any indenture
supplemental hereto shall have the respective meanings specified in the sections
of this Indenture set opposite the particular term:
<TABLE>
<CAPTION>
Defined in
Terms Section
----- -------
<S> <C>
Defaulted Interest...........................................................................2.04
Funded Debt..................................................................................4.07
Mandatory Sinking Fund payment...............................................................3.04
Market Exchange Rate........................................................................14.08
Optional Sinking Fund payment................................................................3.04
Security Register and Security Registrar.....................................................2.06
Sinking Fund payment date....................................................................3.04
Specified Currency..........................................................................14.08
</TABLE>
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this Indenture.
All terms not defined in this Article One which are defined in the Trust
Indenture Act, or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided and unless the context otherwise
requires), shall have the meanings assigned to such terms in the Trust Indenture
Act and in the Securities Act as
9
<PAGE> 16
in force as of the date of this Indenture. The following Trust Indenture Act
terms used in the provisions of the Trust Indenture Act incorporated by
reference in this Indenture shall have the following meanings:
"Commission" shall mean the SEC.
"Indenture Securities" shall mean the Securities.
"Indenture to Be Qualified" shall mean this Indenture.
"Indenture Trustee or Institutional Trustee" shall mean the
Trustee.
"Obligor" with reference to Indenture Securities shall mean
the Company.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. AMOUNT UNLIMITED; ESTABLISHMENT OF SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series; and each
such series shall rank pari passu with all other unsecured and unsubordinated
indebtedness of the Company. All Securities of any one series shall be
substantially identical except as to denomination and except as the Company in
an Officers' Certificate delivered pursuant to this Section 2.01 or in any
supplemental indenture may otherwise provide. The Securities may bear interest
at such lawful rate or rates, from such date or dates, shall mature at such time
or times, may be redeemable at such price or prices and upon such terms,
including, without limitation, out of proceeds from the sale of other
Securities, or other indebtedness of the Company, and may contain and/or be
subject to such other terms and provisions as shall be determined by the Company
prior to the issuance of such Securities in accordance with the authority
granted in one or more resolutions of the Board of Directors and set forth in an
Officers' Certificate or a supplemental indenture, which instrument shall
establish with respect to each series of Securities:
(1) the designation of the Securities of such series, which
shall distinguish the Securities of one series from all other
Securities;
(2) the limit upon the aggregate principal amount at Stated
Maturity of the Securities of such series which may be authenticated
and delivered under this Indenture (not including Securities
authenticated and delivered upon registration of transfer of, or in
10
<PAGE> 17
exchange for, or in lieu of, other Securities of such series pursuant
to Section 2.06, 2.07, 2.08, 3.02 or 10.04);
(3) the rate or rates at which the Securities of such series
shall bear interest, if any, or the formula or method by which interest
shall accrue, the dates from which interest shall accrue, the Interest
Payment Dates on which such interest shall be payable, and, in the case
of registered Securities, the Record Date for the interest payable on
any Interest Payment Date;
(4) the Stated Maturity of the Securities of such series;
(5) the period or periods within which, the price or prices at
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;
(6) the obligation, if any, of the Company to redeem or
purchase Securities of such series pursuant to a sinking, purchase or
analogous fund or at the option of the holder thereof and the period or
periods within which, the price or prices at which, and the terms and
conditions upon which, the Securities of such series shall be redeemed,
or purchased, in whole or in part, pursuant to such obligation;
(7) if other than the principal amount at Stated Maturity, the
portion of the principal amount at Stated Maturity of the Securities of
such series which shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.02;
(8) if other than denominations of $1,000 and any integral
multiple of such denominations for Securities denominated in Dollars,
the denominations in which the Securities of such series shall be
issuable;
(9) the form of Security to be used to evidence ownership of
Securities of such series;
(10) any terms with respect to conversion of the Securities of
such series, warrants attached thereto or terms pursuant to which
warrants may exist;
(11) the place or places where the principal of (and premium,
if any) and interest, if any, on the Securities of such series shall be
payable;
(12) any additional offices or agencies maintained pursuant to
Section 4.03;
(13) whether the Securities of such series shall be issued as
registered Securities or as unregistered Securities, with or without
Coupons; whether unregistered Securities may be exchanged for
registered Securities of such series and whether
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registered Securities may be exchanged for unregistered Securities of
such series (if permitted by applicable laws and regulations) and the
circumstances under which and the place or places where any such
exchanges, if permitted, may be made; and whether the Securities of
such series shall be issued in whole or in part in the form of one or
more Global Securities and, in such case, the Depositary for such
Global Security or Securities and whether any Global Securities of such
series shall be issuable initially in temporary form, and whether any
Global Securities of such series shall be issuable in definitive form,
with or without Coupons, and, if so, whether beneficial owners of
interests in any such definitive Global Security may exchange such
interests for Securities of such series and the circumstances under
which and the place or places where any such exchange may occur;
(14) if other than Dollars, the currency or currencies, or
currency unit or units in which the Securities of such Series shall be
denominated and in which payment of the principal of (and premium, if
any) and interest, if any, on any of such Securities shall be payable;
(15) if the principal of (and premium, if any) and interest,
if any, on any of the Securities of such series are to be payable at
the election of the Company or a Holder thereof or under some or all
other circumstances, in a currency or currencies, or currency unit or
units other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon
which, such election may be made, or the other circumstances under
which any of the Securities are to be so payable, and any provision
requiring the Holder to bear currency exchange costs by deduction from
such payments;
(16) if the amount of payments of principal (and premium, if
any) and interest, if any, on any of the Securities of such series may
be determined with reference to a currency, currency unit, commodity or
financial or non-financial index or indices, then the manner in which
such amounts shall be determined;
(17) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts on
any of the Securities and Coupons, if any, of such series to any holder
who is not a U.S. Person (including a definition of such term), in
respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay additional amounts (and the terms of
any such option);
(18) the Person to whom any interest on any registered
Security of such series shall be payable, if other than the Person in
whose name that Security is registered at the close of business on the
Record Date for such interest, the manner in which, or the Person to
whom, any interest on any unregistered Security of such series shall be
payable, if otherwise than upon presentation and surrender of the
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<PAGE> 19
Coupons appertaining thereto as they severally mature, and the extent
to which, or the manner in which, any interest payable on a temporary
Global Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 4.02;
(19) whether Section 12.02 shall not apply to the Securities
of such series; and
(20) any other terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series need not be issued at the
same time, and unless otherwise provided, a series may be reopened for issuance
of additional Securities of such series.
SECTION 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Securities of each series shall be substantially in the form
established by or pursuant to one or more resolutions of the Board of Directors,
with such specific terms, additions or omissions as may be determined pursuant
to an Officers' Certificate or a supplemental indenture as contemplated in
Section 2.01 hereof, in each case with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of the Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage. The Trustee's certificate of authentication to
be borne by such Securities shall be in the form set forth below:
(Form of Trustee's Certificate of Authentication)
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
---------------------------------
Authorized Signatory
SECTION 2.03. GLOBAL SECURITIES. If Securities of a series are
issuable in whole or in part as Global Securities pursuant to Section 2.01,
then, notwithstanding clause (8) of Section 2.01 and the provisions of Section
2.04, such Global Securities shall represent such of the Outstanding Securities
of such series as shall be specified therein and may provide that they shall
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<PAGE> 20
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges or
redemptions. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company
Direction to be delivered to the Trustee pursuant to Section 2.04 or Section
2.07. Subject to the provisions of Section 2.04 and, if applicable, Section
2.07, the Trustee shall deliver and redeliver any Global Security in the manner
and upon written instructions given by the Person or Persons specified therein
or in the applicable Company Direction. If a Company Direction pursuant to
Section 2.04 or 2.07 has been, or simultaneously is, delivered, any instructions
by the Company with respect to endorsement or delivery or redelivery of a Global
Security shall be in writing but need not comply with Section 14.05 and need not
be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Sections 2.02 and 4.02,
unless otherwise specified pursuant to Section 2.01, payment of principal of
(and premium, if any) and interest, if any, on any Global Security shall be made
to the Person or Persons specified therein.
If at any time the Depositary for the Global Securities of a
series notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities of such series or if at any time the
Depositary for the Global Securities of such series shall no longer be eligible
to serve as Depositary, the Company shall appoint a successor Depositary with
respect to the Global Securities of such series. If a successor Depositary for
the Global 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 2.01 that such
Securities be represented by one or more Global Securities shall no longer be
effective with respect to the Global Securities of such series and the Company
shall execute, and the Trustee, upon receipt of a Company Direction 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 or portion thereof 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 will execute, and the
Trustee, upon receipt of a Company Direction for the authentication and delivery
of definitive Securities of such series in exchange for such Global Security or
Securities, will 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 such Global Security or Securities being exchanged.
Upon the exchange of a Global Security for Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Registered Securities issued in exchange for a
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<PAGE> 21
Global Security pursuant to this Section shall be registered in such names and
in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such registered Securities
to, or upon the order of, the Persons in whose names such Securities are so
registered.
Unless otherwise specified by the Company pursuant to Section
2.01, 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 to a nominee 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.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.04. DENOMINATION, AUTHENTICATION AND DATING OF
SECURITIES. The Securities of each series may be issued as registered Securities
or, if provided by the terms of the instrument establishing such series of
Securities, as unregistered Securities, with or without Coupons. The Securities
of each series, if registered, shall be issuable in denominations of $1,000 and
any integral multiple of $1,000, unless otherwise provided by the terms of the
instrument establishing such series of Securities. Each Security shall be dated
as of the date of its authentication.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Direction for authentication and delivery of such Securities, and the
Trustee shall thereupon authenticate and make available for delivery such
Securities in accordance with such Company Direction. Prior to the issuance of
Securities of any series, the Trustee shall be entitled to receive, and subject
to Section 7.01, shall be fully protected in relying upon:
(1) a Certified Board Resolution pursuant to which the
issuance of the Securities of such series is authorized;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate, if any, delivered in accordance
with Section 2.01 and an Officers' Certificate as to the absence of any
Event of Default or any event which with notice or lapse of time or
both could become an Event of Default; and
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<PAGE> 22
(4) at the option of the Company, one of the following: an
Opinion of Counsel or a letter addressed to the Trustee permitting the
Trustee to conclusively rely on an Opinion of Counsel, substantially to
the effect that:
(i) the form and the terms of the Securities of such
series have been established in conformity with the provisions
of this Indenture;
(ii) the Securities of such series have been duly
authorized, and, when the Securities of such series and the
Coupons, if any, appertaining thereto shall have been executed
by the Company and authenticated by the Trustee in accordance
with the provisions of this Indenture and delivered to and
duly paid for by the purchasers thereof, such Securities will
have been duly issued under this Indenture and will be valid
and legally binding obligations of the Company enforceable in
accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and will be entitled to the
benefits of this Indenture;
(iii) no consent, approval, authorization, order,
registration or qualification of or with any governmental
agency or body having jurisdiction over the Company is
required for the execution and delivery of the Securities of
such series by the Company, except such as have been obtained,
but no opinion need be expressed as to provincial or state
securities or Blue Sky laws; and
(iv) the registration statement, if any, relating to
the Securities of such series and any amendments thereto has
become effective under the Securities Act, and to the
knowledge of such counsel, no stop order suspending the
effectiveness of such registration statement, as amended, has
been issued and no proceeding for that purpose have been
instituted or threatened;
In addition, such Opinion of Counsel shall address such other
matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate
and deliver any Securities of such series (A) if a Responsible Officer of the
Trustee, being advised by counsel, determines that such action may not lawfully
be taken; or (B) if the Trustee in good faith shall determine that such action
would expose the Trustee to personal liability to Holders of Outstanding
Securities of any series.
So long as there is no existing default in the payment of
interest on registered Securities of any series, all such Securities
authenticated by the Trustee after the close of business on the Record Date for
the payment of interest on any Interest Payment Date relating to such
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<PAGE> 23
Record Date and prior to such Interest Payment Date shall bear interest from
such Interest Payment Date; provided, however, that if and to the extent that
the Company shall default in the interest due on such Interest Payment Date,
then any such Securities shall bear interest from the next preceding Interest
Payment Date relating to such Security with respect to which interest has been
paid or duly provided for on such Securities, or if no interest has been paid or
duly provided for on such Securities, from the date from which interest shall
accrue as such date is set forth in the instrument establishing the terms of
such Securities.
The Person in whose name any Security is registered at the
close of business on any Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any registration and
transfer or exchange thereof subsequent to such Record Date and prior to such
Interest Payment Date, except if and to the extent the Company shall default in
the payment of the interest due on such Interest Payment Date, in which case
such defaulted interest (herein called "Defaulted Interest") shall be paid to
the Persons in whose names outstanding Securities of such series are registered
at the close of business on a subsequent record date, which shall not be less
than five Business Days preceding the date of payment of such Defaulted Interest
established for such purpose by notice given by mail by or on behalf of the
Company to Holders of such Securities not less than 15 days preceding such
subsequent record date. Such notice shall be given to the Persons in whose names
such Outstanding Securities of such series are registered at the close of
business on the third business day preceding the date of the mailing of such
notice.
SECTION 2.05. EXECUTION OF SECURITIES. The Securities and
Coupons appertaining thereto, if any, shall be signed on behalf of the Company
(i) by its Chairman, President, Chief Executive Officer, or any Vice President
and (ii) by its Secretary or any Assistant Secretary. Such signatures may be the
manual or facsimile signatures of the present or any future such authorized
officers and may be imprinted or otherwise reproduced on the Securities and such
Coupons.
Only such Securities as shall bear thereon a Trustee's
certificate of authentication substantially in the form provided in Section 2.04
(or Section 2.12, if applicable), signed manually by the Trustee, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. The Trustee's certificate of authentication on any Security executed by
the Company shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any
of the Securities or such Coupons shall cease to be such officer before the
Securities or such Coupons so signed shall have been authenticated by the
Trustee and delivered or disposed of by the Company, such Securities and such
Coupons nevertheless may be authenticated and delivered or disposed of as though
the officer who signed such Securities and such Coupons had not ceased to be
such officer of the Company; and any Security or such Coupons may be signed on
behalf of the Company by such Persons as, at the actual date of the execution of
such Security or such Coupons, shall be the
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<PAGE> 24
proper officers of the Company, although at the date of such Security or such
Coupons or of the execution of this Indenture any such Person was not such
officer.
SECTION 2.06. REGISTRATION OF TRANSFER AND EXCHANGE. The
Company shall keep, at an office or agency maintained by the Company in
accordance with the provisions of Section 4.03, a register for each series of
registered Securities (such register being herein referred to as the "Security
Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall register Securities of such series and shall
register the transfer of such Securities as in this Article Two provided. At all
reasonable times the Security Register shall be open for inspection by the
Trustee. Subject to Sections 2.01 and 2.03, upon due presentment for
registration of transfer of any such Security at such office or agency, or such
other offices or agencies as the Company may designate, the Company shall
execute and the Trustee shall authenticate and make available for delivery in
the name of the transferee or transferees a new Security or Securities of
authorized denominations, of the same series and of like aggregate principal
amount at Stated Maturity.
Unless and until otherwise determined by or pursuant to one or
more resolutions of the Board of Directors, the Security Register for the
purpose of registration, exchange or registration of transfer of registered
Securities shall be kept at the Corporate Trust Office and, for this purpose,
the Trustee shall be designated the "Security Registrar".
Subject to Sections 2.01 and 2.03, at the option of the
Holder, Securities of any series may be exchanged for Securities of the same
series of like aggregate principal amount at Stated Maturity and of other
authorized denominations. Securities to be so exchanged shall be surrendered at
the offices or agencies to be maintained by the Company as provided in Section
4.03, and the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor the Security or Securities which the
Holder making the exchange shall be entitled to receive.
All Securities presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Security Registrar) be duly endorsed or be accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Company and
the Security Registrar, duly executed by the Holder or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or
registration of transfer 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 relation thereto.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Securities of any series for a period of 15 days
next preceding the mailing of a notice of redemption of Securities of such
series to be redeemed, or (b) to register the transfer of or exchange any
Securities of such series selected, called or being called for redemption in
whole
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or in part except, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed.
SECTION 2.07. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute and make available for delivery
and the Trustee, upon Company Direction, shall authenticate and make available
for delivery temporary Securities (printed, lithographed, or typewritten), of
any authorized denomination, and substantially in the form of the definitive
Securities, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Temporary Securities may be issued without a recital of the specific redemption
prices, if any, applicable tosuch Securities, and may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Company and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. The Company shall execute and furnish definitive
Securities as soon as practicable and thereupon any or all temporary Securities
may be surrendered in exchange therefor at the Corporate Trust Office, and the
Trustee shall authenticate and make available for delivery in exchange for such
temporary Securities a like aggregate principal amount at Stated Maturity of
definitive Securities of the same series. Until so exchanged, the temporary
Securities shall be entitled to the same benefits under this Indenture as
definitive Securities authenticated and delivered hereunder.
SECTION 2.08. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.
In case any temporary or definitive Security and, in the case of a definitive
Security, Coupons appertaining thereto, if any, shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon a
Company Direction the Trustee shall authenticate and make available for
delivery, a new Security or such Coupons of the same series bearing a number not
contemporaneously Outstanding, in exchange and substitution for the mutilated
Security or such Coupons, or in lieu of and in substitution for the Security or
such Coupons so destroyed, lost or stolen. In every case, the applicant for a
substituted Security or such Coupons shall furnish to the Company and to the
Security Registrar and any paying agent, such security or indemnity as may be
required by them to save each of them harmless from all risk, however remote,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company and to the Security Registrar and any paying agent,
evidence to their satisfaction of the destruction, loss or theft of such
Security or such Coupons and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon Company
Direction. Upon the issuance of any substituted Security or such Coupons, 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 connected therewith. In case any Security which has matured or is about
to mature or which has been called for redemption shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substituted
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security) if the applicant for such payment
shall furnish the Company and any paying agent with such security or indemnity
as either may require to save it harmless from all risk, however remote,
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<PAGE> 26
and, in case of destruction, loss or theft, evidence to the satisfaction of the
Company of the destruction, loss or theft of such Security and of the ownership
thereof.
Every substituted Security of any series or Coupon issued
pursuant to the provisions of this Section 2.08 by virtue of the fact that any
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security or Coupon shall be found at any time, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of such series or Coupons duly issued and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and Coupons, and
shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.09. CANCELLATION OF SURRENDERED SECURITIES. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, and all Coupons surrendered for payment, shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee for cancellation by
it, or, if surrendered to the Trustee, shall be canceled by it, and all
Securities delivered to the Trustee in discharge or satisfaction in whole or in
part of any Sinking Fund payment (referred to in Section 3.04) shall be canceled
by the Trustee and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. By a Company
Request the Trustee shall dispose of the Securities in accordance with its
customary procedures. If the Company shall acquire any of the Securities or
Coupons, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness or rights represented by such Securities or
Coupons unless and until the same are delivered or surrendered to the Trustee
for cancellation.
SECTION 2.10. PROVISIONS OF INDENTURE AND SECURITIES FOR THE
SOLE BENEFIT OF THE PARTIES AND THE HOLDERS. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto and the Holders, any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained, all its covenants, conditions
and provisions being for the sole benefit of the parties hereto and the Holders.
SECTION 2.11. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 2.01 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 2.12. AUTHENTICATING AGENTS. The Trustee shall, if
requested pursuant to a Company Request, promptly appoint an agent or agents of
the Trustee who shall have authority to authenticate Securities of any series in
the name and on behalf of the Trustee. Such appointment by the Trustee shall be
evidenced by a certificate executed by a Responsible Officer
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<PAGE> 27
of the Trustee delivered to the Company prior to the effectiveness of such
appointment designating such agent or agents and stating that all appropriate
corporate action has been taken by the Trustee in connection with such
appointment. Wherever reference is made in this Indenture to the authentication
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Trustee by an authenticating agent and a certificate of authentication executed
on behalf of the Trustee by an authenticating agent.
Any such authenticating agent shall be an agent acceptable to
the Company and shall at all times be a corporation which is organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to act as authenticating agent, having a combined
capital and surplus of at least $1,000,000, and subject to supervision or
examination by federal or state authority.
An authenticating agent may at any time resign with respect to
one or more series of Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of
an authenticating agent with respect to one or more series of Securities by
giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such notice of resignation or upon such termination, or
in case at any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee promptly may appoint
a successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each authenticating agent from
time to time reasonable compensation for its services under this Section.
The provisions of Sections 7.03, 7.04 and 7.05 shall be
applicable to any authenticating agent.
Pursuant to each appointment of an authenticating agent made
under this Section, the Securities of each series covered by such appointment
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
(ALTERNATE FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION)
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This is one of the Securities of the series designated herein
referred to in the Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-------------------------------------------
Authorized Signatory
SECTION 2.13. COMPLIANCE WITH CERTAIN LAWS AND REGULATIONS. If
any unregistered Securities are to be issued in any series of Securities, the
Company shall use reasonable efforts to provide for arrangements and procedures
designed pursuant to then applicable laws and regulations, if any, to ensure
that such unregistered Securities are sold or resold, exchanged, transferred and
paid only in compliance with such laws and regulations and without adverse
consequences to the Company, the Holders and the Trustee.
SECTION 2.14. MEDIUM-TERM SECURITIES. Notwithstanding any
contrary provision herein, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the Company
Direction, Officers' Certificate, supplemental indenture or Opinion of Counsel
otherwise required pursuant to Sections 2.01, 2.03, 2.04, 2.07 and Section 14.05
at or prior to the time of authentication of each Security of such series if
such documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued; provided that any
subsequent direction by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such direction, the statements
made in the Officers' Certificate or supplemental indenture delivered pursuant
to Section 2.01 shall be true and correct as if made on such date.
An Officers' Certificate or supplemental indenture, delivered
pursuant to this Section 2.14 in the circumstances set forth in the preceding
paragraph, may provide that Securities which are the subject thereof will be
authenticated and delivered by the Trustee on original issue from time to time
upon the telephonic or written order of Persons designated in such Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such Person) and that such Persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities as are
specified in such Officers' Certificate or supplemental indenture.
SECTION 2.15. CUSIP NUMBERS. The Company in issuing the
Securities of any series 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
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<PAGE> 29
notice may state that no representation is made as to the correctness of such
numbers either as printed on such Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other indemnification
numbers printed on such Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will promptly
notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE THREE
REDEMPTION OF SECURITIES - SINKING FUND
SECTION 3.01. APPLICABILITY OF ARTICLE. The Company may become
obligated, or reserve the right, to redeem and pay, prior to Stated Maturity,
all or any part of the Securities of any series, either by optional redemption,
Sinking Fund or otherwise, by provision therefor in the instrument establishing
such series of Securities pursuant to Section 2.01 or in the Securities of such
series. Redemption of any series shall be made in accordance with the terms of
such Securities and to the extent that this Article does not conflict with such
terms, in accordance with this Article.
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF SECURITIES.
In case the Company shall be obligated, or shall exercise the right, to redeem
Securities as provided for in the first sentence of Section 3.01, it shall fix a
date for redemption (unless, by the terms of the instrument establishing such
series of Securities or the terms of such Securities, such date is fixed) and
the Company, or, upon a Company Request given to the Trustee no less than 45
days prior to the date fixed for redemption, the Trustee, in the name of and at
the expense of the Company, shall give notice of such redemption to the Holders
of the Securities to be redeemed as a whole or in part, with respect to
registered Securities, by mailing a notice of such redemption not less than 30
nor more than 60 days prior to the date fixed for redemption to their last
addresses as they shall appear upon the Security Register and, with respect to
unregistered Securities, by publishing in an Authorized Newspaper notice of such
redemption on two separate days, each of which is not less than 30 nor more than
the 60 days prior to the date fixed for redemption. Any notice which is mailed
or published, as the case may be, in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
actually receives such notice. In any case, failure duly to give notice by mail,
or any defect in the notice, to the Holder of any registered Security of any
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impractical to mail notice of any event to
Holders of registered Securities when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
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Each such notice of redemption shall specify the designation
of the series of the Securities to be redeemed (including CUSIP numbers), the
date fixed for redemption and the redemption price at which Securities are to be
redeemed, and shall state that payment of the redemption price of the Securities
or portions thereof to be redeemed will be made at the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 4.03 upon
presentation and surrender of such Securities, that interest accrued to the date
fixed for redemption will be paid as specified in such notice, and that, on and
after such date, interest thereon or on the portions thereof to be redeemed will
cease to accrue. If less than all the Securities of any series are to be
redeemed, the notice to the Holders of Securities to be redeemed shall specify
the Securities to be redeemed. In case any Security is to be redeemed in part
only, such notice shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date, upon surrender
of such Security, a new Security or Securities of the same series in authorized
denominations and in a principal amount at Stated Maturity equal to the
unredeemed portion thereof will be issued.
If less than all the Securities of like tenor and terms of any
series are to be redeemed, the Company shall give the Trustee written notice, at
least 60 days (or such shorter period acceptable to the Trustee) in advance of
the date fixed for redemption, as to the aggregate principal amount at Stated
Maturity of Securities of such series to be redeemed, which shall be an integral
multiple of the minimum authorized denomination of such series, and thereupon
the Trustee shall select, in such manner as it shall deem appropriate and fair,
the Securities of such series to be redeemed in whole or in part and shall
thereafter promptly notify the Company in writing of the numbers of the
Securities so to be redeemed and, in the case of Securities to be redeemed in
part only, the principal amount at Stated Maturity so to be redeemed. If less
than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Securities to be redeemed shall be selected by the
Company, and the Company shall notify the Trustee in writing thereof at least 45
days before the relevant redemption date.
SECTION 3.03. WHEN SECURITIES CALLED FOR REDEMPTION BECOME DUE
AND PAYABLE. If the giving of notice of redemption shall have been completed as
provided in Section 3.02, the Securities or portions of Securities specified in
such notice shall become due and payable on the date and at the place stated in
such notice at the applicable redemption price, together with interest accrued
to the date fixed for redemption, and on and after such date fixed for
redemption (unless the Company shall default in the payment of such Securities
at the redemption price, together with interest accrued to the date fixed for
redemption) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment
specified in such notice, such Securities shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued to
the date fixed for redemption; provided, however, that installments of interest
becoming due on the date fixed for redemption on Securities which are in
registered form shall be payable to the Holders of such Securities or of one or
more previous such Securities evidencing all or a portion of the same debt as
that evidenced by
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such particular Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 2.04.
Upon presentation of any Security which is redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder of such Security, at the expense of the
Company, a new Security or Securities of the same series in authorized
denominations and in a principal amount at Stated Maturity equal to the
unredeemed portion of the Security so presented.
SECTION 3.04. SINKING FUND. In the event that the instrument
establishing the terms of a particular series shall provide for a Sinking Fund,
the Company covenants that as and for a Sinking Fund for the redemption of
Securities of such series, so long as any of the Securities of such series are
Outstanding:
(a) It will pay to the Trustee or to a paying agent (or, if
the Company is acting as its own paying agent, segregate and hold in
trust as provided in Section 4.05) on or before each date set forth as
a Sinking Fund payment date in the instrument establishing such series,
a sum in cash sufficient to retire on each such date, at the Sinking
Fund redemption price provided for in such instrument and upon the
conditions, if any, applicable thereto as specified in such instrument,
the principal amount of such Securities as specified in such
instrument. Each such date is herein called a "Sinking Fund payment
date", and each sum payable as provided in this paragraph (a) is herein
called a "mandatory Sinking Fund payment".
(b) If the instrument establishing any series of Securities so
provides, the Company may elect to pay to the Trustee or to a paying
agent (or, if the Company is acting as its own paying agent, segregate
and hold in trust as provided in Section 4.05) on or before any Sinking
Fund payment date with respect to a particular series of Securities, an
additional sum in cash sufficient to retire on such Sinking Fund
payment date, at the Sinking Fund redemption price, up to any
additional principal amount of Securities set forth in such instrument.
Any sum payable as provided in this paragraph (b) is herein called an
"optional Sinking Fund payment". Any such election by the Company shall
be evidenced by an Officers' Certificate (which shall conform to
Section 14.05), delivered to the Trustee not later than 60 days (or
such shorter period acceptable to the Trustee)
preceding such Sinking Fund payment date, which Officers' Certificate
shall set forth the amount of the optional Sinking Fund payment which
the Company then elects to pay. The Company's election, so evidenced,
shall be irrevocable and the Company shall, upon delivery of such
Officers' Certificate to the Trustee, become bound to pay or segregate
and hold in trust as aforesaid on or before such Sinking Fund payment
date the amount specified in such Officers' Certificate. Unless
otherwise provided in the instrument establishing such series, any such
right to make an
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optional Sinking Fund payment shall be noncumulative and shall in no
event relieve the Company of its obligation set forth in paragraph (a)
of this Section 3.04.
All moneys paid or segregated and held in trust pursuant to
this Section 3.04 shall be applied on the Sinking Fund payment date in respect
of which such payment or segregation was made, to the redemption of Securities
as provided in this Article Three.
SECTION 3.05. USE OF ACQUIRED SECURITIES TO SATISFY SINKING
FUND OBLIGATION. In lieu of making all or any Sinking Fund payment in cash as
may be required by Section 3.04(a), the Company may, not later than 60 days (or
such shorter period acceptable to the Trustee) preceding any applicable Sinking
Fund payment date relating to a particular series of Securities, deliver to the
Trustee for cancellation Securities of such series theretofore acquired by the
Company (otherwise than through the use of Sinking Fund moneys pursuant to
Section 3.07) and not theretofore made the basis for the reduction of any
Sinking Fund payment with respect to such series, accompanied by an Officers'
Certificate (which shall conform to Section 14.05) stating the Company's
election to use such Securities to reduce the amount of such Sinking Fund
payment with respect to such series (specifying the amount of the reduction of
each such payment) and certifying that such Securities have not theretofore been
made the basis for a reduction of any Sinking Fund payment with respect to such
series. Securities so delivered shall be credited against the Sinking Fund
payment due on such Sinking Fund payment date at the Sinking Fund redemption
price thereof.
SECTION 3.06. EFFECT OF FAILURE TO DELIVER OFFICERS'
CERTIFICATE OR SECURITIES. In case of a failure of the Company, at or before the
time provided in Section 3.05, to deliver an Officers' Certificate, together
with any Securities of the particular series required by Section 3.05, the
Company shall not be permitted to make any such reduction of the amount of the
Sinking Fund payment with respect to such series payable on such Sinking Fund
payment date.
SECTION 3.07. MANNER OF REDEEMING SECURITIES. The Securities
of any series to be redeemed from time to time through the operation of any
Sinking Fund relating to such series, as in Section 3.04 provided, shall be
selected by the Trustee for redemption in the manner provided in Section 3.02
and notice thereof shall be given by the Trustee to the Company, and the Company
hereby irrevocably authorizes the Trustee, in the name of and at the expense of
the Company, to give notice on behalf of the Company of the redemption of such
Securities, all in the manner and with the effect in this Article Three
specified, except that, in addition to the matters required to be included in
such notice by Section 3.02, such notice shall also state that the Securities
therein designated for redemption are to be redeemed through operation of such
Sinking Fund. Such Securities shall be so redeemed and paid in accordance with
such notice in the manner and with the effect provided in Sections 3.02 and
3.03.
Notwithstanding the foregoing, if at any time the amount of
cash to be paid into any Sinking Fund with respect to a particular series of
Securities on any next succeeding Sinking Fund payment date for such series,
together with any unused balance of any preceding Sinking
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Fund payment or payments with respect to such series which shall not, in any
case, include funds held by the Trustee for Securities of such series which
previously have been called for redemption, shall not exceed in the aggregate
$100,000, the Trustee, unless requested by the Company, shall not select
Securities for or give notice of the redemption of Securities through the
operation of the Sinking Fund with respect to such series on the next succeeding
Sinking Fund payment date. Such unused balance of moneys deposited in the
Sinking Fund with respect to a particular series of Securities shall be added to
the next Sinking Fund payment for such series to be made in cash or, at the
request of the Company, shall be applied at any time or from time to time to the
purchase of Securities of such series, by public or private purchase, in the
open market or otherwise.
SECTION 3.08. SINKING FUND MONEYS TO BE HELD AS SECURITY
DURING CONTINUANCE OF EVENT OF DEFAULT; EXCEPTIONS. Unless all Securities of any
series then Outstanding are to be redeemed, neither the Trustee nor any paying
agent shall redeem any Securities of such series with Sinking Fund moneys if a
Responsible Officer of the Trustee or such paying agent at the time shall have
actual knowledge of the continuance of any Event of Default with respect to such
series, except that where the mailing or publication of notice of redemption of
any such Securities shall theretofore have been made, the Trustee or any paying
agent, if sufficient funds shall have been deposited with it for such purpose,
shall redeem such Securities. However, the Company itself shall not redeem any
such Securities with Sinking Fund moneys during the continuance of any Event of
Default with respect to such series. The Trustee shall not mail or publish any
notice of redemption if a Responsible Officer of the Trustee at the time shall
have actual knowledge of the continuance of any Event of Default with respect to
such series. Except as aforesaid, any moneys in the Sinking Fund with respect to
such series at such time and any moneys thereafter paid into the Sinking Fund
shall during such continuance be held as security for the payment of all
Securities of that series; provided, however, that in case such Event of Default
with respect to such series shall have been waived as permitted by this
Indenture or otherwise cured, such moneys shall thereafter be held and applied
in accordance with the provisions of this Article Three.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. EXISTENCE. Subject to Article XI, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its 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 Board of Directors 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.
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SECTION 4.02. PAYMENTS OF PRINCIPAL OF (AND PREMIUM, IF ANY)
AND INTEREST, IF ANY, ON SECURITIES. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and interest, if any, on
Securities of each series at the place, at the time or times and in the manner
provided in the instrument establishing such series and in the Securities of
such series. The interest on the Securities, if any, shall be payable (subject
to the provisions of Section 2.04) only to or upon the written order of the
Holders thereof or, in the case of unregistered Securities with Coupons, the
Holders of Coupons relating thereto. Any installment of interest on registered
Securities of any series may at the Company's option be paid by mailing checks
for such interest payable to or upon the written order of the Person entitled
thereto pursuant to Section 2.04 to the address of such Person as it appears on
the Security Register or by wire transfer to an account designated in writing by
such Person at least 15 days prior to the relevant payment date.
SECTION 4.03. MAINTENANCE OF OFFICES OR AGENCIES FOR
REGISTRATION OF TRANSFER, EXCHANGE AND PAYMENT OF SECURITIES. As long as any of
the Securities of any series remain Outstanding, the Company will maintain one
or more offices or agencies in Chicago, Illinois or New York, New York, or at
such other locations as the Company may from time to time designate for any
series of Securities, where such Securities may be presented for registration of
transfer and exchange as in this Indenture provided, where such Securities may
be presented for payment and where notices and demands to or upon the Company in
respect of such Securities or of this Indenture may be served. The Trustee shall
be the agent of the Company in the city in which the Corporate Trust Office is
located for all of the foregoing purposes unless the Company shall designate and
maintain some other office and agency for such purposes and give the Trustee
written notice of the location thereof. The Company will give to the Trustee
notice of the location of each such office or agency and of any change of
location thereof.
SECTION 4.04. 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 one or more series of Securities, will appoint, in the
manner provided in Section 7.11, a Trustee, so that there shall at all times be
a Trustee with respect to each series of Securities hereunder.
SECTION 4.05. DUTIES AND RIGHTS OF PAYING AGENTS; COMPANY AS
PAYING AGENT. (a) The Company shall cause each paying agent, if any, other than
the Trustee, for any series of Securities, to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 4.05, that such agent will:
(1) hold all sums held by it as such agent for the payment of
the principal of (and premium, if any) or interest on the Securities of
such series (whether such sums have been paid to it by the Company or
by any other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series;
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(2) give the Trustee notice of any default by the Company (or
by any other obligor on the Securities of such series) in making any
payment of the principal of (or premium, if any) or interest on the
Securities of such series when the same shall be due and payable; 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 by it as such agent.
Whenever the Company shall have one or more paying agents for
any series of Securities, it will, on or before each due date of the principal
of (and premium, if any) or interest on Securities of such series, deposit with
such paying agent or agents a sum sufficient to pay such principal (and premium,
if any) or interest on such Securities so becoming due.
(b) If the Company shall act as its own paying agent for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series a sum sufficient to pay such principal (and premium, if any) or
interest on such Securities so becoming due. The Company will promptly notify
the Trustee of any failure by the Company to take such action or the failure by
any other obligor on the Securities of such series to make any payment of the
principal of (or premium, if any) or interest on the Securities of such series
when the same shall be due and payable.
(c) Anything in this Section 4.05 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by the Company or any
paying agent hereunder, as required by this Section 4.05, 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.
(d) Anything in this Section 4.05 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section
4.05 is subject to the provisions of Sections 12.04 and 12.05.
SECTION 4.06. LIMITATION ON SECURED DEBT. So long as any of
the Securities remain outstanding, the Company will not, nor will the Company
permit any Tax Consolidated Subsidiary to, directly or indirectly create or
incur any Secured Debt without in any such case effectively providing
concurrently with the creation or incurrence of any such Secured Debt that the
Securities then outstanding (together with, if the Company shall so determine,
any other Indebtedness of or guaranteed by the Company ranking equally with the
Securities and then existing or thereafter created) shall be secured equally and
ratably with (or, at the option of the Company, prior to) such Secured Debt,
unless immediately after the incurrence of such Secured Debt (and after giving
effect to the application of proceeds therefrom), the aggregate principal
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amount of all such Secured Debt, together with the aggregate amount of
Capitalized Rent in respect of Sale and Leaseback Transactions (other than Sale
and Leaseback Transactions described in clauses (a) to (e), inclusive, of
Section 4.07), would not exceed 10% of Consolidated Net Tangible Assets;
provided, however, that the foregoing restrictions shall not apply to, and there
shall be excluded in computing Secured Debt for the purpose of such
restrictions, Permitted Encumbrances.
SECTION 4.07. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
So long as any of the Securities remain outstanding, the Company will not, nor
will the Company permit any Tax Consolidated Subsidiary to, directly or
indirectly enter into any Sale and Leaseback Transaction unless immediately
thereafter (and after giving effect to the application of proceeds therefrom),
the aggregate amount of Capitalized Rent in respect of Sale and Leaseback
Transactions, together with the aggregate principal amount of all Secured Debt
(other than Permitted Encumbrances) would not exceed 10% of Consolidated Net
Tangible Assets; provided, however, that the foregoing restrictions shall not
apply to, and there shall be excluded in computing the aggregate amount of
Capitalized Rent for the purpose of such restrictions, the following Sale and
Leaseback Transactions:
(a) any Sale and Leaseback Transaction entered into to finance
the payment of all or any part of the purchase price of property
acquired or constructed by the Company or a Tax Consolidated Subsidiary
(including any improvements to existing property) or entered into prior
to, at the time of or within 270 days after the acquisition or
construction of such property, which Sale and Leaseback Transaction is
entered into for the purpose of financing all or part of the purchase
or construction price thereof; provided, however, that in the case of
any such acquisition, such Sale and Leaseback Transaction shall not
involve any property transferred by the Company or a Tax Consolidated
Subsidiary to a Subsidiary of the Company (other than a Tax
Consolidated Subsidiary) in contemplation of or in connection with such
Sale and Leaseback Transaction or involve any property of the Company
or a Tax Consolidated Subsidiary other than the property so acquired
(other than, in the case of construction or improvement, any
theretofore unimproved real property or portion thereof on which the
property so constructed, or the improvement, is located);
(b) any Sale and Leaseback Transaction involving property of a
Person existing at the time such Person is merged into or consolidated
with the Company or a Tax Consolidated Subsidiary or at the time of a
sale, lease or other disposition of the properties of a Person as an
entirety or substantially as an entirety to the Company or a Tax
Consolidated Subsidiary;
(c) any Sale and Leaseback Transaction in which the lessor is
a government or governmental entity and which Sale and Leaseback
Transaction is entered into to secure partial progress, advance or
other payments, or other
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obligations, pursuant to any contract or statute or to secure any
Indebtedness incurred for the purpose of financing all or any part of
the cost of constructing or improving the property subject to such Sale
and Leaseback Transaction (including, without limitation, Sale and
Leaseback Transactions incurred in connection with pollution control,
industrial revenue, private activity bond or similar financing);
(d) any Sale and Leaseback Transaction involving the
extension, renewal or replacement (or successive extensions, renewals
or replacements) in whole or in part of a lease pursuant to a Sale and
Leaseback Transaction referred to in the foregoing clauses (a) to (c),
inclusive; provided, however, that such lease extension, renewal or
replacement shall be limited to all or any part of the same property
leased under the lease so extended, renewed or replaced (plus
improvements to such property); and
(e) any Sale and Leaseback Transaction the net proceeds of
which are at least equal to the fair value (as determined by the Board
of Directors of the Company) of the property leased pursuant to such
Sale and Leaseback Transaction, so long as within 120 days of the
effective date of such Sale and Leaseback Transaction, the Company or a
Tax Consolidated Subsidiary applies (or irrevocably commits to an
escrow account for the purpose or purposes hereinafter mentioned) an
amount equal to the net proceeds of such Sale and Leaseback Transaction
to either (x) the purchase of other property having a fair value at
least equal to the fair value of the property leased in such Sale and
Leaseback Transaction and having a similar utility and function, or (y)
the retirement or repayment (other than any mandatory retirement or
repayment at maturity) of (i) Securities, (ii) other Funded Debt of the
Company which ranks prior to or on a parity with the Securities or
(iii) indebtedness of any Subsidiary of
the Company maturing by its terms more than one year from its date of
issuance (notwithstanding that any portion of such indebtedness is
included in current liabilities) or preferred stock of any Subsidiary
of the Company (other than any such indebtedness owed to or preferred
stock owned by the Company or any Subsidiary of the Company); provided,
however, that in lieu of applying an amount equivalent to all or any
part of such net proceeds to such retirement or repayment (or
committing such an amount to an escrow account for such purpose), the
Company may deliver to the Trustee outstanding Notes and thereby reduce
the amount to be applied pursuant to (y) of this clause (e) by an
amount equivalent to the aggregate principal amount of the Notes so
delivered.
SECTION 4.08. ANNUAL CERTIFICATE OF COMPLIANCE. On or before
April 30 in each year (commencing April 30, 2000), the Company will furnish the
Trustee with an officers' certificate (executed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company and by the Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company), covering the period during the preceding
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year that any Securities were Outstanding, certifying that after reasonable
investigation and inquiry the Company has complied with all conditions and
covenants contained in this Indenture or, if such is not the case, setting forth
with reasonable particularity the circumstances of any failure so to comply and
the steps taken or proposed to be taken to eliminate such failure. Such
determination shall be made without regard to periods of grace or notice
requirements.
SECTION 4.09. FURTHER INSTRUMENTS AND ACTS. The Company will,
upon 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 more
effectually the purposes of this Indenture, including Sections 4.06 and 4.07.
SECTION 4.10. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The
Company shall file with the Trustee promptly at the end of each calendar year
(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 Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE FIVE
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. COMPANY TO FURNISH TRUSTEE INFORMATION AS TO
NAMES AND ADDRESSES OF HOLDERS. The Company will furnish or cause to be
furnished to the Trustee:
(1) semi-annually, not later than January 1 and July 1 in each
year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of registered Securities of each
series as of the preceding December 15 or June 15, as the case may be;
and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list in similar form and content as of a date not more than 15 days
prior to the date such list is furnished;
provided, however, that so long as the Trustee shall be the Security Registrar
for any series and all of the Securities of such series are registered
Securities, no such list shall be required to be furnished with respect to such
series.
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SECTION 5.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
registered Securities of each series (i) contained in the most recent list
furnished to it as provided in Section 5.01, (ii) received by it in the capacity
of Security Registrar for such series, if so acting, and (iii) filed with it
within the two preceding years pursuant to Section 5.04 (c)(ii). The Trustee may
destroy any list furnished to it with respect to Securities of any Series as
provided in Section 5.01 upon receipt of a new list with respect to such series
so furnished.
(b) If three or more Holders (in this Section referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security 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 the other Holders of the
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with the Holders of the Securities of all series
with respect to their rights under this Indenture or under such 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 preserved
at the time by the Trustee in accordance with Section 5.02(a), or
(ii) inform such applicants as to the approximate number of
Holders of registered Securities of such series or of all registered
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
Section 5.02(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 to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of registered Securities of such series or to
each Holder of registered Securities of all series, as the case may be, whose
name and address shall appear in the information preserved at the time by the
Trustee in accordance with Section 5.02(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 SEC, together with a copy of the material proposed 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 the Holders of registered
Securities of such series or of all series, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the SEC, 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
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order sustaining one or more of such objections, the SEC 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 the Securities and the Coupons, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of the Company or 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 5.02(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 5.02(b).
SECTION 5.03. REPORTS BY COMPANY. The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the SEC, 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 SEC may from time to time by
rules and regulations prescribe) which the Company may be required to
file with the SEC pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or if the Company is not
required to file information, documents or reports pursuant to either
of such sections, then it shall file with the Trustee and the SEC, in
accordance with rules and regulations prescribed from time to time by
the SEC, 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, as amended, in respect of a debt
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with
rules and regulations prescribed from time to time by the SEC, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit by mail to all Holders, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent
provided in Section 5.04, such summaries of any information, documents
and reports required to be filed by the Company pursuant to clauses (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the SEC.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein,
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including the Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 5.04. REPORTS BY TRUSTEE. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. If required by Section 313(a)
of the Trust Indenture Act, the Trustee shall, within sixty days after each
April 15 following the date of this Indenture deliver to Holders a brief report,
dated as of such April 15, which complies with the provisions of such Section
313(a).
(b) The Trustee shall comply with Sections 313(b) and 313(c)
of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the SEC and with the Company.
The Company will promptly notify the Trustee when the Securities are listed on
any stock exchange and of any delisting thereof.
ARTICLE SIX
REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. "Event of Default," wherever
used herein with respect to the Securities of any series, means any one of the
following events which shall have occurred and be continuing (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any of the
Securities of such series when and as the same shall become due and
payable, and continuance of such default for a period of 30 days;
(2) default in the payment of all or any part of the principal
of (or premium, if any, on) any of the Securities of such series at its
Maturity;
(3) default in the deposit of any sinking fund or analogous
payment for the benefit of the Securities of such series when and as
the same shall become due and payable;
(4) default in the performance, or breach, of any covenant or
warranty of the Company in the Securities of such series or in this
Indenture (other than a
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covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically provided for or which has
expressly been included in this Indenture solely for the benefit of the
Securities of other series), and continuance of such default or breach
for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of not less than 25% in aggregate principal
amount of the Securities of all series then Outstanding affected
thereby a written notice specifying such default or breach, requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder;
(5) the failure by the Company or any of its Subsidiaries to
pay any principal or premium or interest on any Indebtedness which is
outstanding in a principal amount of at least $25,000,000 (or its
equivalent in another currency) in the aggregate (but excluding
Indebtedness evidenced by the Securities or otherwise arising under
this Indenture), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and the continuation of such failure after the applicable
grace period, if any, specified in the agreement or instrument relating
to such Indebtedness; or the occurrence or existence of any other event
or condition under any agreement or instrument relating to any such
Indebtedness that continues after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Indebtedness; or any such Indebtedness shall be
declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment), redeemed, purchased or
defeased, or an offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the
stated maturity thereof;
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Bankruptcy Law or
(B) a decree or order adjudging the Company a bankrupt or insolvent, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of all or
substantially all of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstated and in
effect for a period of 90 consecutive days;
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Bankruptcy Law or the consent by it to
the entry of a decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable Bankruptcy Law,
or the consent by it to the appointment of or the taking of possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of all or substantially all
of
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its property, or the making by the Company of a general assignment for
the benefit of creditors;
(8) any other Event of Default provided in or pursuant to the
supplemental indenture or Officers' Certificate establishing the terms
of such series of Securities as provided in Section 2.01 or in the form
or forms of Security for such series.
SECTION 6.02. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If an Event of Default described in Section 6.01 shall have occurred
and be continuing with respect to the Securities of any series, then, and in
each and every such case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding, by notice in writing to the Company (and to the
Trustee if given by such Holders), may declare the entire principal of (and
premium, if any, on) all the Securities of such series then Outstanding and the
interest accrued thereon to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
The preceding paragraph is subject, however, to the condition
that if, at any time after the principal of the Securities of one or more series
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of such series and the principal of (and premium, if any, on) all the
Securities of such series which shall have become due otherwise than by
acceleration (with interest upon such principal and premium and, to the extent
that payment of such interest shall be enforceable under applicable law, on
overdue installments of interest at the same rate as the rate of interest (or at
the yield to Stated Maturity, in the case of Original Issue Discount Securities)
specified in the Securities of such series, to the date of such payment or
deposit) and such additional amount as shall be sufficient to cover the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, except as a result of negligence or bad faith, and if
any and all Events of Default under this Indenture with respect to such series,
other than the nonpayment of the principal of (and premium, if any, on) the
Securities of such series which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein -- then, and in
each and every such case, the Holders of a majority in aggregate principal
amount of all the Securities of such affected series then Outstanding, by
written notice to the Company and to the Trustee, may waive all defaults or
breaches with respect to such series and rescind and annul such declaration and
its consequences, but no such waiver, rescission and annulment shall extend to
or shall affect any subsequent default or breach or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration shall have been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
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be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such declaration; and payment
of the portion of the principal thereof as shall have become due and payable as
a result of such declaration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
SECTION 6.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if:
(1) default shall be made in the payment of any interest on
any of the Securities of any series when and as such interest shall
become due and payable, and such default shall have continued for a
period of 30 days, or
(2) default shall be made in the payment of the principal of
(or premium, if any, on) any of the Securities of any series when the
same shall have become due and payable, whether at the Stated Maturity
thereof or otherwise,
the Company shall, upon demand of the Trustee, pay to or deposit with the
Trustee, for the benefit of the Holders of the Securities of such series, the
whole amount then due and payable on such Securities, including all Coupons
appertaining thereto, for principal (and premium, if any) and interest (with
interest to the date of such payment upon overdue principal and premium and, to
the extent that payment of such interest shall be enforceable under applicable
law, on overdue installments of interest at the same rate as the rate of
interest (or at the yield to Stated Maturity, in the case of Original Issue
Discount Securities) specified in the Securities of such series to the date of
such payment or deposit); and, in addition thereto, such additional 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, except those incurred as a result of any such person's
negligence or bad faith.
Until such demand shall be made by the Trustee, the Company
may pay the principal of (and premium, if any) and interest on the Securities of
such series to the Holders of such Series.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute judicial proceedings for the collection of the amounts so due and
unpaid, may prosecute such proceedings to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities of
such series 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 the Securities of any
series shall occur and be continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the
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rights of the Holders of the Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 6.04. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities of
any series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium 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 of the
principal (and premium, if any) and interest (or if the Securities of
any series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) owing
and unpaid in respect of the Securities of each series, 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, except as a result of negligence or
bad faith) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, except as a
result of negligence or bad faith, and any other amounts due the Trustee under
Section 7.07.
Nothing herein contained shall be deemed to authorize the
Trustee, except in accordance with action taken under Article Nine, 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
of any series 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.
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SECTION 6.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture, or under the
Securities of any series or any Coupons appertaining thereto, may be prosecuted
and enforced by the Trustee without the possession of any of the Securities of
such series or such Coupons or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities and Coupons in respect of which
such judgment has been recovered.
In any proceedings brought by the Trustee (and also in any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party), the Trustee shall be held to represent all
the Holders of the Securities and Coupons appertaining thereto in respect to
which action was taken, and it shall not be necessary to make any Holders of
such Securities or Coupons parties to any such proceedings.
SECTION 6.06. APPLICATION OF MONEYS COLLECTED. Any moneys
collected by the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order, at the date or dates
fixed by the Trustee and, in the case of any distribution of such moneys on
account of the principal of (or premium, if any) or interest on the Securities
of such series, upon presentation of the several Securities and Coupons
appertaining thereto in respect of which moneys have been collected and the
notation thereon of such distribution if such principal, premium and interest be
only partially paid or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07;
SECOND: In case the principal of the Securities of such series
shall not then be due and payable, to the payment of interest on the
Securities of such series in the order of the maturity of the
installments of such interest, with interest (to the extent that 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 Stated Maturity, in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made
ratably to the Persons entitled thereto, without preference or
priority;
THIRD: In case the principal of the Securities of such series
shall then be due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
(and premium, if any) and interest, with interest upon overdue
principal and premium, and, to the extent that such interest has been
collected by the Trustee, upon overdue installments of interest at the
same rate as the rate of interest (or yield to Stated Maturity, in the
case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the
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whole amount so due and unpaid upon the Securities of such series, then
to the payment of such principal, premium and interest, without
preference or priority of principal or premium over interest, or of
interest over principal or premium, or of any installment of interest
over any other installment of interest, or of any Security of such
series, ratably to the aggregate of such principal, premium and
interest; and
FOURTH: To the Company or any other Person lawfully entitled
thereto.
SECTION 6.07. LIMITATION ON SUITS. Subject to Section 6.08, no
Holder of any Security of any series or of any Coupon shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official, or for any other remedy hereunder,
unless:
(1) such Holder shall have previously given written notice to
a Responsible Officer of the Trustee of a continuing Event of Default
with respect to the Securities of such series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have
made written request to the Trustee to institute such proceeding in its
own name as Trustee hereunder;
(3) such Holder or Holders shall have offered to the Trustee
indemnity satisfactory to the Trustee 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 shall have failed to institute such
proceeding; and
(5) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the Holders
of a majority in aggregate principal amount of the Securities of such
series then Outstanding;
it being understood and intended that no one or more of Holders of Securities of
any series or Coupons appertaining thereto shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder of the Securities or
the Coupons, or to obtain or to seek to obtain preference or priority over any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all Holders of
Securities of the affected series and Coupons.
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SECTION 6.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this
Indenture or any provision of any Security of any series, the Holder of a
Security of any series or Coupon appertaining thereto shall have the right,
which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and interest on such Security or Coupon on or after the
respective due dates expressed in such Security or Coupon or, in the case of
redemption, on the date of redemption, and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired or affected without
the consent of such Holder.
SECTION 6.09. RESTORATION OF RIGHTS AND REMEDIES. In case the
Trustee or any Holder shall have proceeded to enforce any right or remedy under
this Indenture and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustee or to such
Holder, then, and in every such case, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder; and all rights, remedies and powers of the Company, the Trustee and
the Holders shall continue as though no such proceeding had been taken.
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities and Coupons in the last paragraph of
Section 2.08, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of Securities or Coupons 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 6.12. CONTROL BY HOLDERS. The Holders of not less than
a majority in aggregate principal amount of the Securities of any series
affected then Outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
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(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to Section 7.01, the Trustee need not take any
action which might involve the Trustee in personal liability or be
unduly prejudicial to the Holders of the Securities of the affected
series not joining in the giving of such direction.
SECTION 6.13. WAIVER OF PAST DEFAULTS. Prior to the
declaration of acceleration of the Maturity of any Securities of any series as
provided by Section 6.02, the Holders of not less than a majority in aggregate
principal amount of the Securities of such series at the time Outstanding with
respect to which a default or breach or an Event of Default shall have occurred
and be continuing may on behalf of the Holders of all of the Securities of such
series waive any past default or breach or Event of Default and its
consequences, except a default or breach or Event of Default in the payment of
the principal of (or premium, if any) or interest on any Security of such
series.
Upon any such waiver, such default or breach 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 breach or Event of Default or impair any
right consequent thereon.
SECTION 6.14. UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any Security or Coupon by acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may 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; provided, however, that 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, of the
Securities of any series holding in the aggregate more than 10% in aggregate
principal amount of the Securities of such series then Outstanding, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest (including interest evidenced by a
Coupon) on any Security on or after the respective due dates expressed in such
Security or Coupon or, in the case of redemption, on or after the date of
redemption.
SECTION 6.15. WAIVER OF STAY OR EXTENSION LAWS. The Company
covenants (to the fullest 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 fullest extent that it may lawfully
do so)
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hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES. The
Trustee, prior to the occurrence of an Event of Default with respect to a
particular series of Securities and after the curing or waiving of all Events of
Default which may have occurred with respect to such series, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to a particular series of
Securities has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture relating
to such series, and use the same degree of care and skill in their exercise, as
a prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
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:
(a) prior to the occurrence of an Event of Default with
respect to a particular series of Securities and after the curing or
waiving of all Events of Default which may have occurred with respect
to such series:
(1) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this Indenture, and
the Trustee shall not be liable except for the performance of such
duties and obligations 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 the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any 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 provision 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 mathematical calculations or other facts stated
therein);
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(b) the Trustee shall not be liable for an 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; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith relating to
Securities of any series in accordance with the direction of the
Holders of not less than a majority in principal amount of the
Securities of such series then Outstanding 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,
with respect to the Securities of such series under this Indenture.
None of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any personal
financial liability in the performance of any duties hereunder, or in the
exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate security or indemnity
against such risk or liability is not reasonably assured to it.
SECTION 7.02. NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall give notice of all defaults with respect to the
Securities of such series actually known to any Responsible Officer of the
Trustee (i) if any unregistered Securities of such series are then Outstanding,
to the Holders thereof by publication at least once in an Authorized Newspaper
in the Borough of Manhattan, The City of New York,(ii) if any unregistered
Securities of such series are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee pursuant to Section 5.04(c)(ii)
by mailing such notice to such Holders at such addresses and (iii) if any
registered Securities of such series are then Outstanding, to the Holders
thereof by mailing such notice to such Holders at their addresses as they shall
appear on the Security Register, unless in each case such defaults shall have
been cured before the mailing or publication of such notice; 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 of the Securities of such series, or in the
payment of any sinking fund or analogous payment with respect to the Securities
of such series, the Trustee shall be protected in withholding such notice if and
so long as a Responsible Officer of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of the
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 6.01(4) with respect to Securities
of such series, no such notice to the 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 or condition which is, or after notice or lapse of
time or both would become, an Event of Default with respect to Securities of
such series.
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SECTION 7.03. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise
provided in Section 7.01:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Direction
or Company Request (unless other evidence in respect thereof is herein
specifically prescribed); and any resolution of the Board of Directors
shall be evidenced to the Trustee by a Certified Board Resolution;
(c) 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 accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses
and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default which may have occurred, 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, approval or other
paper or document, but the Trustee may, in its discretion reasonably
exercised, make further inquiry or investigation into such facts or
matters as it may see fit, and if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent
or attorney, during the Company's regular business hours, unless
requested in writing to do so by the Holders of a majority in aggregate
principal amount of Securities of any series then Outstanding;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is not, in the opinion of the
Trustee, reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture,
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the Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding; provided
further that the Trustee shall incur no 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 the Trustee hereunder;
(h) 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; and
(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.
SECTION 7.04. TRUSTEE NOT LIABLE FOR RECITALS IN INDENTURE OR
IN SECURITIES. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities of any series. The Trustee represents that
it is duly authorized to execute and deliver this Indenture and perform its
obligations hereunder. The Trustee shall not be accountable for the use or
application by the Company of any of the Securities of any series or of the
proceeds thereof.
SECTION 7.05. TRUSTEE, PAYING AGENT OR SECURITY REGISTRAR MAY
OWN SECURITIES. Subject to Sections 7.09 and 7.14, the Trustee or any paying
agent or Security Registrar with respect to any series of Securities, in its
individual or any other capacity, may become the owner or pledgee of Securities
of such series with the same rights it would have if it were not Trustee, paying
agent or Security Registrar with respect to such Securities.
SECTION 7.06. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST.
Subject to the provisions of Section 12.04 hereof, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but 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. So long as no Event of Default with respect
to Securities of any series shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon a Company
Direction.
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SECTION 7.07. COMPENSATION AND REIMBURSEMENT. The Company
covenants and agrees: (a) to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed in writing
from time to time between the Company and the Trustee for all services rendered
by it hereunder (which shall not be limited by any provisions of law in regard
to the compensation of a trustee of an express trust); (b) except as otherwise
expressly provided, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
agents, attorneys and counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith; and (c) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense including taxes (other than taxes based
upon, measured by or determined by the income of the Trustee) incurred without
negligence or bad faith on the part of the Trustee, 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 (whether asserted by
the Company, any Holder or any other Person) of liability in the premises. If
any property other than cash shall at any time be subject to a lien in favor of
the Holders, the Trustee, if and to the extent authorized by a receivership or
bankruptcy court of competent jurisdiction or by the supplemental instrument
subjecting such property to such lien, shall be entitled to, but shall have no
obligation whatsoever to, make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances
thereon.
SECTION 7.08. RIGHT OF TRUSTEE TO RELY ON AN OFFICERS'
CERTIFICATE WHERE NO OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof is herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such Certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.09. DISQUALIFICATION; CONFLICTING INTERESTS. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
SECTION 7.10. CORPORATE TRUSTEE REQUIRED; REQUIREMENTS FOR
ELIGIBILITY. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act,
having a combined capital and surplus of at least $50,000,000 and 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 Person
directly or indirectly controlling, controlled by or under common control with
the Company shall serve as Trustee. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section
7.11.
SECTION 7.11. RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT
OF SUCCESSOR. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the Successor Trustee in accordance with the
applicable requirement of Section 7.12.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 7.12 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series at the expense of the Company.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by the Holders of a majority in aggregate principal
amount of the Securities of such series then Outstanding by written notice
delivered to the Trustee and to the Company. If the instrument of acceptance by
a successor Trustee required by Section 7.12 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(d) If, at any time,
(1) the Trustee shall fail to comply with Section 7.09(a) with
respect to the Securities of any series after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a
Security of such series for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.10
and shall fail to resign after written request therefor by the Company
or by any such Holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
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then, in any such case (i) the Company by a Certified Board Resolution may
remove the Trustee with respect to all Securities of any or all series, as
appropriate or (ii) subject to Section 6.14, any Holder who has been a bona fide
Holder of a Security of an affected series for at least six months may, on
behalf of such Holder and all other Holders similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Certified Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of such series (it being understood that
any such successor Trustee may be appointed with respect to other Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 7.12. 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 aggregate principal amount
of the Securities of such series then Outstanding delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 7.12, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company with respect to the Securities of such series. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 7.12, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of such Holder
and all other Holders 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
(i) if any unregistered Securities of any affected series are then Outstanding,
to the Holders thereof by publication of such notice at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, (ii) if
any unregistered Securities of any affected series are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 5.04 by mailing such notice to such Holders at such
addresses (and the Trustee shall make such addresses available to the Company
for such purpose) and (iii) if any registered Securities of any affected series
are then Outstanding, to the Holders thereof by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register. If the
Company shall fail to give such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company. 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.
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SECTION 7.12. ACCEPTANCE BY SUCCESSOR TO TRUSTEE. (a) In case
of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more series, each successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee with respect to such applicable series of the Securities
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 with respect to such applicable series; but, on
the request of the Company or the successor Trustee, such retiring Trustee shall
upon payment of its charges then unpaid, execute, acknowledge and deliver an
instrument transferring to such successor Trustee all such rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to all of the Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to its
predecessor Trustee as provided in Section 7.11 an instrument accepting such
appointment, and thereupon the resignation or removal of the predecessor 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 predecessor Trustee with respect to all such Securities; but, on the
request of the Company or the successor Trustee, such predecessor Trustee, with
like effect as if originally named as Trustee herein, shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the predecessor Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such predecessor Trustee hereunder subject, nevertheless, to its
lien, if any, provided for in Section 7.07.
(c) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but less than all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute, acknowledge and
deliver an indenture supplemental hereto in which each successor Trustee shall
accept such appointment and which shall (i) contain such provisions as shall be
deemed 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 each series to which the appointment
of such successor Trustee relates, (ii) if the retiring Trustee is not retiring
with respect to the Securities of all series, 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 the series
as to which the retiring Trustee shall not be retiring shall continue to be
vested in the retiring Trustee, and (iii) add to or change any of the provisions
of this Indenture to the extent 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
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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 each series to which the appointment of such successor
Trustee relates, and such retiring Trustee shall duly assign, transfer and
deliver to each successor trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of each series to which the
appointment of such successor trustee relates.
(d) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(e) 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 7.13. SUCCESSOR TO TRUSTEE BY MERGER, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified otherwise 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 at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of the
particular series shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any
predecessor Trustee, and deliver such Securities so authenticated; and in case
at that time any of the Securities of such series shall not have been
authenticated, any successor to the Trustee with respect to the Securities of
such series may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in such
Securities or in this Indenture provided that the certificate of authentication
of the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities of the particular series in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 7.14. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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SECTION 7.15. APPOINTMENT OF ADDITIONAL AND SEPARATE TRUSTEES.
Whenever the Trustee shall deem it necessary in order to conform to any law of
any jurisdiction, or the Trustee shall be advised by counsel, satisfactory to
it, that it is necessary and in the interest of the Holders of Securities of any
series or in the event that the Trustee shall have been requested to do so by
the Holders of a majority in principal amount of the Securities of any series
then Outstanding, the Trustee and the Company shall execute and deliver an
indenture supplemental hereto and all other instruments and agreements necessary
or proper to constitute another bank or trust company, or one or more Persons
appointed by the Company, either to act as additional trustee or trustees
hereunder, jointly with the Trustee, or to act as separate trustee or trustees
hereunder, in any such case with such powers with respect to the affected series
of Securities as may be provided in such indenture supplemental hereto, and to
vest in such bank, trust company or Person as such additional trustee or
separate trustee, as the case may be, any property, title, right or power of the
Trustee with respect to the affected series of Securities deemed necessary or
advisable by the Trustee, subject to the provisions of this Section below set
forth. In the event the Company shall not have joined in the execution of such
indenture supplemental hereto within ten days after the receipt of a written
request from the Trustee so to do, or in case an Event of Default with respect
to the particular series of Securities shall occur and be continuing, the
Trustee may act under the foregoing provisions of this Section without the
concurrence of the Company; and the Company hereby appoints the Trustee its
agent and attorney-in-fact to act for it under the foregoing provisions of this
Section in either of such contingencies. The Trustee may execute, deliver and
perform any deed, conveyance, assignment or other instrument in writing as may
be required by any additional trustee or separate trustee for more fully and
certainly vesting in and confirming to it any property, title, right or powers
with respect to the affected series of Securities conveyed or conferred to or
upon such additional trustee or separate trustee, and the Company shall, upon
the Trustee's request, join therein and execute, acknowledge and deliver the
same; and the Company hereby makes, constitutes and appoints the Trustee its
agent and attorney-in-fact for it and in its name, place and stead to execute,
acknowledge and deliver any such deed, conveyance, assignment or other
instrument with respect to the affected series of Securities in the event that
the Company shall not itself execute and deliver the same within ten days after
receipt by it of such request so to do. Any supplemental indenture executed
pursuant to the provisions of this Section shall conform to the provisions of
the Trust Indenture Act as in effect as of the date of such supplemental
indenture.
Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act, and the Trustee shall act
with respect to a particular series of Securities, subject to the following
provisions and conditions:
(1) the Securities of such series shall be authenticated by
the Trustee and all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody, investment and
payment of moneys, shall be exercised solely by the Trustee;
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(2) all other rights, powers, duties and obligations with
respect to the Securities of such series conferred or imposed upon the
Trustee and such additional trustee or separate trustee or any of them
shall be conferred or imposed upon and exercised or performed by the
Trustee and such additional trustee or trustees and separate trustee or
trustees jointly, except to the extent that, under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations with
respect to the Securities of such series shall be exercised and
performed by such additional trustee or trustees or separate trustee or
trustees;
(3) no power hereby given to, or with respect to which it is
hereby provided may be exercised by, any such additional trustee or
separate trustee with respect to a particular series of Securities
shall be exercised hereunder by such additional trustee or separate
trustee except with the consent of the Trustee; and
(4) no trustee with respect to a particular series of
Securities hereunder shall be personally liable by reason of any act or
omission of any other trustee with respect to such series of Securities
hereunder.
If at any time the Trustee shall deem it no longer necessary in order to conform
to any such law or shall be advised by counsel that it is no longer so necessary
in the interest of the Holders of Securities of any series or in the event that
the Trustee shall have been requested to do so in writing by the Holders of a
majority in principal amount of the Securities of such series then Outstanding,
the Trustee and the Company shall execute and deliver an indenture supplemental
hereto and all other instruments and agreements necessary or proper to remove
any additional trustee or separate trustee with respect to such series. In the
event that the Company shall not have joined in the execution of such indenture
supplemental hereto, instruments and agreements, the Trustee may act on behalf
of the Company to the same extent provided above.
Any additional trustee or separate trustee with respect to any
series of Securities may at any time by an instrument in writing constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent which may be authorized by law, to do all acts and things and exercise
all discretions which it is authorized or permitted to do or exercise with
respect to such series, for and in its behalf and in its name. In case any such
additional trustee or separate trustee shall die, become incapable of acting,
resign or be removed, all the assets, property, rights, powers, trusts, duties
and obligations of such additional trustee or separate trustee with respect to
such series, as the case may be, so far as permitted by law, shall vest in and
be exercised by the Trustee, without the appointment of a new successor to such
additional trustee or separate trustee unless and until a successor with respect
to such series is appointed in the manner hereinbefore provided.
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Any request, approval or consent in writing by the Trustee to
any additional trustee or separate trustee of any series of Securities shall be
sufficient warrant to such additional trustee or separate trustee, as the case
may be, to take such action with respect to the particular series of Securities
as may be so requested, approved or consented to.
Each additional trustee and separate trustee appointed
pursuant to this Section shall be subject to, and shall have the benefit of,
Articles Six, Seven (other than Section 7.10) and Eight hereof and the following
Sections of this Indenture shall be specifically applicable to each additional
trustee and separate trustee: 5.04(a) (except to the extent that reference
therein is made to its eligibility under Section 7.10) and (b), 6.03, 7.01,
7.02, 7.09 and 7.14; provided, however, that no resignation of an additional or
separate trustee pursuant to Section 7.11 hereof shall be conditioned in any
sense whatever upon the appointment of a successor to such trustee.
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 8.01. EVIDENCE OF ACTION BY HOLDERS. (a) Whenever in
this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount Outstanding of the Securities of any series may take
any action (including the making of any demand or request, the giving of any
direction, notice, consent or waiver or the taking of any other action) the fact
that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by such Holders in person or by
agent or proxy appointed in writing, or (b) by the record of such Holders voting
in favor thereof at any meeting of such Holders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such Holders.
SECTION 8.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING
OF SECURITIES. Subject to the provisions of Sections 7.01, 7.03 and 9.05, proof
of the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
The ownership of a registered Security shall be proved by the
Security Register relating to the series or by a certificate of the Security
Registrar.
The ownership of an unregistered Security or any Coupon
attached to such Security at its issuance shall be proved by the production of
such Security or Coupon, or, with respect to unregistered Securities only, by a
certificate executed by any trust company, bank, broker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to
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be satisfactory, showing that at the date therein mentioned such person had on
deposit with such depositary, or exhibited to it, the Securities therein
described; or such facts may be proved by the certificate or affidavit of the
person holding such Security, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that such
ownership of any unregistered Security continues until (1) another certificate
or affidavit bearing a later date issued in respect of the same Security is
produced, (2) such Security is produced by some other Person or (3) such
Security is no longer Outstanding. The amount of unregistered Securities held by
any Person may also be proved in any other manner which the Trustee deems
sufficient.
The Trustee may require such additional proof of any matter
referred to in this Section 8.02 as it shall deem necessary.
The record of any meeting of Holders shall be proved in the
manner provided in Section 9.06.
SECTION 8.03. WHO MAY BE DEEMED OWNER OF SECURITIES. Prior to
due presentment for registration of transfer of a registered Security of any
series, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered,
or, in the case of unregistered Securities, the bearer thereof or the owner
thereof determined pursuant to Section 8.02, as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon made by anyone) for the purpose
of receiving payment of or on account of the principal of (and premium, if any)
and interest on such Security and for all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 8.04. SECURITIES OWNED BY COMPANY OR CONTROLLED OR
CONTROLLING COMPANIES DISREGARDED FOR CERTAIN PURPOSES. In determining whether
the Holders of the requisite aggregate principal amount Outstanding of
Securities of any series have concurred in any direction, consent or waiver
under this Indenture, Securities of such series which are owned by the Company
or any other obligor on the Securities of such series or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities of such series
shall be disregarded and deemed not to be Outstanding for the purposes of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities of such series which a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded. Securities of such series
so owned which have been pledged in good faith may be regarded as Outstanding
for the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Securities and that
the pledgee is not the Company or any other obligor on the Securities of such
series or a
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person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In the case
of a dispute as to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection for the Trustee.
SECTION 8.05. INSTRUMENTS EXECUTED BY HOLDERS BIND FUTURE
HOLDERS. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities of any series then
Outstanding specified in this Indenture in connection with such action, any
Holder of a Security of such series which is shown by the evidence to be
included in the Securities of the particular series the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
Corporate Trust Office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid, any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security, and of
any Security issued upon registration of transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Security or such other Security. Any action taken by
the Holders of the percentage in aggregate principal amount of the Securities of
any series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all such
Securities.
ARTICLE NINE
HOLDERS' MEETINGS AND CONSENTS
SECTION 9.01. PURPOSES FOR WHICH MEETING MAY BE CALLED. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to the provisions of this Article Nine for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Holders of Securities of such series pursuant
to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee with
respect to Securities of such series pursuant to the provisions of
Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount
Outstanding of Securities of such series under any other provision of
this Indenture or under applicable law.
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SECTION 9.02. CALL OF MEETING BY TRUSTEE. The Trustee may at
any time call a meeting of Holders of Securities of any series to take any
action specified in Section 9.01, to be held at such time and at such place in
New York, New York, or at such other location as the Trustee shall determine.
With respect to registered Securities of any series, notice of every such
meeting, setting forth the time and the place of such meeting, and in general
terms the action proposed to be taken at such meeting, shall be mailed to such
Holders at their addresses as they shall appear on the Security Register with
respect to such Securities. With respect to unregistered Securities of any
series, notice of every such meeting shall be published in an authorized
newspaper on two separate days. Such notice shall be provided not less than 20
nor more than 120 days prior to the date fixed for the meeting.
SECTION 9.03. CALL OF MEETINGS BY COMPANY OR HOLDERS. In case
at any time the Company, pursuant to a Certified Board Resolution, or the
Holders of at least 10% in aggregate principal amount of Securities of any
series then Outstanding, shall have requested the Trustee to call a meeting of
Holders of Securities of such series to take any action authorized in Section
9.01 by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have provided the notice
of such meeting within 20 days after receipt of such request, then the Company
or the Holders of such Securities in the amount above specified may determine
the time and the place in New York, New York, for such meeting and may call such
meeting by providing notice thereof as provided in Section 9.02.
SECTION 9.04. WHO MAY ATTEND AND VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of a particular series of Securities,
a Person shall (a) be a Holder of one or more Securities of such series or (b)
be a Person appointed by an instrument in writing as proxy by a Holder of one or
more Securities of such series. Subject to Section 8.01, the only Persons who
shall be entitled to be present or to speak at any meeting of Holders of a
particular series of Securities shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION 9.05. REGULATIONS MAY BE MADE BY TRUSTEE.
Notwithstanding any other provisions of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of Holders
of Securities of a particular series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
necessary. Except as otherwise permitted or required by any such regulations,
the holding of Securities of such series shall be proved in the manner specified
in Section 8.02 and the appointment of any proxy shall be proved in the manner
specified in Section 8.02.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in
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Section 9.03, in which case the Company or such Holders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting may be elected by vote of the
Holders of a majority in principal amount of Securities of the particular series
then Outstanding represented at the meeting and entitled to vote.
Subject to the provisions of Section 8.04, at any meeting each
Holder of Securities of the particular series or proxy entitled to vote shall
have one vote for each $1,000 principal amount of Securities of such series held
or represented by him; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Security of such series challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Securities of such series held by him or instruments in writing as aforesaid
duly designating him as the Person to vote on behalf of other Holders of
Securities of the particular series. At any meeting of Holders duly called
pursuant to the provisions of Section 9.02 or Section 9.03 the presence of
Persons holding or representing Securities of the particular series in an
aggregate principal amount outstanding sufficient to take action on the business
for the transaction of which such meeting was called shall constitute a quorum,
but, if less than a quorum be present, the meeting may be adjourned from time to
time by the Holders of a majority in principal amount outstanding of the
Securities of such series represented at the meeting and entitled to vote, and
the meeting may be held as so adjourned without further notice.
SECTION 9.06. MANNER OF VOTING AT MEETINGS AND RECORD TO BE
KEPT. The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders or proxies entitled to vote. The
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 9.02. The record shall be signed and
verified by the affidavits of the chairman and secretary of the meeting and one
of the copies shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 9.07. WRITTEN CONSENT IN LIEU OF MEETINGS. The written
authorization or consent of the requisite percentage herein provided of Holders
of Securities of any series entitled to vote at any meeting of Holders of
Securities of a particular series, evidenced as
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provided in Article Eight and filed with the Trustee, shall be effective in lieu
of a meeting of such Holders with respect to any matter provided for in this
Article Nine.
SECTION 9.08. NO DELAY OF RIGHTS BY MEETING. Nothing in this
Article Nine contained shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Holders of Securities of any series, or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders of Securities of such series under any
of the provisions of this Indenture or of the Securities of such series.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY
BE ENTERED INTO WITHOUT CONSENT OF HOLDERS. The Company, when authorized by a
Certified Board Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) for one
or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Eleven;
(b) to appoint one or more additional or separate trustees to
act under this Indenture in the manner and to the extent contemplated
by Section 7.15;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection of
the Holders of Securities of any or all series as the Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Securities of such series, and to make the occurrence,
or the occurrence and continuance, of a default of any such additional
covenants, restrictions, conditions or provisions a default or an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth with respect
to Securities of such series; provided, however, that in respect of any
such additional covenant, restriction, condition or provision with
respect to Securities of such series, such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such default or
may limit the right of the Holders of a
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majority in aggregate principal amount Outstanding of the Securities of
such series to waive such default;
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision unless such change or
elimination would not adversely affect such provision as applied to
such Securities created prior to the execution of such supplemented
indenture.
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; to convey, transfer, assign, mortgage
or pledge any property to or with the Trustee; or to make such other
provisions in regard to matters or questions arising under this
Indenture as shall not adversely affect the interests of Holders of
Securities of any series;
(f) to modify, amend or supplement this indenture to comply
with the provisions of Sections 4.05 and 11.01;
(g) to provide for the issuance of unregistered Securities, or
for the exchange ability of registered Securities of any series with
unregistered Securities of a series issued hereunder, or vice versa,
and to make all appropriate changes for such purpose;
(h) to provide for the issuance under this Indenture of
Securities of a series having any form or terms contemplated by
Sections 2.01 and 2.02; and
(i) 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 7.15.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee 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. The Trustee, subject to the
provisions of Sections 7.01 and 7.03, may regard an Officers' Certificate or
Opinion of Counsel as conclusive evidence that any such
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supplemental indenture with respect to any series of Securities complies with
the provisions of this Article Ten.
Any supplemental indenture authorized by the provisions of
this Section 10.01 may be executed by the Company and the Trustee without the
consent of the Holders of any Securities of any series then Outstanding,
notwithstanding any of the provisions of Section 10.02.
SECTION 10.02. MODIFICATION OF INDENTURE WITH CONSENT OF
HOLDERS OF A MAJORITY IN PRINCIPAL AMOUNT OF SECURITIES. With the consent
(evidenced as provided in Section 8.01) of the Holders of not less than a
majority in aggregate principal amount of the Securities of any series at the
time Outstanding, the Company, when authorized by a Certified Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto with respect to Securities of the particular
series (which shall conform to the provisions of the Trust Indenture Act as then
in effect) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental
indenture relating to such series or of modifying in any manner the rights of
the Holders of Securities of the particular series; provided, however, that no
such supplemental indenture shall (i) extend the Stated Maturity of any
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of any interest thereon, or reduce any premium payable upon
the redemption thereof, or reduce the amount of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of
Stated Maturity thereof pursuant to Section 6.02, or change the currency or
currency unit in which any Security is payable, without the consent of the
Holder of each Security so affected, or (ii) reduce the aforesaid majority in
aggregate principal amount of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of all Securities of each affected series.
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 series not so affected.
Upon a Company Request, accompanied by a Certified Board
Resolution authorizing the execution of any such supplemental indenture relating
to Securities of a particular series, and upon the filing with the Trustee of
evidence of the consent of Holders of Securities of the particular series as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
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It shall not be necessary for the Holders of Securities of a
particular series to approve under this Section 10.02 the particular form of any
proposed supplemental indenture with respect to such series of Securities, but
it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section 10.02, the
Company shall mail a notice thereof by first-class mail to the Holders of
registered Securities of each series affected thereby at their addresses as they
shall appear on the Security Register for such Securities, or, in the case of
unregistered Securities, shall give notice in the manner provided in Section
5.04 hereof, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to provide such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 10.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution and delivery of any supplemental indenture with respect to any series
of Securities pursuant to the provisions of this Article Ten, this Indenture
shall be and be deemed to be modified and amended with respect to the affected
series of Securities in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Holders of Securities of the series affected
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and
7.03, may regard an Officers' Certificate and Opinion of Counsel as conclusive
evidence that any such supplemental indenture with respect to any series of
Securities complies with the provisions of this Article Ten, but the Trustee
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 10.04. SECURITIES MAY BEAR NOTATION OF CHANGES BY
SUPPLEMENTAL INDENTURES. Securities authenticated and delivered after the
execution, pursuant to the provisions of this Article Ten, of any supplemental
indenture with respect to any series of Securities may, and shall if required by
the Trustee, bear a notation in the form approved by the Trustee as to any
matter provided for in such supplemental indenture. New Securities of the
affected series so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Company, to any modification of this Indenture
contained in any such supplemental indenture with respect to such series of
Securities may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of the particular series then
Outstanding.
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ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
SECTION 11.01. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS. The Company may consolidate with, or merge into, or sell, lease or convey
all or substantially all of its assets to, any person, provided that in any such
case, (i) either the Company shall be the continuing corporation, or the
corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by sale, lease or conveyance all or substantially all
of the Company's assets shall be a corporation organized and existing under the
laws of the United States of America, the United Kingdom, Italy, France,
Germany, Japan or Canada, or any political subdivision or state of any such
country, and such corporation shall expressly assume the due and punctual
payment of the principal of (and premium, if any) and any interest on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation, and (ii) immediately
after such merger or consolidation, or such sale, lease or conveyance, no Event
of Default or no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing.
The Company may not consolidate with, merge into, or sell,
lease or convey all or substantially all of its assets to, another Person, if as
a result of such consolidation, merger, sale, lease or conveyance, any property
owned by the Company or a Subsidiary immediately prior thereto would be subject
to a lien, unless (a) simultaneously therewith or prior thereto effective
provision shall be made for the securing (equally and ratably with any other
indebtedness of or guaranteed by the Company then entitled thereto) of the due
and punctual payment of the principal of and interest on all of the Securities
equally and ratably with (or prior to) the debt secured by such lien, or (b) the
Company would be permitted to create such lien pursuant to Section 4.06 or 4.08
without equally and ratably securing the Securities.
SECTION 11.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED. In
case of any such consolidation, merger, sale, conveyance or lease referred to in
Section 11.01 and upon the assumption by the successor corporation or entity, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment
of the principal of and interest on all of the Securities and the due and
punctual performance of all of the covenants and conditions of this Indenture to
be performed by the Company, such successor corporation or entity shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein as a party. Such successor corporation or entity thereupon may
cause to be signed, and may issue either in its own name or in the name of Corn
Products International, Inc. any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee, and, upon the order of such successor corporation or entity instead of
the Company and subject to all the terms, conditions or limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
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Securities which previously should have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such successor corporation or entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof. In the event of any such sale or conveyance, but not
any such lease, the Company or any successor corporation or entity which shall
theretofore have such in the manner described in this Article Eleven shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be dissolved and liquidated.
SECTION 11.03. OPINION OF COUNSEL TO BE GIVEN TRUSTEE. The
Trustee, subject to Sections 7.01 and 7.03, shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating that any
such consolidation, merger, sale, conveyance or lease and any such assumption
complies with the provisions of this Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. SATISFACTION AND DISCHARGE OF INDENTURE. If at
any time (a) the Company shall have delivered to the Trustee for cancellation
all Securities of any series theretofore authenticated and delivered (other than
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.08 or Securities for which
payment money has theretofore been deposited in trust and thereafter repaid to
the Company as provided in Section 12.05), or (b) all Securities of any series
not theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee as trust funds the entire amount sufficient to pay at
Stated Maturity or upon redemption all such Securities not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due at Stated Maturity or on such redemption date, as
the case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect (except the Company's obligations with respect to
such Securities under Sections 2.06, 2.08, 4.03, 4.05, 5.01, 7.07, 7.11, 7.12,
12.02 and Article 3 of this Indenture, so long as any principal of (and premium,
if any) or interest on such securities remains unpaid, and, thereafter, only the
Company's rights and obligations under Section 4.05 and 7.07) and the Trustee,
on demand of the Company accompanied by an Officers' Certificate and an Opinion
of Counsel as required by Section 14.05 and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 shall survive.
SECTION 12.02. DEFEASANCE AND DISCHARGE OF SECURITIES OR
CERTAIN OBLIGATIONS. Notwithstanding Section 12.01 and except as otherwise
specified as contemplated by Section 12.01, this Section 12.02 shall be
applicable to the Securities of any series:
(a) The Company shall be deemed to have paid and discharged
the entire indebtedness on all the Outstanding Securities of that
series, the provisions of this Indenture as it relates to such
Outstanding Securities (except as to (i) the rights of Holders of
Securities to receive, from the trust funds described in subparagraph
(1) below, payment of the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest on such
Securities on the Stated Maturity of such principal or installment of
principal or interest or any mandatory sinking fund payments or
analogous payments applicable to the Securities of that series on the
day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities, (ii) the Company's
obligations with respect to such Securities under Sections 2.06, 2.08,
4.03, 4.05, 5.01, 7.07, 7.11, 7.12, 12.02 and Article 3 of this
Indenture, so long as any principal of (and premium, if any) or
interest on such Securities remains unpaid and, thereafter, only the
Company's rights and obligations under Sections 4.05 and 7.07, and
(iii) the rights, powers, trusts, duties and immunities of the Trustee
with respect to such series) shall no longer be in effect, and the
Trustee, at the expense of the Company, shall, upon a Company
Direction, execute proper instruments acknowledging the same, provided
that the following conditions have been satisfied:
(1) With reference to this Section 12.02(a), the
Company has deposited or caused to be deposited with the
Trustee irrevocably (subject to the provisions of Section
12.02(c) and the last paragraph of Section 6.06), as trust
funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the
Securities of that series, (A) money in an amount, or (B)
Government Obligations which, through the payment of interest
and principal in respect thereof in accordance with their
terms, without consideration of any reinvestment thereof, will
provide not later than the opening of business on the due date
of any payment referred to in clause (i) or (ii) below of this
subparagraph (1) money in an amount, or (C) a combination
thereof, sufficient, after payment of all taxes in respect
thereof payable by the Trustee, 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 (i) the principal of (and premium, if any)
and each installment of principal (and premium, if any) and
interest on the Outstanding
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Securities of that series on the Stated Maturity of such
principal or installment of principal or interest or any date
fixed for redemption of such Outstanding Securities and (ii)
any mandatory sinking fund payments or analogous payments
applicable to Securities of such series on the day on which
such payments are due and payable in accordance with the terms
of this Indenture and of such Securities;
(2) the Company has paid or caused to be paid all
other sums payable in respect of such Securities, and such
payment and the deposit set forth in subparagraph (1) above
will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is
bound;
(3) no Event of Default or event which with the
giving of notice or lapse of time, or both, would become an
Event of Default with respect to the Securities of that series
shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 6.01(5) or event
which with the giving of notice or lapse of time, or both,
would become an Event of Default under Section 6.01(5) shall
have occurred and be continuing on the 91st day after such
date;
(4) the Company has delivered to the Trustee an
Opinion of counsel of recognized national standing or a ruling
of the Internal Revenue Service to the effect that Holders of
the Securities of that series will not recognize income, gain
or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to
federal income tax on the same amount and in the same manner
and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent in this Indenture provided for
relating to the defeasance and discharge of the entire
indebtedness on all Outstanding Securities of any such series
as contemplated by this Section 12.02(a) have been complied
with.
(b) The Company may omit to comply with and shall be released
from its obligations under any term, provision or condition set forth
in Sections 4.06, 4.07, 4.08 and Article Eleven, and Section 6.01(4)
with respect to Sections 4.06, 4.07, 4.08 and Article Eleven shall be
deemed not to be an Event of Default, in each case with respect to the
Securities of that series, provided, that the following conditions have
been satisfied:
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(1) with reference to this Section 12.02(b), the
Company has deposited or caused to be deposited with the
Trustee irrevocably subject to the provisions of Section
12.02(c) and the last paragraph of Section 6.06), as trust
funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the
Securities of that series, (A) money in an amount, or (B)
Government Obligations which, through the payment of interest
and principal in respect thereof in accordance with their
terms, without consideration of any reinvestment thereof, will
provide not later than the opening of business on the due date
of any payment referred to in clause (i) or (ii) below of this
subparagraph (1) money in an amount, or (C) a combination
thereof, sufficient, after payment of all taxes in respect
thereof payable by the Trustee, in the opinion of a nationally
recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge (i) the principal of (and
premium, if any) and each installment of principal (and
premium, if any) and interest on the Outstanding Securities of
that series on the Stated Maturity of such principal or
installment of principal or interest or any date fixed for
redemption of such Outstanding Securities and (ii) any
mandatory sinking fund payments or analogous payments
applicable to Securities of such series on the day on which
such payments are due and in accordance with the terms of this
Indenture and of such Securities;
(2) such deposit shall not cause the Trustee with
respect to the Securities of that series to have a conflicting
interest for purposes of the Trust Indenture Act with respect
to the Securities of any series;
(3) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a
party or by which it is bound;
(4) no Event of Default or event which with the
giving of notice or lapse of time, or both, would become an
Event of Default with respect to the Securities of that series
shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 6.01(5) or event
which with the giving of notice or lapse of time, or both,
would become an Event of Default under Section 6.01(5) shall
have occurred and be continuing on the 91st day after such
date;
(5) the Company has delivered to the Trustee an
Opinion of Counsel of recognized national standing to the
effect that Holders of the Securities of such series will not
recognize income, gain or loss for federal income tax purposes
as a result of such deposit and defeasance of certain
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obligations and will be subject to federal income tax on the
same amount and in the same manner and at the same times, as
would have been the case if such deposit and defeasance had
not occurred; and
(6) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent in this Indenture provided for
relating to the defeasance contemplated by this Section
12.02(b) have been complied with.
(c) The Trustee shall deliver or pay to the Company from time
to time upon a Company Direction any money or Government Obligations
held by it as provided in this Section 12.02 which, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are then
in excess of the amount thereof which then would have been required to
be deposited for the purpose for which such money or Government
Obligations were deposited or received.
SECTION 12.03. APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF SECURITIES. All moneys with respect to a particular series of
Securities deposited with the Trustee pursuant to Section 12.01 or Section 12.02
shall be held in trust and applied by it to the payment, either directly or
through any paying agent (including, except in the case of Section 12.02(a), the
Company acting as its own paying agent), to the Holders of Securities of such
series for the payment or redemption of which such moneys have been deposited
with the Trustee, of all sums due and to become due thereon for principal (and
premium, if any) and interest.
SECTION 12.04. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture, all moneys
then held by any paying agent (other than the Trustee, if the Trustee is serving
as a paying agent) under the provisions of this Indenture shall, upon a Company
Direction, be repaid to the Company or paid to the Trustee and thereupon such
paying agent shall be released from all further liability with respect to such
moneys.
SECTION 12.05. REPAYMENT OF MONEYS HELD BY TRUSTEE. Any moneys
deposited with the Trustee or any paying agent for the payment of the principal
of (and premium, if any) or interest on any Securities of any series and not
applied but remaining unclaimed by the Holders of Securities of that series for
two years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have become due and payable, shall be repaid
to the Company by the Trustee or such paying agent by Company Direction; and the
Holders of any of the Securities of that series entitled to receive Such payment
shall thereafter look only to the Company for the payment thereof and all
liability of the Trustee or such paying agent with respect to such moneys shall
thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once a week for two successive weeks (in each case
on any day of the week) in an
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Authorized Newspaper, a notice that such moneys have not been so applied and
that after a date named therein any unclaimed balance of said moneys then
remaining will be returned to the Company.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 13.01. INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES OF COMPANY EXEMPT 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, 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 them, 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 on 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 and delivery of this Indenture and the issue of
Securities hereunder.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 14.02. ACTS OF BOARD, COMMITTEE OR OFFICER OF
SUCCESSOR CORPORATION VALID. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee
or officer of the Company shall and may be done and
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performed with like force and effect by the like board, committee or officer of
any corporation that shall at that time be the successor of the Company.
SECTION 14.03. REQUIRED NOTICES OR DEMANDS. Unless otherwise
provided in this Indenture, any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
any Holders to or on the Company may be given or served by being deposited
postage prepaid in a post office letter box in the United States addressed
(until another address is filed by the Company with the Trustee), as follows:
Corn Products International, Inc., 6500 South Archer Boulevard, Bedford Park,
Illinois 60501, to the attention of the Treasurer. Any notice, direction,
request or demand by the Company or by any Holder to or upon the Trustee may be
given or made, for all purposes, by being deposited first-class postage prepaid
in a post office letter box in the United States or airmail postage prepaid if
sent from outside the United States, addressed to the Corporate Trust Office,
Attention: Corporate Trust Trustee Administration. Any notice required or
permitted to be mailed to a Holder of registered Securities of any series by the
Company or the Trustee pursuant to the provisions of this Indenture shall be
deemed to be properly mailed by being deposited postage prepaid in a post office
letter box in the United States addressed to such Holder at the address of such
Holder as shown on the Security Register for the particular series of
Securities. Any notice required or permitted to be given to a Holder of
unregistered Securities of any series shall be deemed to be properly given if
such notice is published in an Authorized Newspaper in New York, New York or
such other cities as shall be specified with respect to such Securities.
SECTION 14.04. INDENTURE AND SECURITIES TO BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture and each
Security shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be governed by and construed in accordance
with the laws of such State, without regard to conflicts of laws principles
thereof. The descriptive headings of the Articles and Sections of this Indenture
are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
SECTION 14.05. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL TO
BE FURNISHED UPON APPLICATION OR REQUEST BY THE COMPANY. Upon any application or
request by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) which relate to the authentication and delivery of the
Securities of any series, to the release or the release and substitution of
property subject to the lien of the Indenture, to the satisfaction and discharge
of the Indenture, or to any other action to be taken at the request or upon the
application of the Company have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or request
as to which the furnishing of any such document is specifically required by any
provision of this Indenture relating
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to such application or request, no additional certificate or opinion, as the
case may be, need be furnished.
Each certificate (other than an annual certificate delivered pursuant
to Section 4.09) or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include: (1) a statement that the
Person making such certificate or opinion has read such covenant or condition;
(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 such
Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 14.06. PAYMENTS DUE ON NON-BUSINESS DAYS. In any case
where the date of maturity of interest on or principal of any Security or the
date fixed for redemption of any Security shall not be a Business Day, then
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 date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 14.07. MONEYS OF DIFFERENT CURRENCIES TO BE
SEGREGATED. The Trustee shall segregate moneys, funds and accounts held by the
Trustee hereunder in one currency (or unit thereof) from any moneys, funds or
accounts in any other currencies (or units thereof), notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
SECTION 14.08. PAYMENT TO BE IN PROPER CURRENCY. Other than as
provided herein or in the Security, an Officers' Certificate or a supplemental
indenture, the obligation of the Company to make any payment of principal of
(and premium, if any) and interest, if any, on such Security shall not be
discharged or satisfied by any tender by the Company, or collection by the
Trustee, in any currency or currency unit other than that in which such Security
is denominated (the "Specified Currency"), except to the extent that the Trustee
timely holds for such payment the full amount of the Specified Currency when due
and payable. If any such tender or collection is made in other than the
Specified Currency, the Trustee may take such actions as it considers
appropriate to exchange such other currency or currency unit for the Specified
Currency. The costs and risks of any such exchange, including without limitation
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 the Specified Currency then due and payable and in no
circumstances shall the Trustee be liable therefor. The Company waives any
defense of payment based upon any such tender or collection which is not in the
Specified Currency, or which, when exchanged for the Specified Currency by the
Trustee, is less than the full amount of the Specified Currency then due and
payable.
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Notwithstanding the foregoing, if a Specified Currency is not
available to make any payment of principal of (and premium, if any) and
interest, if any, on a Security denominated in other than Dollars due to the
imposition of exchange controls or other circumstances beyond the Company's
control, the Company shall be entitled to satisfy its obligation by making such
payment in Dollars on the basis of the Market Exchange Rate on the date of such
payment, or if such Market Exchange Rate is not then available, on the basis of
the most recently available Market Exchange Rate. For any Specified Currency,
"Market Exchange Rate" shall mean the noon buying rate in New York, New York for
cable transfers of such Specified Currency as certified for customs purposes by
the Federal Reserve Bank of New York.
SECTION 14.09. PROVISIONS REQUIRED BY TRUST INDENTURE ACT TO
CONTROL. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed pursuant to Section 318(c) of the
Trust Indenture Act, the imposed duties shall control.
SECTION 14.10. INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
SECTION 14.11. 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.
The Trustee hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, CORN PRODUCTS INTERNATIONAL, INC. and THE
BANK OF NEW YORK have caused this Indenture to be duly executed, all as of the
day and year first above written.
CORN PRODUCTS INTERNATIONAL, INC.
By: /s/ James W. Ripley
----------------------------------------
Name: James W. Ripley
Title: Vice President - Finance and
Chief Financial Officer
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ T.C. Knight
----------------------------------------
Name: Thomas C. Knight
Title: Assistant Vice President
74
<PAGE> 1
EXHIBIT 4.2
THIS NOTE MAY BE TRANSFERRED IN WHOLE BUT NOT IN PART BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY SELECTED OR APPROVED BY THE COMPANY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
================================================================================
No. R-1 $200,000,000
CORN PRODUCTS INTERNATIONAL, INC.
8.45% SENIOR NOTES DUE 2009
CUSIP: 219023AA6
Corn Products International, Inc., a Delaware corporation (herein
called the "Company," which term includes any successor corporation under the
Indenture referred to herein), for value received, hereby promises to pay to:
CEDE & CO.
or registered assigns, the principal sum of
TWO HUNDRED MILLION AND 00/100 DOLLARS
on August 15, 2009 and to pay interest on such principal sum at the rate of
8.45% per annum.
The Company will pay interest from the later of August 23, 1999 or the
most recent Interest Payment Date (as defined below) to which interest has been
paid or duly provided for, semiannually on February 15 (beginning February 15,
2000) and on August 15 (each an "Interest Payment Date"), until the principal
hereof is otherwise paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture (as defined below), be paid to the holder (the
"Holder") of this Note (or one or more predecessor Notes) of record at the close
of business on the regular record date (the "Regular Record Date") for such
Interest Payment Date, which, except in the case of interest payable at Maturity
(as defined in the Indenture), shall be the February 1 or August 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date and, in the case of interest payable at Maturity, shall be the date such
that interest payable at Maturity is payable to the same Person to whom
principal on this Note is payable. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date by
virtue of his having been such Holder, and may be paid to the Holder of this
Note (or one or more predecessor Notes) of record at the close of business on a
special record date (the "Special Record Date") fixed by the Company for the
payment of such defaulted interest, notice whereof shall be given to Holders not
less than 15 days prior to such Special Record Date, all as more fully provided
in the Indenture.
Payment of the principal of this Note and the interest thereon will be
made at the office or agency of the Company in Chicago, Illinois the Borough of
Manhattan, City and State of New York, in such currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
<PAGE> 2
CORN PRODUCTS INTERNATIONAL, INC.
8.45% Senior Notes due 2009
This Note is one of a duly authorized issue of debt securities of the
Company (herein called the "Securities"), issuable in one or more series,
unlimited in aggregate principal amount except as may be otherwise provided in
respect of the Securities of a particular series, issued and to be issued under
and pursuant to an Indenture dated as of August 18, 1999 (the "Indenture"), duly
executed and delivered by the Company to The Bank of New York, as trustee (the
"Trustee"), and is one of a series limited in aggregate principal amount to
$200,000,000 and designated as 8.45% Senior Notes due 2009 (the "Notes").
Reference is hereby made to the Indenture for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of Securities (including Holders of the
Notes).
The Notes are subject to defeasance at the option of the Company as
provided in the Indenture.
As long as this Note is represented in global form (the "Global
Security") registered in the name of the Depositary or its nominee, except as
provided in the Indenture and subject to certain limitations therein set forth,
no Global Security shall be exchangeable or transferrable.
If an Event of Default (as defined in the Indenture) with respect to
the Notes shall occur and be continuing, the principal plus any accrued interest
may be declared due and payable in the manner and with the effect and subject to
the conditions provided in the Indenture.
The Indenture permits the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding of all series which are affected by such amendment or modification,
except that certain amendments which do not adversely affect the rights of any
Holder of the Securities may be made without the approval of Holders of the
Securities. No amendment or modification may, among other things, change the
Stated Maturity of any Security, reduce the principal amount thereof, reduce the
rate or change the time of payment of any interest thereon, or reduce the
aforesaid majority in aggregate principal amount of Securities of any series,
the consent of the Holders of which is required for any such amendment or
modification, without the consent of each Securityholder affected.
This Note is redeemable, in whole or in part, at any time at the option
of the Company, at a redemption price equal to the greater of (i)100% of the
principal amount of the Note being redeemed and (ii) as determined by an
Independent Investment Banker (as defined), the sum of the present values of the
remaining scheduled payments of principal and interest on the Note being
redeemed from the redemption date to the maturity date discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at a discount rate equal to the Treasury Rate (as defined) plus
25 basis points.
We will also pay the accrued and unpaid interest on the Note to the
redemption date. Notice of any redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each holder of the notes to
be redeemed.
In the case of any partial redemption, the trustee will select the
particular notes for redemption on a pro rata basis, by lot or by such other
method as the trustee in its sole discretion deems to be fair and appropriate,
although no Note of $1,000 in principal amount at maturity or less will be
redeemed in part. If any Note is to be redeemed in part only, the notice of
redemption relating to the Note will state the portion of the principal amount
of the Note to be redeemed. A new Note in principal amount at maturity equal to
the unredeemed potion of the Note will be issued in the name of the holder of
the Note upon cancellation of the original Note.
"Treasury Rate" means, with respect to any redemption date, (i) the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15 (519)" or any successor publication which is published weekly
by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the applicable maturity date, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Treasury Rate will be interpolated or extrapolated
from the yields on a straight line basis, rounding to the nearest month) or (ii)
if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date. The Treasury Rate will be calculated on
the third business day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be used, at the time
of selection and in accordance
<PAGE> 3
with customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Notes to be
redeemed.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the arithmetic average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third business day before such redemption date, as published in the daily
statistical release (or any successor release) by the Federal Reserve Bank of
New York and designated "composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not available
or does not contain such prices on such business day, the arithmetic average of
the Reference Treasury Dealer Quotations for such redemption date.
"Reference Treasury Dealer" means each of Lehman Brothers Inc. and
Salomon Smith Barney Inc. and their respective successors. If any of the
Reference Treasury Dealers ceases to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company may
substitute another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the trustee by such Reference Treasury Dealer at 5:00 p.m. (New York
City time) on the third business day before such redemption date.
Notwithstanding any provision in the Indenture or any provision of this
Note, the Holder of this Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency
herein prescribed.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
All terms used in this Note which are defined in the Indenture have the
meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
CORN PRODUCTS INTERNATIONAL, INC.
By: /s/ Konrad Schlatter
-----------------------------------
Name: Konrad Schlatter
Title: Chairman and Chief Executive
Officer
Attest:
By: /s/ Marcia E. Doane
-----------------------------------
Name: Marcia E. Doane
Title: Corporate Secretary
This is one of the Securities of the
series designated herein referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK, AS TRUSTEE
Dated: August 23, 1999
By: /s/ T. C. Knight
-----------------------------------
Authorized Signatory
<PAGE> 5
ASSIGNMENT FORM
================================================================================
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
--------------------------
--------------------------
Insert assignee's soc. sec. or tax I.D. no.
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
and all rights thereunder and irrevocably appoint ______________________________
________________________________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Dated:_________________ _________________________________________
_________________________________________
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS IT
APPEARS ON THE FIRST PAGE OF THE WITHIN NOTE.
THE SIGNATURE MUST BE GUARANTEED BY AN "ELIGIBLE GUARANTOR INSTITUTION"
THAT IS A MEMBER OR PARTICIPANT IN A "SIGNATURE GUARANTEE PROGRAM" (E.G., THE
SECURITIES TRANSFER AGENTS MEDALLION PROGRAM, THE STOCK EXCHANGE MEDALLION
PROGRAM OR THE NEW YORK STOCK EXCHANGE, INC. MEDALLION PROGRAM).
