As filed with the Securities and Exchange Commission on March 12,
1999
Registration No. 333-____
============================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------------
CBRL GROUP, INC.
(Exact name of registrant as specified in its charter)
Tennessee 62-1749513
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
--------------
305 Hartmann Drive
Lebanon, Tennessee 37087
(615) 444-5533
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
James F. Blackstock, Esq.
Vice President, Secretary and General Counsel
CBRL Group, Inc.
106 Castle Heights Avenue North
Lebanon, Tennessee 37087
(615) 444-5533
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
Copies to:
Clifford A. Roe, Jr., Esq. Robert F. Wall, Esq.
Susan B. Zaunbrecher, Esq. R. Cabell Morris, Jr., Esq.
Dinsmore & Shohl LLP Winston & Strawn
255 East Fifth Street 35 West Wacker Drive
Cincinnati, Ohio 45202 Chicago, Illinois 60601
(513) 977-8200 (312) 558-5600
---------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of the Registration
Statement as determined by market conditions.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box: ______
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box: X
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ____
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ____
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box: ___
___________________
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Maximum Amount of
Class of Aggregate Registration Fee
Securities Offering Price(1)(2)
to be Registered
- ---------------- ------------------- -----------------
Debt Securities $250,000,000 $69,500
(1) Or, if any Debt Securities are to be issued at a discount,
such greater amount as shall result in an aggregate offering price
to the public as shall not exceed $250,000,000.
(2) Estimated solely for purpose of determining the amount of
registration fee pursuant to Rule 457(o) under the Securities Act
of 1933.
---------------------
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
======================================================
Subject to completion, dated March 12, 1999
Prospectus
CBRL GROUP, INC.
$250,000,000
Debt Securities
_________________
We intend to offer from time to time up to $250,000,000 aggregate
principal amount of our Debt Securities (the "Debt Securities") on
terms determined by market conditions at the time of sale.
Each issue of the Debt Securities may vary as to aggregate
principal amount, maturity date or dates, public offering or
purchase price or prices, interest rate or rates and timing of
payments thereof, provisions for redemption, sinking fund
requirements, if any, and other terms. Debt Securities may be
issued as individual securities in registered form without coupons
or as one or more global securities in registered form. In
addition, the method of distribution may differ with respect to
each issue of the Debt Securities.
The Prospectus Supplement which will be delivered in connection
with each issue of the Debt Securities to be offered will set
forth the specific terms with regard to the Debt Securities in
respect of which this Prospectus is being delivered.
The information in this Prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This Prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Investing in the Debt Securities involves certain risks. See
"Risk Factors."
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these Debt
Securities or determined if this Prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
We may sell the Debt Securities to or through underwriters or
dealers, directly to other purchasers or through agents. Unless
otherwise set forth in the Prospectus Supplement, (i) any such
underwriters will include Merrill Lynch, acting alone or as
representative of a group of underwriters, and (ii) any such
agents will include Merrill Lynch. The Prospectus Supplement will
set forth the names of such underwriters, dealers or agents, if
any, and any applicable commissions or discounts.
MERRILL LYNCH & CO.
____________________________________________________
March ____, 1999.
ABOUT THIS PROSPECTUS
This Prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission utilizing a "shelf"
registration process. Under this shelf process, we may sell the
Debt Securities described in this Prospectus in one or more
offerings up to a total principal amount or initial purchase price
of $250,000,000. This Prospectus provides you with a general
description of the securities we may offer. Each time we sell
securities, we will provide a Prospectus Supplement that will
contain specific information about the terms of that offering.
The Prospectus Supplement may also add, update or change
information contained in this Prospectus. You should read both
this Prospectus and any Prospectus Supplement together with
additional information described under the heading "Where to Find
More Information."
WHERE TO FIND MORE INFORMATION
Government Filings. We file annual, quarterly and special reports
and other information with the Securities and Exchange Commission
(the "SEC"). You may read and copy any documents that we file at
the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference room. The public
reference room imposes a nominal fee for copying requested
documents. Our SEC filings are also available to you free of
charge at the SEC's website at http://www.sec.gov.
Information Incorporated by Reference. The SEC allows us to
"incorporate by reference" the information we file with them,
which means that we can disclose important information to you be
referring you to those documents. The information incorporated by
reference is considered to be part of this Prospectus, and
information that we file later with the SEC will automatically
update and supercede previously filed information, including
information included in this document.
We incorporate by reference the documents listed below and any
future filings we will make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
this Offering has been completed.
1. The Company's Annual Report on Form 10-K, which includes
sections from its Annual Report to Shareholders for the fiscal
year ended July 31, 1998.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended October 30, 1998.
3. The Company's Reports on Form 8-K dated December 17, 1998,
January 15, 1999, and March 5, 1999.
You may request free copies of these filings by writing or
telephoning our principal executive offices:
James F. Blackstock, Esq.
Vice President, Secretary and General Counsel
CBRL Group, Inc.
P.O. Box 787
Lebanon, Tennessee 37088-0787
Telephone: (615) 444-5533
CBRL GROUP, INC.
We are a holding company that, through our wholly-owned
subsidiaries, owns and operates over 430 restaurants under the
Cracker Barrel Old Country Store, Logan's Roadhouse, Carmine
Giardini's Gourmet Market and La Trattoria Ristorante brand names.
We are publicly traded over-the-counter and quoted on the Nasdaq
National Market under the symbol "CBRL."
Cracker Barrel Old Country Store. Cracker Barrel Old Country
Store, Inc. was incorporated in 1969 and has been in continuous
operation since that time. We became the parent of Cracker Barrel
at year-end 1998 through a corporate reorganization into a holding
company structure.
We operate 386 full service Cracker Barrel Old Country Store
restaurants and gift shops that are primarily located in the
Southeast, Midwest, Midatlantic and Southwest United States. Most
of our stores are located along interstate highways, although
there are approximately 10 stores that are located at "tourist
destinations." Our restaurants serve breakfast, lunch and dinner
and feature homestyle country cooking prepared at the premises
from our own recipes using quality ingredients and emphasizing
authentic country cooking at a moderate price point. Cracker
Barrel stores are constructed in a rustic country store design and
feature a separate retail area offering a wide variety of
decorative and functional giftware as well as candies, jellies and
other specialty food items.
Our store management typically consists of a general manager, four
associate managers and a retail manager who are responsible for
approximately 100 employees on two shifts. The relative
complexity of operating a Cracker Barrel restaurant and gift shop
requires an effective management team at the individual store
level. In order to motivate store managers to improve sales and
operational efficiency, we have a bonus plan designed to provide
store management with an opportunity to share in the pre-tax
profits of their store. To assure that individual stores are
operated at a high level of quality, we emphasize the selection
and training of store managers and have local district management
to support individual store managers and regional management to
support individual district managers.
The store management recruiting and training program is rigorous,
but we believe it is important for the selection of those
applicants best suited to manage our store operations. Candidates
who successfully pass the screening process are required to
complete a nearly ten-week training program consisting of about
seven weeks of in-store training and three weeks of training at
Cracker Barrel's corporate facilities in Lebanon, Tennessee. Our
program provides new managers the opportunity to become familiar
with Cracker Barrel's operations, management objectives, controls
and evaluation criteria before assuming actual management
responsibility.
For its purchasing and distribution needs, Cracker Barrel
negotiates directly with food vendors as to price and other
material terms of most food purchases. We purchase the majority
of our food products and restaurant supplies on a cost-plus basis
through a distributor headquartered in Nashville, Tennessee with
custom distribution centers in Lebanon, Tennessee; Dallas, Texas;
Gainesville, Florida; and Belcamp, Maryland. The distributor is
responsible for placing food orders and warehousing and delivering
food products to Cracker Barrel stores. This distributor is an
independent corporation and is not affiliated with us. In
addition, certain perishable food items are purchased locally by
our store management.
We opened 50 new Cracker Barrel stores in fiscal 1998 and plan to
open 40 stores in fiscal 1999. Our Cracker Barrel subsidiary owns
most of its store properties, and it is our preference to
corporately own our stores. All 386 Cracker Barrel stores are
company-operated, and none are franchised. The prototypical store
size is approximately 10,000 square feet with 184 seats in the
restaurant. Currently, the approximate cost of opening a new
store is:
Land and Sitework $1,250,000
Building $800,000
Equipment $550,000
---------
Total cost for a new store: $2,600,000
=========
Logan's Roadhouse. On February 16, 1999, we completed our
acquisition of Logan's Roadhouse, Inc, for which we paid
approximately $179,000,000. Logan's operates 45 company-owned
"Logan's Roadhouse" restaurants and five franchised restaurants in
13 states.
Logan's Roadhouse restaurants incorporate a lively, country
"honky-tonk" atmosphere reminiscent of an American roadhouse. They
are constructed of rough-hewn cedar siding in combination with
bands of corrugated metal outlined in double-striped, red neon.
The interiors are decorated with hand-painted murals depicting
typical scenes from American roadhouses of the 1940s and 1950s,
concrete and wooden planked floors and neon signs and feature
Wurlitzer(TM) jukeboxes playing contemporary country hits. The
restaurants also feature a display cooking grill and an
old-fashioned meat counter displaying steaks, ribs, seafood and
salads, and include a spacious, comfortable bar area with a
large-screen television.
Specialty appetizers include fried green tomatoes, hot wings, baby
back rib baskets and nachos. The dinner menu features an
assortment of specially seasoned, choice USDA steaks, which are
all extra-aged, cut by hand on the premises and prepared over an
open gas-fired mesquite grill. Guests also may choose from baby
back ribs, seafood, mesquite grilled shrimp, mesquite grilled pork
chops, grilled and barbecued chicken and an assortment of
hamburgers, salads and sandwiches. All dinner entrees include
dinner salad, made-from-scratch yeast rolls and a choice of brown
sugar and cinnamon sweet potato, baked potato, fries or rice pilaf
at no additional cost. Logan's Roadhouse also offers an express
lunch menu that includes specially priced items guaranteed to be
served in less than 15 minutes. Prices range from approximately
$4.00 to $7.95 for lunch items and from approximately $7.95 to
$16.95 for dinner entrees.
Carmine Giardini's Gourmet Market and La Trattoria Ristorante.
Carmine Giardini's Gourmet Market was formed approximately 26
years ago as a prime meat market and has more recently expanded
into full-service gourmet market operations. At this time, there
are two gourmet market locations, in Palm Beach Gardens and Ft.
Lauderdale, Florida, in addition to the restaurant, La Trattoria
Ristorante, which was added to the Palm Beach Gardens store
approximately five years ago.
The gourmet markets consist of separate departments, each with a
strong Italian flavor and featuring such items as:
- - seafood
- - meat
- - prepared foods
- - deli
- - bakery
- - produce
- - cheese
- - pizza
- - wine
The markets also feature off-premises catering, gift baskets and,
in the case of the Palm Beach Gardens store, a casual cafe. La
Trattoria Ristorante is an up-scale Italian restaurant including a
full-service bar and table service delivered in a casual dining
atmosphere.
The Palm Beach Gardens gourmet market and restaurant comprise
approximately 15,000 square feet with 230 restaurant seats. The
Ft. Lauderdale gourmet market is approximately 6,000 square feet.
The Palm Beach Gardens store will serve as the model for a
prototype that we expect to develop in three new locations in
South Florida during fiscal 2000.
SUMMARY OF FINANCIAL INFORMATION
The following summary of financial information was derived from
and is qualified by reference to the financial statements and
other information and data contained or incorporated by reference
in the Company's Annual Report on Form 10-K for the fiscal year
ended July 31, 1998 and the Company's Quarterly Report on Form 10-Q
for the period ended October 30, 1998. See "Where to Find More
Information -- Information Incorporated by Reference."
<TABLE>
<CAPTION>
Fiscal Year Ended Three
Months Ended
July 29, July 28, August 2, August 1, July 31, October 31, October 30,
1994 1995 1996 1997 1998 1997 1998
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Statement of
Operations Data:
Net revenue $640,899 $783,093 $943,287 $1,123,851 $1,317,104 $312,755 $351,496
Income before one-
time charge, income
taxes and change in
accounting principle 90,568 105,333 116,579 137,457 164,730 37,553 41,415
Income before income
taxes and change
in accounting
principle 90,568 105,333 102,380 137,457 164,730 37,553 41,415
Income before
change in
accounting principle 56,959 66,043 63,515 86,598 104,136 23,733 26,133
Net income $ 57,947 $ 66,043 $ 63,515 $ 86,598 $ 104,136 $ 23,733 $ 26,133
Earnings per share:
Before one-time
charge and change
in accounting
principle:
Basic $ .95 $ 1.10 $ 1.20 $ 1.42 $ 1.68 $ .39 $ .42
Diluted $ .94 $ 1.09 $ 1.19 $ 1.41 $ 1.65 $ .38 $ .42
Before change in
accounting
principle:
Basic $ .95 $ 1.10 $ 1.05 $ 1.42 $ 1.68 $ .39 $ .42
Diluted $ .94 $ 1.09 $ 1.04 $ 1.41 $ 1.65 $ .38 $ .42
Net income:
Basic $ .97 $ 1.10 $ 1.05 $ 1.42 $ 1.68 $ .39 $ .42
Diluted $ .96 $ 1.09 $ 1.04 $ 1.41 $ 1.65 $ .38 $ .42
Weighted average
shares:
Basic 59,749 59,986 60,352 60,824 61,832 61,279 62,151
Diluted 60,601 60,554 60,811 61,456 63,028 62,326 62,667
Balance sheet data:
Working capital $ 60,721 $ 43,600 $ 23,289 $ 60,654 $ 60,804 $ 62,710 $ 35,709
Total assets 530,064 604,515 676,379 828,705 992,108 873,473 991,098
Long-term liabilities 33,060 31,666 27,011 79,516 84,712 79,483 84,688
Total shareholders'
equity 429,846 496,083 566,221 660,432 803,374 693,132 796,179
</TABLE>
<PAGE>
Book value per share as of January 29, 1999: $13.193
Market value per share on January 29, 1999: $22.875
RISK FACTORS
Before you invest in our Debt Securities you should be aware that
the investment involves various risks, including those described
below. You should carefully consider these risk factors, together
with all of the other information included in this prospectus,
before you decide whether to purchase our Debt Securities.
Some of the information in this prospectus contains forward-looking
statements that involve substantial risks and
uncertainties. You can identify these statements by forward-looking words
such as "may," "will," "expect," "anticipate,"
"believe," "estimate," and "continue" or similar words. You should
read statements that contain forward-looking words carefully
because they: (1) discuss our future expectations; (2) contain
projections of our future results of operations or of our
financial condition; or (3) state other "forward-looking"
information. We believe it is important to communicate our
expectations to our investors. However, there may be events in the
future that we cannot accurately predict or which we cannot
control. The risk factors listed in this section, as well as any
cautionary language in this prospectus, provide examples of risks,
uncertainties and events that may cause our actual results to
differ materially from the expectations we describe in our
forward-looking statements. Before you invest in our Debt
Securities, you should be aware that the occurrence of unforeseen
events, like the events described in these risk factors and
elsewhere in this prospectus, could have a material adverse effect
on our business, operating results and financial condition.
Growth Strategy
We have experienced substantial growth and expect to continue a
rapid pace of development by opening approximately 40 Cracker
Barrel Old Country Store restaurants in each of fiscal 1999 and
2000. We also expect to open 13 Logan's Roadhouse restaurants in
fiscal 1999 and 11 Logan's Roadhouse restaurants in fiscal 2000,
as well as three Carmine Giardini's Gourmet Markets in fiscal
2000. Our ability to achieve this restaurant opening schedule
will depend on a number of factors, many of which are beyond our
control, including:
- - the availability of suitable locations;
- - the ability to hire, train and retain qualified management and
restaurant personnel;
- - the availability of appropriate financing;
- - the ability to obtain necessary governmental permits and
approvals; and
- - general economic conditions.
No assurance can be given that we will be able to continue to open
all our planned new restaurants or that our new restaurants can be
operated as profitably as our existing restaurants. Moreover, the
opening of additional restaurants in our existing market areas
could attract customers from our existing restaurants.
Risks Related To Acquisition Strategy and Integrating Acquired
Businesses
Although we are not currently pursuing any significant additional
acquisitions of restaurant companies, we continue to evaluate
opportunities for acquisition of other restaurant companies. No
assurance can be given that any acquisition or investment will be
made or, if made, that it will enhance our business. If we
determine to make any significant acquisitions of, or investments
in, other businesses, we may be required to sell additional debt
or equity securities or obtain additional credit facilities.
We consummated our purchase of Logan's Roadhouse on February 16,
1999. This acquisition is the largest we have made to date and
the process of integrating Logan's Roadhouse, including
interfacing its information and accounting systems and its
restaurant management with our operations, will present
significant challenges to our management. While Logan's Roadhouse
is, and will continue to be, operated separately, acquisitions the
size and scope of Logan's Roadhouse involve a number of risks that
could adversely affect our operating results, including:
- - the diversion of management's attention;
- - the assimilation of certain operations and personnel of the
acquired company;
- - the potential loss of key employees;
- - the amortization of acquired intangible assets;
- - the risks associated with unanticipated assumed liabilities and
problems; and
- - the risks of managing businesses or entering markets in which we
have limited expertise.
Competition
The restaurant business is highly competitive and is often
affected by changes in the taste and eating habits of the public,
local and national economic conditions affecting spending habits,
and population and traffic patterns. Restaurant industry segments
overlap and often provide competition for widely diverse
restaurant concepts. The principal basis of competition in the
industry is the quality and price of the food products offered.
Restaurant location, quality and speed of service, concept,
advertising and the attractiveness of facilities are also
important.
There are a large number of restaurants catering to the public,
including several franchised operations in the restaurant
industry, which are substantially larger and have greater
financial and marketing resources than we do and which compete
directly and indirectly in all areas in which we operate. In
addition, this is a time of low unemployment, and there is active
competition for management and restaurant personnel. In the
United States, there are fewer persons per operating restaurant
site now than in the past, and this competitive trend does not
appear to be ending. Likewise, there is strong competition for
attractive commercial real estate sites suitable for restaurants.
Seasonality
Historically our profits have been lower in the second fiscal
quarter than in the first and third fiscal quarters and highest in
our fourth fiscal quarter. We attribute these variations
primarily to the decrease in interstate tourist traffic during the
winter months and the increase in interstate tourist traffic
during the summer months.
Government Regulation
We are subject to various federal, state and local laws affecting
our business. Each of our restaurants is subject to licensing and
regulation by a number of state or municipal authorities, which
may include health, sanitation, safety and fire agencies and in
the case of the Carmine's and Logan's Roadhouse concepts,
alcoholic beverage control. Difficulties in obtaining or failures
to obtain the required licenses or approvals could delay or
prevent the development of a new restaurant in a particular area.
Further, the failure to operate a restaurant in compliance with
applicable regulations could result in substantial fines or
restaurant closings.
We are subject to federal and state environmental regulations, but
these have not had a material negative effect on our operations.
More stringent and varied requirements of local and state
governmental bodies with respect to zoning, land use and
environmental factors could delay or prevent development of new
restaurants in particular locations. We are subject to numerous
state business operations and labor and wages and hour laws and to
the Fair Labor Standards Act which governs matters including
minimum wages, overtime and other working conditions. We are also
subject to other laws, such as the Americans With Disabilities Act
and various family leave mandates. The Company does not expect any
further significant increases in payroll expenses as a result of
the recently-mandated increases in the minimum wage, but is
uncertain of the effects of those increases on other expenses as
vendors are impacted by higher minimum wage standards. Further,
members of Congress are considering introduction of bills
increasing the federal minimum wage, and any future increase in
minimum wages would increase our costs of operations.
Food Service Industry
Food service businesses are often affected by changes in consumer
tastes, national, regional and local economic conditions and
demographic trends. The performance of individual restaurants may
be adversely affected by factors such as traffic patterns,
demographics and the type, number and location of competing
restaurants. Multi-unit food service businesses like ours can
also be adversely affected by publicity resulting from service
problems, employee relations, poor food quality, illness, injury
or other health concerns or operating issues stemming from one
restaurant or a limited number of restaurants.
Dependence on frequent deliveries of fresh produce and meat
subjects food service businesses to the risk that shortages or
interruptions in supply could adversely affect the availability,
quality and cost of ingredients. In addition, unfavorable trends
or developments involving inflation, increased food, labor and
employee costs (including increases in hourly wage and benefits),
regional weather conditions and the availability of experienced
management and hourly employees may also adversely affect the food
service industry. Changes in economic conditions affecting our
customers could reduce traffic in some or all of our restaurants
or impose practical limits on pricing. Our continued success will
depend in part on our ability to anticipate, identify and respond
to changing conditions.
From time to time we are the subject of complaints and litigation
from customers alleging illness, injury or other food quality,
health or operational concerns. We also are the subject of
complaints or allegations from employees alleging wrongful
treatment or termination in violation of their "protected class"
status. Our Carmine's and Logan's Roadhouse concepts may be
subject in certain states to "dram-shop" statutes, which generally
allow a person injured by an intoxicated person to recover damages
from an establishment that wrongfully served alcoholic beverages.
We believe that the lawsuits, claims and other legal matters to
which we are subject in the ordinary course of our business are
not material to our financial condition or results of operations.
However, an existing or future lawsuit or claim could result in a
decision against us that could have an adverse effect on our
business.
Year 2000
The Year 2000 problem exists because many computer systems and
programs utilize two digits rather than four digits to define
years for computer calculations. After December 31, 1999, any
computer recognizing a two digit date may incur system failure or
miscalculate date-sensitive information. The failure due to this
Year 2000 problem of our computers or those of third parties that
we deal with could have an adverse effect on our operations.
We began Year 2000 preparations in fiscal 1998. These
preparations include identification and assessment of our computer
systems that could be affected by the Year 2000 issue. In
addition, we have made an effort to determine what further
testing, remedial action and contingency plans may be necessary to
avoid Year 2000 problems. We are in the process of identifying
and analyzing internal Year 2000 deficiencies, and we have
prepared an inventory of systems designated as critical to our
operations. We have begun correction of those deficiencies found
and anticipate completion of the Year 2000 analysis and
remediation by the end of September, 1999. We are also contacting
critical suppliers of products and services to determine the
extent to which we may be vulnerable to their failures and to
assist them in resolving their own Year 2000 compliance issues.
Although we have taken action to remedy internal and external Year
2000 problems, there can be no assurance that we will not
experience internal systems failures or that our products and
services suppliers, or the utilities and government agencies
serving the communities in which we operate, will not experience
systems failures which could have an adverse impact on us and our
operations.
Lack of Public Market for Debt Securities
The Company does not intend to apply for a listing of the Debt
Securities on any securities exchange. We do not know if an
active public market for the Debt Securities will develop or, if
developed, will continue. If an active public market does not
develop or is not maintained, the market price and liquidity of
the Debt Securities may be adversely affected. The Company cannot
make any assurances regarding the liquidity of the market for the
Debt Securities, the ability of holders to sell their Debt
Securities or the price at which holders may sell their Debt
Securities.
USE OF PROCEEDS
Unless we specify otherwise in the applicable Prospectus
Supplement, the net proceeds from the sale of the Debt Securities
will be used for general corporate purposes, including capital
expenditures, working capital, acquisitions and the repayment of
indebtedness. We have not allocated a specific portion of the net
proceeds for any particular use at this time. Until we apply the
net proceeds for specific purposes, we may invest the net proceeds
in marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
Our consolidated ratio of earnings to fixed charges for each of
the latest five full fiscal years and the three-month periods
ended October 31, 1997 and October 30, 1998, respectively, is set
forth below.
<PAGE>
<TABLE>
<CAPTION>
Fiscal Year Ended Three
Months Ended
July 29, July 28, August 2, August 1, July 31, October 31, October 30,
1994 1995 1996 1997 1998 1997 1998
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges 14.7 17.5 16.0 15.8 16.2 14.2 16.0
</TABLE>
<PAGE>
For the purpose of calculating the ratio of earnings to fixed
charges, "earnings" consist of net income before income taxes and
fixed charges, excluding any capitalized interest, and "fixed
charges" consist of interest whether or not capitalized,
amortization of debt discount and expense, and one-third of all
rent expense for operating leases (considered representative of
the interest factor).
DESCRIPTION OF DEBT SECURITIES
Our Debt Securities will be issued under an indenture (the
"Indenture") between us and Bankers Trust Company, as trustee (the
"Trustee"). The form of Indenture is included as an exhibit to
the Registration Statement of which this Prospectus is a part.
The following is a summary of certain provisions of the Indenture
and does not purport to be complete. Because the following is
only a summary of the Indenture and the Debt Securities, it does
not contain all information that you may find useful. For further
information about the Indenture and the Debt Securities, you
should read the Indenture. We refer to the Debt Securities we are
offering under this Prospectus and the accompanying Prospectus
Supplement as the "Offered Debt Securities." As used in this
Prospectus, the terms we, us and our mean CBRL Group, Inc.
General
The Indenture does not limit the amount of debentures, notes or
other evidences of indebtedness that we may issue under the
Indenture. Debt Securities may be issued under the Indenture from
time to time in one or more series. The Debt Securities will
constitute unsecured obligations of ours and will rank equally
with all our other unsecured and unsubordinated obligations.
You should look in the Prospectus Supplement for the following
terms of the Offered Debt Securities:
- - the designation of the Offered Debt Securities;
- - the aggregate principal amount of the Offered Debt Securities;
- - the price at which the Offered Debt Securities will be issued;
- - the date or dates on which the Offered Debt Securities will
mature and the right, if any, to extend such dates or dates;
- - the rate or rates (or the method by which such rate will be
determined) at which the Offered Debt Securities will bear
interest, if any, and the dates on which any such interest will be
payable;
- - the place or places where the principal of, interest and
premium, if any, on the Offered Debt Securities will be payable;
- - the period or periods, if any, within which, the price or prices
of which, and the terms and conditions upon which, the Offered
Debt Securities may be redeemed, in whole or in part, at our
option or at your option;
- - whether the Offered Debt Securities will be issued in registered
form or bearer form and, if Offered Debt Securities in bearer form
are issued, restrictions applicable to the exchange of one form
for another and to the offer, sale and delivery of Offered Debt
Securities in bearer form;
- - whether and under what circumstances we will pay additional
amounts on Offered Debt Securities held by a person who is not a
U.S. person in respect of any tax, assessment or governmental
charge withheld or deducted, and if so, whether we will have the
option to redeem such Offered Debt Securities rather than pay such
additional amounts;
- - provisions for a sinking, or purchase or analogous fund; and
- - any other specific terms of the Offered Debt Securities,
including any additional events of default or covenants provided
for with respect to Offered Debt Securities, and any terms which
may be required by or advisable under United States laws or
regulations.
- - You may present Debt Securities for exchange and you may present
registered Debt Securities for transfer in the manner, at the
places and subject to the restrictions set forth in the Debt
Securities and the Prospectus Supplement. We will provide you
those services without charge, although you may have to pay any
tax or other governmental charge payable in connection with any
exchange or transfer, as set forth in the Indenture. Debt
Securities in bearer form and any related coupons will be
transferable by delivery.
Debt Securities will bear interest at a fixed rate or a floating
rate. Debt Securities bearing no interest or interest at a rate
that, at the time of issuance, is below the prevailing market
rate, may be sold at a discount below their stated principal
amount. Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par that are treated as having been
issued at a discount for United States federal income tax purposes
will be described in the applicable Prospectus Supplement.
There are no covenants or other specific provisions in the
Indenture to afford protection to you in the event of a highly
leveraged transaction or a change in control of CBRL Group, Inc.,
except to the limited extent described under the headings "Certain
Covenants Limitations on Liens," "Certain Covenants Limitation on
Sale and Lease-Back Transactions" and "Consolidation, Merger,
Conveyance or Transfer" below. Such covenants or provisions are
not subject to waiver by our Board of Directors without the
consent of the holders of not less than a majority in principal
amount of the Debt Securities of each series as described under
"Modification of the Indenture" below.
Certain Covenants
The restrictions described in this section apply to the Offered
Debt Securities unless the Prospectus Supplement states otherwise.
The following definitions from the Indenture are used in this
section of the Prospectus:
The Indenture defines "Attributable Debt" as the present value,
determined as set forth in the Indenture, of the obligation of a
lessee for rental payments for the remaining term of any lease.
The Indenture defines "Consolidated Subsidiary" and "Consolidated
Subsidiaries" to mean a subsidiary or subsidiaries of ours the
accounts of which are consolidated with ours in accordance with
generally accepted accounting principles.
The Indenture defines "Funded Indebtedness" as all Indebtedness of
a corporation that would, in accordance with generally accepted
accounting principles, be classified as funded indebtedness, but
in any event including all Indebtedness, whether secured or
unsecured, of such corporation having a final maturity (or
renewable or extendable at the option of such corporation for a
period ending) more than one year after the date as of which
Funded Indebtedness is to be determined.
The Indenture defines "Indebtedness" as any and all of our
obligations for money borrowed that in accordance with generally
accepted accounting principles would be reflected on our balance
sheet as a liability as of the date of which Indebtedness is to be
determined.
The Indenture defines "Lien" as any mortgage, pledge, security
interest or other lien or encumbrance.
The Indenture defines "Net Tangible Assets" as the total amount of
assets of a corporation, both real and personal (excluding
licenses, patents, patent applications, copyrights, trademarks,
trade names, goodwill, experimental or organizational expense and
other like intangibles, treasury stock and unamortized discount
and expense), less the sum of:
- - all reserves for depletion, depreciation, obsolescence and/or
amortization of such corporation's property (other than those
excluded as provided above) as shown by the books of such
corporation (other than general contingency reserves, reserves
representing mere appropriations of surplus and reserves to the
extent related to intangible assets that have been excluded in
calculating Net Tangible Assets as described above); and
- - all indebtedness and other current liabilities of such
corporation other than Funded Indebtedness, deferred income taxes,
reserves that have been deducted pursuant to the above bullet
point, general contingency reserves and reserves representing mere
appropriations of surplus and liabilities to the extent related to
intangible assets that have been excluded in calculating Net
Tangible Assets as provided above.
The Indenture defines "Principal Property" to mean, as of any
date, any parcel or groups of parcels of real estate or one or
more physical facilities or depreciable assets, the net book value
of which exceeds 2% of our Net Tangible Assets and those of the
Consolidated Subsidiaries.
The Indenture defines "Sale and Lease-Back Transactions" as any
arrangement with any person (other than us) providing for the
leasing by us or a Consolidated Subsidiary of any Principal
Property (except for temporary leases for a term of not more than
three years), that we or any of our Consolidated Subsidiaries have
sold or transferred or are about to sell or transfer to such
person.
Limitation on Liens. The Indenture states that, unless the terms
of any series of Debt Securities provide otherwise, we will not
and we will not permit any Consolidated Subsidiary to issue,
assume or guarantee any Indebtedness secured by a Lien upon or
with respect to any Principal Property or on the capital stock of
any Consolidated Subsidiary that owns Principal Property unless:
- - we provide that the Offered Debt Securities will be secured by
such Lien equally and ratably with any and all other obligations
and indebtedness secured thereby; or
- - the aggregate amount of all of our Indebtedness and of the
Indebtedness of our Consolidated Subsidiaries, together with all
Attributable Debt in respect of Sale and Lease-Back Transactions
existing at such time (with the exception of transactions that are
not subject to the limitation described in "Limitation on Sale and
Lease-Back Transactions" below), does not exceed 10% of our Net
Tangible Assets and those of the Consolidated Subsidiaries.
This limitation on Liens will not apply to:
- - any Lien existing on any Principal Property on the date of the
Indenture;
- - any Lien created by a Consolidated Subsidiary in our favor or in
favor of any wholly-owned Consolidated Subsidiaries;
- - any Lien existing on any asset of any corporation at the time
such corporation becomes a Consolidated Subsidiary or at the time
such corporation is merged or consolidated with or into us or a
Consolidated Subsidiary;
- - any Lien on any asset that exists at the time of the acquisition
of the asset;
- - any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of
acquiring or improving such asset, if such Lien attaches to such
asset concurrently with or within 180 days after its acquisition
or improvement; or
- - any refinancing, extension, renewal or replacement of any of the
Liens described under the heading "Limitations on Liens" if the
principal amount of the Indebtedness secured thereby is not
increased and is not secured by any additional assets.
Limitation on Sale and Lease-Back Transactions. The Indenture
states that, unless the terms of any series of Debt Securities
provide otherwise, neither we nor any Consolidated Subsidiary may
enter into any Sale and Lease-Back Transaction. Such limitation
will not apply to any Sale and Lease-Back Transaction if:
- - the net proceeds to us or such Consolidated Subsidiary from the
sale or transfer equals or exceeds the fair value (as determined
by our Board of Directors) of the property so leased;
- - we or such Consolidated Subsidiary would be entitled to incur
Indebtedness secured by a Lien on the property to be leased as
described under the heading "Limitation on Liens" above; or
- - within 90 days of the effective date of any such Sale and
Lease-Back Transaction, we apply an amount equal to the fair value
(as determined by our Board of Directors) of the property so
leased to the retirement of our Funded Indebtedness.
Events of Default
An "Event of Default" is defined under the Indenture with respect
to Debt Securities of any series as being:
- - our default in the payment of any installment of interest, when
due, on any of the Debt Securities of such series and such default
continues for a period of 30 days;
- - our default in the payment, when due, of the principal of (and
premium, if any, on) any of the Debt Securities of such series
(whether at maturity, upon redemption, upon acceleration or
otherwise);
- - our default in the performance or observance of any other term,
covenant or agreement contained in the Indenture (other than a
covenant included in the Indenture solely for the benefit of a
series of Debt Securities other than such series) for a period of
90 days after written notice, as provided in the Indenture;
- - our default or any subsidiary's default on other Indebtedness
that totals over a specified minimum amount, and the lenders of
such Indebtedness shall have taken affirmative action to enforce
the payment of such Indebtedness, and this repayment obligation
remains accelerated for 10 days after we receive a notice of
default;
- - the occurrence of certain events of bankruptcy, insolvency or
reorganization; or
- - our failure to comply with any other covenant the noncompliance
with which would specifically constitute an Event of Default with
respect to Debt Securities of such series.
If an Event of Default due to the default in payment of principal
of, or interest on, any series of Debt Securities or due to the
default in the performance of any covenants or agreements
applicable to the Debt Securities of such series but not
applicable to all outstanding Debt Securities, occurs and is
continuing, either the Trustee or the holders of 25% in principal
amount of the Debt Securities of such series may then declare the
principal of all Debt Securities of such series and interest
accrued thereon to be due and payable immediately.
If an Event of Default due to the default in the performance of
any covenant or agreement in the Indenture applicable to all
outstanding Debt Securities or due to certain events of
bankruptcy, insolvency and reorganization occurs and is
continuing, either the Trustee or the holders of 25% in principal
amount of all Debt Securities then outstanding (treated as one
class) may declare the principal of all Debt Securities and
interest accrued thereon to be due and payable immediately.
Upon certain conditions, such declarations of an Event of Default
may be annulled and past defaults may be waived (except a
continuing default in payment of principal of (or premium, if any)
or interest on the Debt Securities) by the holders of a majority
in principal amount of the Debt Securities of such series (or all
series, as the case may be) then outstanding.
The holders of a majority in principal amount of the outstanding
Debt Securities of any series may direct the time, method and
place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee,
provided that such direction may not be in conflict with any rule
of law or the Indenture. Before proceeding to exercise any right
or power under the Indenture at the direction of such holders, the
Trustee is entitled to receive from such holders reasonable
security or indemnity against the costs, expenses and liabilities
that might be incurred by acting in compliance with any such
direction.
The Indenture requires us to furnish to the Trustee annually a
statement of certain of our officers to the effect that, to the
best of their knowledge, we are not in default of the performance
of the terms of the Indenture or, if they have knowledge that we
are in default, specifying the default.
The Indenture provides that no holder of Debt Securities of a
series issued under the Indenture may institute any action against
us under the Indenture (except actions for payment of overdue
principal or interest) unless all of the following occurs:
- - the holder gives written notice to the Trustee of the continuing
Event of Default;
- - the holders of at least 25% in aggregate principal amount of
such series of Debt Securities make a written request to the
Trustee to pursue the remedy;
- - such holder or holders offer the Trustee indemnity satisfactory
to the Trustee against any costs, liability or expense that may be
incurred;
- - the Trustee does not comply with the request within 60 days
after receiving the request and the offer of indemnity; and
- - during such 60 day period, the holders of a majority in
aggregate principal amount of such series of Debt Securities do
not give the Trustee a direction that is inconsistent with the
request.
The Indenture requires the Trustee to give all of the holders of
outstanding Debt Securities of any series, notice of any default
by us with respect to that series, unless the default has been
cured or waived. Except in the case of a default in the payment
of principal of (and premium, if any) or interest on any
outstanding Debt Securities of that series, the Trustee is
entitled to withhold such notice in the event that a committee of
responsible officers of the Trustee in good faith determines that
withholding such notice is in the interest of the holders of the
outstanding Debt Securities of that series.
Discharge and Defeasance
The Indenture will cease to be of further effect for Debt
Securities of a series (except for certain obligations listed
below) if:
- - we pay or cause to be paid the principal of and interest on all
of the Debt Securities of such series as and when the same become
due and payable;
- - all Debt Securities of such series previously authenticated and
delivered are delivered by us to the Trustee for cancellation; or
- - the Debt Securities of such series will become due and payable,
or by their terms, 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
- - we irrevocably deposit in trust with the Trustee, cash or U.S.
government obligations (which through the payment of interest and
principal thereof in accordance with their terms will provide
sufficient cash) or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification delivered to the
Trustee, to pay principal and interest on all Debt Securities of
such series when due and payable and any mandatory sinking fund
payments when due and payable, and we also pay or cause to be paid
all other sums payable by us under the Indenture with respect to
the Debt Securities of such series.
The Trustee will execute documents acknowledging the satisfaction
and discharge of the Indenture with respect to the Debt Securities
of such series upon our presentation to the Trustee of certain
officers' certificates and counsel opinions as provided under the
Indenture.
In addition to the discharge of the Indenture as described above,
we will be deemed to have paid and discharged the entire
indebtedness on all Debt Securities of a series (except for
certain obligations listed below) on the 121st day after the
irrevocable deposit described below if:
- - we irrevocably deposit in trust with the Trustee solely for the
benefit of the holders of the Debt Securities of such series, cash
or U.S. government obligations (which through the payment of
interest and the principal thereof in accordance with their terms
will provide sufficient cash) or a combination thereof, sufficient
in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification delivered
to the Trustee, to pay the principal and interest on all Debt
Securities of such series when due and payable and any mandatory
sinking fund payments when due and payable;
- - such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which
we are a party or by which we are bound;
- - we have delivered to the Trustee an officers' certificate or an
opinion of counsel satisfactory to the Trustee to the effect that
the holders of the Debt Securities of such 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
- - we have delivered to the Trustee an officers' certificate and an
opinion of counsel, each stating that all conditions precedent
relating to the defeasance have been complied with and the opinion
of counsel also states that such deposit does not violate
applicable law.
Our obligations under the Indenture for Debt Securities discharged
in the manner described under the heading "Discharge and
Defeasance" continue with respect to:
- - the rights of registration of transfer and exchange of Debt
Securities of such series and our rights of optional redemption,
if any;
- - the substitution of mutilated, defaced, destroyed, lost or
stolen Debt Securities of such series;
- - the rights of holders of Debt Securities of such series to
receive payments of principal and interest on the original stated
due dates (but not upon acceleration) and the remaining rights of
the holders to receive mandatory sinking funds payments, if any;
- - the rights and immunities of the Trustee under the Indenture;
- - the rights of the holders of the Debt Securities of such series
with respect to the property deposited with the Trustee payable to
all or any of them; and
- - our obligation to maintain certain offices and agencies with
respect to the Debt Securities of such series.
Modification of the Indenture
The Indenture provides that we may enter into supplemental
indentures with the Trustee without the consent of the holders of
Debt Securities to:
- - secure any Debt Securities;
- - evidence the assumption by a successor corporation of our
obligations;
- - add covenants for the protection of the holders of the Debt
Securities;
- - cure any ambiguity or correct any inconsistency in the
Indenture;
- - establish the form or terms of Debt Securities of any series;
and
- - evidence the acceptance of appointment by a successor trustee.
The Indenture also contains provisions permitting us and the
Trustee, with the consent of the holders of not less than a
majority in principal amount of Debt Securities of all series then
outstanding and affected, to add any provisions to, or change in
any manner or eliminate any of the provisions of, the Indenture or
modify in any manner the rights of the holders of the Debt
Securities of each series so affected, provided that we and the
Trustee may not, without the consent of the holders affected
thereby:
- - extend the final maturity of any Debt Security of such series;
- - reduce the principal amount of or interest on, any Debt
Securities of such series;
- - reduce the amount of any Debt Securities of such series, which
is an original issue discount security, payable upon acceleration
or provable in bankruptcy;
- - impair the right to institute suit for the enforcement of any
payment on any Debt Securities of such series when due; or
- - reduce the above-stated percentage of outstanding Debt
Securities of such series the consent of whose holders is
necessary to modify or amend and to waive certain provisions of or
defaults under the Indenture.
Consolidation, Merger, Conveyance or Transfer
We may, without the consent of the Trustee or the holders of Debt
Securities, consolidate or merge with, or convey, transfer or
lease our properties and assets substantially as an entirety to
any other corporation, provided that any successor corporation is
a corporation organized under the laws of the United States of
America or any state thereof and that such successor corporation
expressly assumes all our obligations under the Debt Securities
and that certain other conditions are met, and, thereafter, except
in the case of a lease, we will be relieved of all obligations
thereunder.
Applicable Law
The Debt Securities and the Indenture will be governed by and
construed in accordance with the laws of the State of New York.
Concerning the Trustee
Bankers Trust Company is the Trustee under the Indenture.
GLOBAL SECURITIES
We may issue the Debt Securities of any series in the form of one
or more fully registered global Debt Securities (a "Global
Security"). We anticipate that any Global Securities will be
deposited with, or on behalf of, The Depository Trust Company, New
York, New York ("DTC"), and that such Global Securities will be
registered in the name of Cede & Co., DTC's nominee. In that
case, one or more Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of
the aggregate principal amount of outstanding registered Debt
Securities of the series to be represented by such Global
Securities. Unless and until DTC exchanges a Global Security in
whole for Debt Securities in definitive registered form, the
Global Security may not be transferred except as a whole by DTC to
DTC's nominee, by DTC's nominee to DTC or another nominee of DTC
or by DTC or any such nominee to a successor of DTC or a nominee
of such successor.
The specific terms of the depositary arrangement with respect to
any portion of a series of Debt Securities to be represented by a
Global Security will be described in the Prospectus Supplement
relating to such series. We anticipate that the following
provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a Global Security will be
limited to persons that have accounts with DTC ("participants")
or persons that may hold interests through participants. Upon
issuance of a Global Security, DTC will credit, on its book-entry
registration and transfer system, the participants' accounts with
the respective principal or face amounts of the securities
represented by such Global Security beneficially owned by such
participants. The accounts to be credited shall be designated by
any dealers, underwriters or agents participating in the
distribution of such securities. Ownership of beneficial interest
in such Global Security will be shown on, and the transfer of such
ownership interest will be effected only through, records
maintained by DTC (with respect to interests of participants) and
on the records of participants (with respect to interests of
persons holding through participants). The laws of some states
may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and
such laws may impair the ability to own, transfer or pledge
beneficial interest in Global Securities.
So long as DTC, or its nominee, is the registered owner of such
Global Security, DTC or such nominee, as the case may be, will be
considered the sole owner or holder of all securities represented
by such Global Security for all purposes under the Indenture.
Except as set forth below, owners of beneficial interests in a
Global Security will not be entitled to have the securities
represented by such Global Security registered in their names,
will not receive or be entitled to receive physical delivery of
such securities in definitive form and will not be considered the
owners or holders thereof under the Indenture. Accordingly, each
person owning a beneficial interest in a Global Security must rely
on the procedures of DTC and, if such person is not a participant,
on the procedure of the participant through which such person owns
its interest, to exercise any rights of a holder under the
Indenture. We understand that under existing industry practices,
if we request any action of holders or if an owner of a beneficial
interest in a Global Security desires to give or to take any
action that a holder is entitled to give or take under the
Indenture, DTC would authorize the participants holding the
relevant beneficial interest to give or take such action, and such
participants would authorize beneficial owners owning through such
participants to give or take such action or would otherwise act
upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on Debt
Securities represented by a Global Security registered in the name
of DTC or its nominee will be made to DTC or such nominee, as the
case may be, as the registered owner of such Global Security.
None of us, the Trustee or any paying agent for such Debt
Securities will have any responsibility or liability for any
aspect of the records to or payments made on account of beneficial
ownership interests in such Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
We expect that DTC, upon receipt of any payment of principal,
premium or interest, will immediately credit participants'
accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such
Global Security as shown on the records of DTC. We also expect
that payments by participants to owners of beneficial interest in
such Global Security held through such participants will be
governed by standing instructions and customary practices, as is
now the case with the securities held for the accounts of
customers in bearer form registered in "street names," and will be
the responsibility of such participants.
If DTC is at any time unwilling or unable to continue as
depositary and we do not appoint a successor depositary within
ninety days or an Event of Default has occurred and is continuing
with respect to such Debt Securities, we will issue such
securities in definitive form in exchange for such Global
Security. In addition, we may at any time and in our sole
discretion determine not to have the Debt Securities of a series
represented by one or more Global Securities and, in such event,
we will issue Debt Securities of such series in definitive form in
exchange for the Global Securities representing such Debt
Securities.
Further, if we so specify with respect to the Debt Securities of a
series, an owner of a beneficial interest in Global Securities
representing such Debt Securities may, on terms acceptable to us
and DTC, receive such Debt Securities in definitive form. In any
such instance, an owner of a beneficial interest in such Global
Security will be entitled to have Debt Securities equal in
principal amount to such beneficial interest registered in its
name and will be entitled to physical delivery of such Debt
Securities in definitive form. Debt Securities issued in
definitive form will, except as set forth in the applicable
Prospectus Supplement, be issued in denominations of $1,000 and
integral multiples of $1,000 in excess thereof and will be issued
in registered form only without coupons.
Year 2000
The following information has been provided by DTC:
DTC management is aware that some computer applications, systems,
and the like for processing data ("Systems") that are dependent
upon calendar dates, including dates before, on, and after January
1, 2000, may encounter "Year 2000 problems." DTC has informed its
Participants and other members of the financial community (the
"Industry") that is has developed and is implementing a program so
that its Systems, as the same relate to the timely payment of
distributions (including principal and income payments) to
securityholders, book-entry deliveries, and settlement of trades
within DTC ("DTC Services"), continue to function appropriately.
This program includes a technical assessment and a remediation
plan, each of which is complete. Additionally, DTC's plan
includes a testing phase, which is expected to be completed within
appropriate time frames.
However, DTC's ability to perform properly its services is also
dependent upon other parties, including but not limited to issuers
and their agents, as well as third party vendors from whom DTC
licences software and hardware, and third party vendors on whom
DTC relies for information or the provision of services, including
telecommunication and electrical utility service providers, among
others. DTC has informed the Industry that it is contacting (and
will continue to contact) third party vendors from whom DTC
acquires services to: (i) impress upon them the importance of
such services being Year 2000 compliant; and (ii) determine the
extent of their efforts for Year 2000 remediation (and, as
appropriate, testing) of their services. In addition, DTC is in
the process of developing such contingency plans as it deems
appropriate.
According to DTC, the foregoing information with respect to DTC
has been provided to the Industry for informational purposes only
and is not intended to serve as a representation, warranty, or
contract modification of any kind.
PLAN OF DISTRIBUTION
We may sell Offered Debt Securities:
- - through agents;
- - through underwriters;
- - through dealers; or
- - directly to purchasers (through a specific bidding or auction
process or otherwise).
Offers to purchase Debt Securities may be solicited by agents
designated by us from time to time. Any such agent involved in
the offer or sale of the Offered Debt Securities will be named,
and any commissions payable by us to such agent will be set forth,
in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. Any such agent
may be deemed to be an underwriter, as that term is defined in the
Securities Act of 1933, as amended (the "1933 Act"), of the Debt
Securities so offered and sold. Agents may be entitled under
agreements that may be entered into with us to indemnification by
us against certain liabilities, including liabilities under the
1933 Act, and may be customers of, engaged in transactions with,
or perform services for, us in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale of
Offered Debt Securities, we will enter into an underwriting
agreement with them at the time of sale to them and we will set
forth in the Prospectus Supplement relating to such offering their
names and the terms of our agreement with them. The underwriters
may be entitled, under the relevant underwriting agreement, to
indemnification by us against certain liabilities, including
liabilities under the 1933 Act and such underwriters or their
affiliates may be customers of, engage in transactions with, or
perform service for, us in the ordinary course of business. Only
underwriters named in the Prospectus Supplement are deemed to be
underwriters in connection with the Offered Debt Securities.
If underwriters are used to sell Offered Debt Securities, the
underwriters may engage in transactions that stabilize, maintain
or otherwise affect the price of the Offered Debt Securities.
Specifically, the underwriters may overallot. In addition, the
underwriters may bid for, and purchase, Offered Debt Securities in
the open market to cover syndicate short positions created in
connection with the offering or to stabilize the price of the
Offered Debt Securities. Finally, the underwriting syndicate may
reclaim selling concessions allowed for distributing the Offered
Debt Securities in the offering, if the syndicate repurchases
previously distributed Offered Debt Securities in syndicate
covering transactions, in stabilization transactions or otherwise.
Any of these activities may stabilize or maintain the market price
of the Offered Debt Securities above independent market levels.
The underwriters are not required to engage in these activities,
and may end any of these activities at any time.
If any dealers are utilized in the sale of Offered Debt
Securities, we will sell such Debt Securities to such dealers, as
the principal. The dealers may then resell such Debt Securities
to the public at varying prices to be determined by such dealers
at the time of resale. Dealers may be entitled, under agreements
that may be entered into with us, to indemnification by us against
certain liabilities, including liabilities under the 1933 Act and
such dealers or their affiliates may be customers of, extend
credit to, or engage in transactions with, or perform services
for, us in the ordinary course of business. The name of each
dealer and the terms of the transactions will be set forth in the
Prospectus Supplement relating to such offering.
Offers to purchase Debt Securities may be solicited directly by us
and sales thereof may be made by us directly to institutional
investors or others. The terms of any such sales, including the
terms of any bidding or auction process, if utilized, will be
described in the Prospectus Supplement relating to such offering.
Debt Securities may also be offered and sold, if so indicated in
the Prospectus Supplement, in connection with a remarketing upon
their purchase, in accordance with a redemption or repayment
pursuant to their terms, or otherwise, by one or more firms
("remarketing firms"), acting as principals for their own accounts
or as agents for us. Any remarketing firm will be identified and
the terms of its agreement, if any, with us and its compensation
will be described in the Prospectus Supplement. Remarketing firms
may be deemed to be underwriters in connection with the Debt
Securities remarketed thereby. Remarketing firms may be entitled
under agreements that may be entered into with us to
indemnification by us against certain liabilities, including
liabilities under the 1933 Act, and may be customers of, engage in
transactions with or perform services for us in the ordinary
course of business.
If so indicated in the Prospectus Supplement, we will authorize
agents and underwriters to solicit offers by certain institutions
to purchase Debt Securities from us at the public offering price
set forth in the Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and
delivery on the date stated in the Prospectus Supplement. Such
Contracts will be subject to only those conditions set forth in
the Prospectus Supplement. A commission indicated in the
Prospectus Supplement will be paid to underwriters and agents
soliciting purchases of Debt Securities pursuant to Contracts
accepted by us.
LEGAL OPINIONS
The validity of each issue of Securities will be passed upon for
the Company by Dinsmore & Shohl LLP of Cincinnati, Ohio.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference from the Company's Annual Report on Form
10-K have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein
by reference, and has been so incorporated in reliance upon the
report of such firm given upon their authority as experts in
accounting and auditing.
With respect to the unaudited interim financial information that
is incorporated herein by reference, Deloitte & Touche LLP have
applied limited procedures in accordance with professional
standards for a review of such information. However, as stated in
their reports included in the Company's Quarterly Reports on Form
10-Q and incorporated by reference herein, they did not audit and
they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their reports
on such information should be restricted in light of the limited
nature of the review procedures applied. Deloitte & Touche LLP
are not subject to the liability provisions of Section 11 of the
Securities Act of 1933 for their reports on the unaudited interim
financial information because those reports are not "reports" or a
"part" of the registration statement prepared or certified by an
accountant within the meaning of Sections 7 and 11 of the Act.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated aggregate expenses, all of which are to be borne by
the Company, in connection with the offering of the Securities are
as follows:
Securities and Exchange Commission Registration Fee $69,500
Printing and Engraving Expenses *
Trustee Fees *
Accounting Fees and Expenses *
Legal Fees and Expenses *
Blue Sky Fees and Expenses *
Rating Agency Fees *
Miscellaneous *
---------
Total $ *
____________
*To be completed by amendment.
Item 15. Indemnification of Directors and Officers
The Company's Bylaws provide that the Company shall indemnify to the
full extent permitted by law any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director,
officer, trustee, or employee of the Company or of another corporation
if serving at the request of the Company. Indemnification of agents of
the Company is permitted at the discretion of the Board of Directors.
In general, Tennessee law provides that a corporation may indemnify such
persons against expenses, including attorneys' fees, judgments, fines,
and amounts paid in settlement actually and reasonably incurred by them
in connection with such suits, actions or proceedings if the person
seeking indemnification acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful; provided,
however, that in the case of an action by or in the name of the claim or
issue as to which such person has been adjudged to be liable to
negligence or misconduct unless and to the extent that the court in
which the action was brought holds that indemnification is warranted.
Any Underwriting Agreement used in connection with the distribution of
Securities will provide for the indemnification of the Company, its
controlling persons, its directors and certain of its officers by the
underwriters or agents against certain liabilities, including
liabilities under the Securities Act of 1933, as amended.
Item 16. Exhibits.
1 Form of Underwriting Agreement
4.1 Form of Indenture
5 Opinion of Dinsmore & Shohl LLP, including its consent*
12 Computation of Ratio of Earnings to Fixed Charges
15 Letter regarding unaudited interim financial information
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Dinsmore & Shohl LLP (included in Exhibit 5)*
24 Power of Attorney (included on the signature page)
25 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Bankers Trust Company*
__________
*To be filed by amendment.
Item 17. Undertakings.
A. Rule 415 Offering.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that Paragraphs A.(1)(i) and A.(1)(ii) do not apply
if the registration statement is on Form S-3 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) For purposes of determining any liability under the Securities Act
of 1933:
(i) the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective;
and
(ii) each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
B. Incorporation of Subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by a controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized in the City of Lebanon, State of
Tennessee, on March 12, 1999.
CBRL GROUP, INC.
By: /s/ Ronald N. Magruder
Ronald N. Magruder
President and Chief Operating
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Each person whose signature appears below hereby appoints Michael A.
Woodhouse and James F. Blackstock each to be his attorney-in-fact, for
him or her in his or her name, place and stead, in any capacity, to sign
any and all amendments relating to this Registration Statement,
including any Registration Statement filed pursuant to Rule 462(b) under
the Securities Act of 1933, and to file the same with the Securities and
Exchange Commission.
Principal Executive Officer:
/s/ Dan W. Evins March 12, 1999
Dan W. Evins
Chairman and Chief Executive Officer
Principal Financial and Accounting Officer:
/s/ Michael A. Woodhouse March 12, 1999
Michael A. Woodhouse
Chief Financial Officer and Treasurer
Directors: Date:
____________, 1999
James C. Bradshaw
_______________, 1999
Robert V. Dale
/s/ Dan W. Evins March 12, 1999
Dan W. Evins
/s/ Edgar W. Evins March 12, 1999
Edgar W. Evins
/s/ William D. Heydel March 12, 1999
William D. Heydel
/s/ Robert C. Hilton March 12, 1999
Robert C. Hilton
/s/ Charles E. Jones, Jr. March 12, 1999
Charles E. Jones, Jr.
/s/ Charles T. Love, Jr. March 12, 1999
Charles T. Lowe, Jr.
/s/ B.F. Lowery March 12, 1999
B.F. Lowery
/s/ Ronald N. Magruder March 12, 1999
Ronald N. Magruder
/s/ Gordon L. Miller March 12, 1999
Gordon L. Miller
______________, 1999
Martha M. Mitchell
/s/ Jimmie D. White March 12, 1999
Jimmie D. White<PAGE>
EXHIBIT INDEX
Exhibit Page
1 Form of Underwriting Agreement
4.1 Form of Indenture
5 Opinion of Dinsmore & Shohl LLP, including its consent*
12 Computation of Ratio of Earnings to Fixed Charges
15 Letter regarding unaudited interim financial information
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Dinsmore & Shohl LLP (included in Exhibit 5)*
24 Powers of Attorney (included on the signature page)
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Bankers Trust Company*
_____________
*To be filed by Amendment.
Exhibit 1
FORM OF UNDERWRITING AGREEMENT
CBRL GROUP, INC.
(a Tennessee corporation)
Debt Securities
UNDERWRITING AGREEMENT
MERRILL LYNCH & CO.
Merrill Lynch, Pierre, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
CBRL Group, Inc., a Tennessee corporation (the "Company"), proposes
to issue and sell up to $250,000,000 of its senior or subordinated debt
securities (the "Debt Securities") from time to time, in or pursuant to
one or more offerings on terms to be determined at the time of sale.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as
of _____________, 1999 (the "Senior Indenture"), between the Company
and _______________, as trustee (the "Senior Trustee"), or as
subordinated indebtedness (the "Subordinated Debt Securities") under an
indenture, dated as of ___________, 1999 (the "Subordinated Indenture",
and collectively with the Senior Indenture, the "Indentures", and each,
an "Indenture"), between the Company and ________________, as trustee
(the "Subordinated Trustee", and collectively with the Senior Trustee,
the "Trustees", and each, a "Trustee"). Each series of Debt Securities
may vary, as applicable, as to title, aggregate principal amount, rank,
interest rate or formula and timing of payments thereof, stated maturity
date, redemption and/or repayment provisions, sinking fund requirements,
and any other variable terms established by or pursuant to the
applicable Indenture. As used herein, "Securities" shall mean the
Senior Debt Securities or Subordinated Debt Securities, or any
combination thereof, initially issuable by the Company.
Whenever the Company determines to make an offering of Securities
through Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), or through an underwriting syndicate
managed by Merrill Lynch, the Company will enter into an agreement
(each, a "Terms Agreement") providing for the sale of such Securities
to, and the purchase and offering thereof by, Merrill Lynch and such
other underwriters, if any, selected by Merrill Lynch (the
"Underwriters," which term shall include Merrill Lynch, whether acting
as sole Underwriter or as a member of an underwriting syndicate, as well
as any Underwriter substituted pursuant to Section 10 hereof). The
Terms Agreement relating to the offering of Securities shall specify the
aggregate principal amount of Securities to be issued (the "Underwritten
Securities"), the name of each Underwriter participating in such
offering (subject to substitution as provided in Section10 hereof) and
the name of any Underwriter other than Merrill Lynch acting as co-manager
in connection with such offering, the aggregate principal amount
of Underwritten Securities which each such Underwriter severally agrees
to purchase, whether such offering is on a fixed or variable price basis
and, if on a fixed price basis, the initial offering price, the price at
which the Underwritten Securities are to be purchased by the
Underwriters, the form, time, date and place of delivery and payment of
the Underwritten Securities and any other material variable terms of the
Underwritten Securities. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between the
Company and Merrill Lynch, acting for itself and, if applicable, as
representative of any other Underwriters. Each offering of Underwritten
Securities through Merrill Lynch as sole Underwriter or through an
underwriting syndicate managed by Merrill Lynch will be governed by this
Underwriting Agreement, as supplemented by the applicable Terms
Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-________)
[and pre-effective amendment[s] no[s] ____, ____, and ____.
thereto] for the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time
to time in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), and the
Company has filed such post-effective amendments thereto as may be
required prior to the execution of the applicable Terms Agreement. Such
registration statement (as so amended, if applicable) has been declared
effective by the Commission and each Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (as so amended, if applicable), including
the information, if any, deemed to be a part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations (the "Rule 430A Information") or
Rule434(d) of the 1933 Act Regulations (the "Rule 434 Information"), is
referred to herein as the "Registration Statement;" and the final
prospectus and the final prospectus supplement relating to the offering
of the Underwritten Securities, in the form first furnished to the
Underwriters by the Company for use in connection with the offering of
the Underwritten Securities, are collectively referred to herein as the
"Prospectus;" provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be deemed to
include all documents incorporated therein by reference pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to
the execution of the applicable Terms Agreement; provided, further, that
if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also he deemed to include the Rule462
Registration Statement; and provided, further, that if the Company
elects to rely upon Rule434 of the 1933 Act Regulations, then all
references to "Prospectus" shall also be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term
sheet (the "Term Sheet"), as the case may be, in the form first
furnished to the Underwriters by the Company in reliance upon Rule434 of
the 1933 Act Regulations, and all references in this Underwriting
Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the registration statement became effective and
any prospectus that omitted, as applicable, the Rule430A Information,
the Rule434 Information or other information to be included upon pricing
in a form of prospectus filed with the Commission pursuant to Rule424(b)
of the 1933 Act Regulations, that was used after such effectiveness and
prior to the execution and delivery of the applicable Terms Agreement.
For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus
or to any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained,"
"included" or "stated" (or other references of like import) in the
Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include all such financial statements and schedules
and other information that is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the
case may be; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in
the Registration Statement, Prospectus or preliminary prospectus, as the
case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to Merrill Lynch, as of the date hereof, and to
each Underwriter named in the applicable Terms Agreement, as of the date
thereof, and as of the Closing Time (as defined below) (in each case, a
"Representation Date"), as follows:
(1) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933
Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under the 1933
Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. In addition, each Indenture has
been duly qualified under the 1939 Act.
At the respective times the Registration Statement, any
Rule462(b) Registration Statement and any post-effective amendments
thereto (including the filing of the Company's most recent Annual
Report on Form10-K with the Commission (the "Annual Report on Form
10-K")) became effective and at each Representation Date, the
Registration Statement, any Rule462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations
of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not 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. At the date of the Prospectus and at the Closing Time,
the Prospectus and any amendments and supplements thereto did not
and will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. If the Company elects to rely upon
Rule 434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through Merrill Lynch expressly for use in the Registration
Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the
offering of Underwritten Securities will, at the time of such
delivery, be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934
Act Regulations") and, when read together with the other
information in the Prospectus, at the date of the Prospectus, and
at the Closing Time, did not and will not include an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which the), were made, not misleading.
(3) Independent Accountants. The accountants who
certified the financial statements and any supporting schedules
thereto included in the Registration Statement and the Prospectus
are independent public accountants as required by the 1933 Act and
the 1933 Act Regulations.
(4) Financial Statements. The financial statements of
the Company included in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well
as those financial statements, schedules and notes of any other
entity included therein, present fairly the financial position of
the Company and its consolidated subsidiaries, or such other
entity, as the case may be, at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries, or such other entity, as
the case may be, for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present
fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement and the Prospectus. In addition, any
pro forma financial statements of the Company and its subsidiaries
and the related notes thereto included in the Registration
Statement and, the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements
and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any
of its subsidiaries, other than those arising in the ordinary
course of business, that are material with respect to the Company
and its subsidiaries considered as one enterprise and (C) except
for regular dividends on the Company's common stock or preferred
stock, in amounts per share that are consistent with past practice
or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock.
(6) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Tennessee and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under, or as contemplated under, this
Underwriting Agreement and the applicable Terms Agreement. The Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule1-02 of
Regulation S-X promulgated under the 1933 Act) (each, a "Subsidiary"
and, collectively, the "Subsidiaries"), if any, has been duly organized
and is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
result in a Material Adverse Effect. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized
and is validly issued, fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
None of the outstanding shares of capital stock of any Subsidiary was
issued in violation of preemptive or other similar rights of any
securityholder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding shares
of capital stock of the Company is as set forth in the column entitled
"Actual" under such section (except for subsequent issuances thereof, if
any, contemplated under this Underwriting Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). Such shares of capital stock
have been duly authorized and validly issued by the Company and are
fully paid and non-assessable, and none of such shares of capital stock
was issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly authorized,
executed and delivered by the Company.
(10) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities. The Senior Debt Securities and/or
Subordinated Debt Securities being sold pursuant to the applicable Terms
Agreement have been, or as of the date of such Terms Agreement will have
been, duly authorized by the Company for issuance and sale pursuant to
this Underwriting Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and authenticated in the manner provided for in
the applicable Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles, and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such
Underwritten Securities will he in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(11) Authorization of the Indentures. Each applicable
Indenture governing the Senior Debt Securities and/or Subordinated Debt
Securities being sold pursuant to the applicable Terms Agreement has
been, or prior to the issuance of the Debt Securities thereunder will
have been, duly authorized, executed and delivered by the Company and,
upon such authorization, execution and delivery, will constitute a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally
or by general equitable principles.
(12) Descriptions of the Underwritten Securities. The
Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture, as of the date of the
Prospectus, when issued and delivered in accordance with the terms of
the related Underwritten Securities, will conform in all material
respects to the statements relating thereto contained in the Prospectus
and will be in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration
Statement.
(13) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of this Underwriting
Agreement, the applicable Terms Agreement and each applicable Indenture
and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and the
use of the proceeds from the sale of the Underwritten Securities as
described under the caption "Use of Proceeds") and compliance by the
Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event
(as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any assets, properties or operations of
the Company or any of its subsidiaries pursuant to, any Agreements and
Instruments (except for such conflicts, breaches, defaults, events or
liens, charges or encumbrances that would not result in a Material
Adverse Effect) nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign having jurisdiction over the Company or any
if its subsidiaries or any of their assets, properties or operations.
As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
(14) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any subsidiary's principal suppliers, manufacturers, customers or
contractors, that, in either case, may reasonably be expected to result
in a Material Adverse Effect.
(15) Absence of Proceedings. There is not pending or
threatened any action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or
foreign, now pending, or to the knowledge of the Company threatened,
against or affecting the Company or any of its subsidiaries that is
required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or that might reasonably be
expected to result in a Material Adverse Effect, or that might
reasonably be expected to materially and adversely affect the assets,
properties or operations thereof or the consummation of the transactions
contemplated under this Underwriting Agreement, the applicable Terms
Agreement or any applicable Indenture or the performance by the Company
of its obligations hereunder and thereunder. The aggregate of all
pending legal or governmental proceedings to that the Company or any of
its subsidiaries is a party or of which any of their respective assets,
properties or operations is the subject that are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(16) Accuracy of Exhibits. There are no contracts or
documents that are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto that have not been so
described and filed as required.
(17) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the
performance by the Company of its obligations under this Underwriting
Agreement or the applicable Terms Agreement or in connection with the
transactions contemplated under this Underwriting Agreement, such Terms
Agreement or any applicable Indenture, except such as have been already
obtained or as may be required under state securities laws.
(18) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances that would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(19) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them. The
Company and its subsidiaries are in compliance with the ten-ns and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, result in a Material
Adverse Effect. All of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not result in a Material Adverse Effect. Neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses that, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(20) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the Company
and its subsidiaries and good title to all other properties owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind,
except (A) as otherwise stated in the Registration Statement and the
Prospectus or (B) those which do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company or
any of its subsidiaries. All of the leases and subleases material to
the business of the Company and its subsidiaries considered as one
enterprise, and under which the Company or any of its subsidiaries holds
properties described in the Prospectus, are in full force and effect,
and neither the Company nor any of its subsidiaries has received any
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any of its subsidiaries
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such subsidiary of the
continued possession of the leased or subleased premises under any such
lease or sublease.
(21) Investment Company Act. The Company is not, and upon
the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
(22) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(23) Compliance with Cuba Act. The Company has complied
with, and is and will be in compliance with, the provisions of that
certain Florida act relating to disclosure of doing business with Cuba,
codified as Section517.075 of the Florida statutes, and the rules and
regulations thereunder or is exempt therefrom.
(b) Officers' Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries and delivered to any
Underwriter or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation
and warranty by the Company to each Underwriter as to the matters
covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the
basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein set forth.
(b) Payment. Payment of the purchase price for, and delivery
of, the Underwritten Securities shall be made at the offices of Winston
& Strawn, 35 West Wacker Drive, Chicago, Illinois 60601, or at such
other place as shall be agreed upon by Merrill Lynch and the Company, at
10:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (Eastern time) on any given day) business day after the
date of the applicable Terms Agreement (unless postponed in accordance
with the Provisions of Section10 hereof), or such other time not later
than ten business days after such date as shall be agreed upon by
Merrill Lynch and the Company (such time and date of payment and
delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to Merrill Lynch for the respective accounts of the
Underwriters of the Underwritten Securities to be purchased by them. It
is understood that each Underwriter has authorized Merrill Lynch, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Underwritten Securities which it has severally
agreed to purchase. Merrill Lynch, individually and not as
representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Underwritten Securities to be
purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(c) Denominations; Registration. Certificates for the
Underwritten Securities shall be in such denominations and registered in
such names as Merrill Lynch may request in writing at least one full
business day prior to the Closing Time. Certificates for the
Underwritten Securities will be made available for examination and
packaging by Merrill Lynch in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with
Merrill Lynch and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section3(b), will comply with the
requirements of Rule430A of the 1933 Act Regulations and/or Rule434 of
the 1933 Act Regulations, if and as applicable, and will notify the
Representative(s) immediately, and confirm the notice in writing, of (i)
the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii)
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Underwritten Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary
pursuant to Rule424 and will take such steps as it deems necessary to
ascertain promptly whether the Prospectus transmitted for filing under
Rule424 was received for filing by the Commission and, in the event that
it was not, it will promptly file the Prospectus. The Company will make
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. The Company will give Merrill
Lynch notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule462(b) of the
1933 Act Regulations), any Term Sheet or any amendment, supplement or
revision to either the prospectus included in the Registration Statement
at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish Merrill Lynch
with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or
use any such document to which Merrill Lynch or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to Merrill Lynch and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of experts,
and will also deliver to Merrill Lynch, without charge, a conformed copy
of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. Copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter may reasonably request, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus as
such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The
Company will comply with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations so as to permit the completion
of the distribution of the Underwritten Securities as contemplated in
this Underwriting Agreement and the applicable Terms Agreement and in
the Registration Statement and the Prospectus. If at any time when the
Prospectus is required by the 1933 Act or the 1934 Act to be delivered
in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement 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 or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its
best efforts, in cooperation with the Underwriters, to qualify the
Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or
foreign) as Merrill Lynch may designate and to maintain such
qualifications in effect for a period of not less than one year from the
date of the applicable Terms Agreement; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification
in effect for a period of not less than one year from the date of such
Terms Agreement.
(g) Earnings Statement. The Company will timely file such
reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 1 1 (a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net
proceeds received by it from the sale of the Underwritten Securities in
the manner specified in the Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to
effect the listing of the Underwritten Securities, prior to the Closing
Time, on any national securities exchange or quotation system if and as
specified in the applicable Terms Agreement.
(j) Restriction on Sale of Securities. Between the date
of the applicable Terms Agreement and the Closing Time or such other
date specified in such Terms Agreement, the Company will not, without
the prior written consent of Merrill Lynch, directly or indirectly,
issue, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, the securities specified in such Terms Agreement.
(k) Reporting Requirements. The Company, during the
period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods required
by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will
pay all expenses incident to the performance of its obligations under
this Underwriting Agreement or the applicable Terms Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of
each amendment thereto, (ii) the preparation, printing and delivery to
the Underwriters of this Underwriting Agreement, any Terms Agreement,
any Agreement among Underwriters, the Indentures, and such other
documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Underwritten Securities, (iii) the
preparation, issuance and delivery of the Underwritten Securities and
any certificates for the Underwritten Securities to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon
the sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents, as well as the fees and
disbursements of the Trustees, and their respective counsel, (v) the
qualification of the Underwritten Securities under state securities laws
in accordance with the provisions of Section3(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey, and any
amendment thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheet, and the
Prospectus and any amendments or supplements thereto, (vii) the fees
charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, if applicable, (viii) the
fees and expenses incurred with respect to the listing of the
Underwritten Securities, if applicable, (ix) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. (the "NASD") of t he terms of
the sale of the Underwritten Securities, and (x) the fees and expenses
of any Underwriter acting in the capacity of a "qualified independent
underwriter" (as defined in Section 2(l) of Schedule E of the bylaws of
the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms
Agreement is terminated by Merrill Lynch in accordance with the
provisions of Section5 or Section9(b)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Underwritten
Securities pursuant to the applicable Terms Agreement are subject to the
accuracy of the representations and warranties of the Company contained
in Section 1 hereof or in certificates of any officer of the Company or
any of its subsidiaries delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The
Registration Statement, including any Rule462(b) Registration Statement,
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act and no proceedings for that purpose shall have been
initiated or be pending or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities, the specific method of
distribution and similar matters shall have been filed with the
Commission in accordance with Rule424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A), or, if the Company has elected to
rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including
the Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time,
Merrill Lynch shall have received the favorable opinion, dated as of
Closing Time, of Dinsmore & Shohl LLP, counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit B hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time,
Merrill Lynch shall have received the favorable opinion, dated as of
Closing Time, of Winston & Strawn, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters, with respect to the matters set forth in (1), (2),
(6) through (12), inclusive, and the penultimate paragraph of Exhibit B
hereto. In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to Merrill Lynch. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall
not have been, since the date of the applicable Terms Agreement or since
the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and Merrill Lynch shall have
received a certificate of the President or a Vice President of the
Company and of the chief financial officer or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and
effect as though expressly made at and as of the Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Time,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the
execution of the applicable Terms Agreement, Merrill Lynch shall have
received from Deloitte & Touche LLP a letter dated such date, in form
and substance satisfactory to Merrill Lynch, together with signed or
reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, Merrill
Lynch shall have received from Deloitte & Touche LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (e) of the Section5, except
that the specified date referred to shall be a date not more than three
business days prior to the Closing Time.
(g) Ratings. At Closing Time, the Underwritten Securities
shall have the ratings accorded by any "nationally recognized
statistical rating organization," as defined by the Commission for
purposes of Rule436(g)(2) of the 1933 Act Regulations, if and as
specified in the applicable Terms Agreement, and the Company shall have
delivered to Merrill Lynch a letter, dated as of such date, from each
such rating organization, or other evidence satisfactory to Merrill
Lynch, confirming that the Underwritten Securities have such ratings.
Since the time of execution of such Terms Agreement, there shall not
have occurred a downgrading in the rating assigned to the Underwritten
Securities or any of the Company's other securities by any such rating
organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Company's other securities.
(h) Approval of Listing. At Closing Time, the
Underwritten Securities shall have been approved for listing, subject
only to official notice of issuance, if and as specified in the
applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an
offering of Underwritten Securities has been filed with the NASD for
review, the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(j) Additional Documents. At Closing Time, counsel for
the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Underwritten Securities
as herein contemplated shall be satisfactory in form and substance to
Merrill Lynch and counsel for the Underwriters.
(k) Termination of Terms Agreement. If any condition
specified in this Section5 shall not have been fulfilled when and as
required to be fulfilled, the applicable Terms Agreement may be
terminated by Merrill Lynch by notice to the Company at any time at or
prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees
to indemnify and hold harmless each Underwriter and each person. if any,
who controls any Underwriter within the meaning of Section15 of the 1933
Act or Section20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Merrill Lynch
expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A information and the Rule434
Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification of Company, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule430A Information
and the Rule434 Information deemed to be a part thereof, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Merrill
Lynch expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it
from any liability that it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected
by Merrill Lynch, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected
by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if Failure to Reimburse.
If at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date
of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or
(ii) if the allocation provided by clause (i) 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 of the Underwriters,
on the other hand, in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, 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 hand, in connection with the offering of
the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Underwritten Securities (before
deducting expenses) received by the Company and the total underwriting
discount received by the Underwriters, in each case as set forth on the
cover of the Prospectus, or, if Rule 434 is used, the corresponding
location on the Term Sheet, bear to the aggregate initial public
offering price of such Underwritten Securities as set forth on such
cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to,
among other things, whether any such 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 by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to
above in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Underwritten Securities underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement
or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to
the aggregate principal amount of Underwritten Securities set forth
opposite their respective names in the applicable Terms Agreement, and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in
this Underwriting Agreement or the applicable Terms Agreement or in
certificates of officers of the Company submitted pursuant hereto or
thereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of, and payment for, the Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement
(excluding the applicable Terms Agreement) may be terminated for any
reason at any time by the Company or by Merrill Lynch upon the giving of
30 days' prior written notice of such termination to the other party
hereto.
(b) Terms Agreement. Merrill Lynch may terminate the
applicable Terms Agreement, by notice to the Company, at any time at or
prior to the Closing Time, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material
adverse change in the financial markets in the United States or, if the
Underwritten Securities are denominated or payable in, or indexed to,
one or more foreign or composite currencies, in the international
financial markets, or any outbreak of hostilities or escalation thereof
or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make
it, in the judgment of Merrill Lynch, impracticable to market the
Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the
Company has been suspended or limited by the Commission or the Nasdaq
National Market, or if trading generally on the New York Stock Exchange
or the American Stock Exchange or in the Nasdaq National Market has been
suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of
said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or (iv) a banking moratorium has
been declared by either Federal or New York authorities or, if the
Underwritten Securities are denominated or payable in, or indexed to,
one or more foreign or composite currencies, by the relevant authorities
in the related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the
applicable Terms Agreement is terminated pursuant to this Section 9,
such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Underwritten Securities that it or they are obligated to purchase under
the applicable Terms Agreement (the "Defaulted Securities"), then
Merrill Lynch shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, Merrill Lynch shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities does not exceed 10% of the number
or aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities exceeds 10% of the number or
aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, such Terms Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of the applicable Terms Agreement, either Merrill Lynch or
the Company shall have the right to postpone the Closing Time for a
period not exceeding seven days in order to effect any required changes
in the Registration Statement or the Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section
10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
Merrill Lynch at World Financial Center, North Tower, New York, New York
10281-1201, attention of Investment Banking Counsel; and notices to the
Company shall be directed to it at 305 Hartmann Drive, Lebanon,
Tennessee 37087, attention of James F. Blackstock, Vice President,
Secretary and General Counsel.
SECTION 12. Parties. This Underwriting Agreement and the
applicable Terms Agreement shall each inure to the benefit of and be
binding upon the Company, Merrill Lynch and, upon execution of such
Terms Agreement, any other Underwriters and their respective successors.
Nothing expressed or mentioned in this Underwriting Agreement or such
Terms Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or
in respect of this Underwriting Agreement or such Terms Agreement or any
provision herein or therein contained. This Underwriting Agreement and
such Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the
parties hereto and thereto and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT
AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will
become a binding agreement between Merrill Lynch and the Company in
accordance with its terms.
Very truly yours,
CBRL GROUP, INC.
By:______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:______________________________________
Authorized Signatory
<PAGE>
Exhibit A
CBRL GROUP, INC.
(a Tennessee)
Debt Securities
TERMS AGREEMENT
---------------
January ___, 1999
To: CBRL Group, Inc.
305 Hartmann Drive
Lebanon, Tennessee 37087
Ladies and Gentlemen:
We understand that CBRL Group, Inc., a Tennessee corporation (the
"Company"), proposes to issue and sell $ aggregate principal amount
of its [senior] [subordinated] debt securities (the "Debt Securities"),
(such securities also being hereinafter referred to as the "Underwritten
Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase [, severally and not jointly,] the
principal amount of Underwritten Securities [opposite their names set
forth below] at the purchase price set forth below.
Principal Amount
Underwriter of Underwritten Securities
- ----------- --------------------------
_______________
Total
-------------
<PAGE>
Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per
share: % of the principal amount, plus accrued interest
[amortized original issue discount], if any, from
________________.
Purchase price per share: ___% of principal amount, plus accrued
interest [amortized original issue discount], if any, from
_____________.
Form:
Other term and conditions:
Closing date and location:
<PAGE>
Please accept this offer no later than ______ o'clock P.M. (New
York City time) on _________________ by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to
us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By_______________________________
Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
CBRL GROUP, INC.
By __________________________
Name:
Title:
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Tennessee.
(2) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect.
(4) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement and
the Prospectus, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and, to the best of our knowledge, is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of any Subsidiary was
issued in violation of preemptive or other similar rights of any
securityholder of such Subsidiary.
(5) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus in the column entitled "Actual" under
the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements or employee benefit plans referred
to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus); the shares of
issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable;
and none of the outstanding shares of capital stock of the Company was
issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(6) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(7) The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement and
the applicable Terms Agreement. The Underwritten Securities, when
issued and authenticated in the manner provided for in the applicable
Indenture and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments outside the United States. The
Underwritten Securities are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(8) The applicable Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution
and delivery thereof by the Trustee) constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles.
(9) The Indenture has been duly qualified under the 1939 Act.
(10) The Securities and the Indenture conform as to legal matters in all
material respects to the descriptions thereof contained in the
Prospectus and are in substantially the form filed or incorporated by
reference, as the cause may be, as an exhibit to the Registration
Statement.
(11) The information in the Prospectus under "Description of Debt
Securities," "Certain Federal Income Tax Considerations" and
"__________" and in the Registration Statement under Item 15, to the
extent that it constitutes matters of law, summaries of legal matters,
the Company's charter and bylaws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
(12) To the best of our knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and no default by
the Company or any subsidiary exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to
in the Registration Statement or the Prospectus or filed or incorporated
by reference as an exhibit to the Registration Statement.
(13) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the applicable Indenture
and the Securities and the consummation of the transactions contemplated
in the Underwriting Agreement, the applicable Terms Agreement and in the
Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectus under the caption "Use Of Proceeds") and
compliance by the Company with its obligations under the Underwriting
Agreement, the Indenture and the Securities do not and will not, whether
with or without the giving of notice or lapse of time or both, conflict
with or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary pursuant to
any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to
us, to which the Company or any subsidiary is a party or by which it or
any of them may be bound, or to which any of the property or assets of
the Company or any subsidiary is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations. Incorporated by reference
as an exhibit to the Registration Statement.
(14) To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated
in the Underwriting Agreement, the applicable Terms Agreement or the
applicable Indenture or the performance by the Company of its
obligations thereunder.
(15) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of our knowledge, there
are no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or referred
to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(16) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not
described as required.
(17) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required
filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has
been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
(17) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus, excluding the documents incorporated by
reference therein, and each amendment or supplement to the Registration
Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates
(other than the financial statements and supporting schedules included
therein or omitted therefrom, and the Trustee's Statement of Eligibility
on Form T-1 (the "Form T-1"), as to which we need express no opinion)
complied as to form in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations.
(18) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we need express no opinion), when they
were filed with the Commission complied as to form in all material
respects with the requirements of he 1934 Act and the rules and
regulations of the Commission thereunder.
(19) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than under
the 1933 Act and the 1933 Act Regulations, the 1939 Act, and the 1939
Act Regulations, which have been obtained, or as may be required under
the securities or blue sky laws of the various states) is necessary or
required in connection with the due authorization, execution and
delivery of the Underwriting Agreement and the applicable Terms
Agreement or the due execution, delivery or performance of the Indenture
by the Company or for the offering, issuance, sale or delivery of the
Securities.
(20) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the 1940 Act.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any post-effective amendment thereto
(except for financial statements and schedules and other financial data
included or incorporated by reference therein or omitted therefrom and
the Form T-1, as to which we need make no statement), at the time such
Registration Statement or post-effective amendment became effective, or
at the date of the applicable Terms Agreement, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and
other financial data included or incorporated by reference therein or
omitted therefrom and the Form T-1, as to which we need make no
statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of
fact (but not as to legal conclusions), to the extent they deem proper,
on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law
(1991).
Exhibit 4.1
FORM OF INDENTURE
__________________________________________________________________
CBRL GROUP, INC.
TO
BANKERS TRUST COMPANY, as Trustee
INDENTURE
Dated as of ____________, 1999
_________________________________________________________________
<PAGE>
CROSS REFERENCE SHEET*
_________________
*Certain Sections of this Indenture relating to Sections 310 through
318(a), inclusive, of the Trust Indenture Act of 1939, as amended:
Section of Trust Indenture Act of 1939 Section of Indenture
310(a)(1) and (2) 6.10
310(a)(3) and (4) Inapplicable
310(a)(5) 6.10
310(b) 6.10
310(c) Inapplicable
311(a) 6.11
311(b) 6.11
311(c) Inapplicable
312(a) 4.1
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 6.6
313(b) 6.6
313(c) 6.6
313(d) 6.6
314(a) 4.3
314(b) Inapplicable
314(c)(1) and (2) 2.4 and 11.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.5
314(f) 11.5
315(a) 6.1(b)
315(b) 6.5
315(c) 6.1(a)
315(d)(1) 6.1(b)(1) and (2)
315(d)(2) 6.1(c)(2)
315(d)(3) 6.1(c)(3)
315(e) 5.11
316(a)(1)(A) 5.9
316(a)(1)(B) 5.10
316(a)(2) Inapplicable
316(b) 5.7
316(c) 2.7
317(a)(1) and (2) 5.2
317(b) 3.2 and 3.3
318(a) 11.7
_______________________
* This cross reference sheet shall not, for any purpose, be deemed to be
a part of this Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act of 1939, as amended, which provides that the provisions of
Sections 310 through 317 of such Act are a part of and govern every
qualified indenture, whether or not physically contained therein.
<PAGE>
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS 1
Authorization of Indenture 1
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture 1
ARTICLE I DEFINITIONS 1
SECTION 1.1 Certain Terms Defined 1
"Attributable Debt" 2
"Authorized Newspaper" 2
"Board of Directors" 2
"Board Resolution" 2
"Business Day" 2
"Commission" 2
"Composite Rate" 2
"Consolidated Funded Indebtedness" 3
"Consolidated Net Tangible Assets" 3
"Consolidated Subsidiaries" 3
"Corporate Trust Office" 3
"Coupon" 3
"Depositary" 3
"Event of Default" 3
"Funded Indebtedness" 3
"Holder", "Holder of Securities,
"Securityholder" 4
"Indebtedness" 4
"Indenture" 4
"Interest" 4
"Issuer" 4
"Issuer Order" 4
"Lien" 4
"Net Tangible Assets" 4
"Officers' Certificate" 5
"Opinion of Counsel" 5
"original issue date" 5
"Original Issue Discount Security" 5
"Outstanding" 6
"Person" 6
"principal" 7
"Principal Property" 7
"Registered Global Security" 7
"Registered Security" 7
"Responsible Officer" 7
"Security" or "Securities" 7
"Subsidiary" 7
"Trust Indenture Act of 1939" 7
"Trustee" 7
"Unregistered Security" 8
"U.S. Government Obligations" 8
"Vice president" 8
"Yield to Maturity" 8
ARTICLE II SECURITIES 8
SECTION 2.1 Forms Generally 8
SECTION 2.2 Form of Trustee's Certificate of
Authentication 8
SECTION 2.3 Amount Unlimited; Issuable in Series 9
SECTION 2.4 Authentication and Delivery of Securities 12
SECTION 2.5 Execution of Securities 14
SECTION 2.6 Certificate of Authentication 15
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest 15
SECTION 2.8 Registration, Transfer and Exchange 16
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities 20
SECTION 2.10Cancellation of Securities; Destruction
Thereof 21
SECTION 2.11Temporary Securities 22
ARTICLE IIICOVENANTS OF THE ISSUER 23
SECTION 3.1 Payment of Principal and Interest 23
SECTION 3.2 Offices for Payments, etc. 23
SECTION 3.3 Paying Agents 24
SECTION 3.4 Written Statement to Trustee 25
SECTION 3.5 Limitation on Liens 25
SECTION 3.6 Limitation on Sale and LeaseBack 28
ARTICLE IVSECURITYHOLDERS LISTS AND REPORTS BY THE 28
SECTION 4.1Issuer to Furnish Trustee Information as
to Names and Addresses of Securityholders 28
SECTION 4.2 Preservation and Disclosure of
Securityholders Lists 29
SECTION 4.3 Reports by the Issuer 30
ARTICLE VREMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT 31
SECTION 5.1Event of Default Defined;
Acceleration of Maturity; Waiver of
Default 31
SECTION 5.2Collection of Indebtedness by Trustee;
Trustee May Prove Debt 34
SECTION 5.3 Application of Proceeds 37
SECTION 5.4 Suits for Enforcement 38
SECTION 5.5Restoration of Rights on Abandonment
of Proceedings 38
SECTION 5.6 Limitations on Suits by Securityholders 38
SECTION 5.7Unconditional Right of Securityholders
to Institute Certain Suits 39
SECTION 5.8Powers and Remedies Cumulative;
Delay or Omission Not Waiver of Default 39
SECTION 5.9 Control by Holders of Securities 40
SECTION 5.10Waiver of Past Defaults 40
SECTION 5.11Right of Court to Require Filing of
Undertaking to Pay Costs 41
ARTICLE VICONCERNING THE TRUSTEE 42
SECTION 6.1 Duties of Trustee 42
SECTION 6.2 Rights of Trustee 43
SECTION 6.3 Individual Rights of Trustee 45
SECTION 6.4 Trustee's Disclaimer 45
SECTION 6.5 Notice of Defaults 45
SECTION 6.6 Reports by Trustee to Holders 45
SECTION 6.7 Compensation and Indemnity 45
SECTION 6.8 Replacement of Trustee 46
SECTION 6.9 Successor Trustee by Merger 47
SECTION 6.10 Eligibility; Disqualification 47
SECTION 6.11Preferential Collection of Claims
Against Issuer 47
ARTICLE VIICONCERNING THE SECURITYHOLDERS 48
SECTION 7.1Evidence of Action Taken by
Securityholders 48
SECTION 7.2Proof of Execution of Instruments and of
Holding of Securities 48
SECTION 7.3 Holders to Be Treated as Owners 49
SECTION 7.4Securities Owned by Issuer Deemed Not
Outstanding 49
SECTION 7.5 Right of Revocation of Action Taken 50
ARTICLE VIIISUPPLEMENTAL INDENTURES 51
SECTION 8.1Supplemental Indentures Without Consent of
Securityholders 51
SECTION 8.2Supplemental Indentures With Consent of
Securityholders 52
SECTION 8.3 Effect of Supplemental Indenture 54
SECTION 8.4 Documents to Be Given to Trustee 54
SECTION 8.5Notation on Securities in Respect of
Supplemental Indentures 54
ARTICLE IXCONSOLIDATION, MERGER, SALE OR CONVEYANCE 54
SECTION 9.1 Issuer May Consolidate, etc., on Certain
Terms 54
SECTION 9.2 Successor Issuer Substituted 55
SECTION 9.3 Opinion of Counsel Delivered to Trustee 56
ARTICLE XSATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS 56
SECTION 10.1Satisfaction and Discharge of Indenture 56
SECTION 10.2Application by Trustee of Funds Deposited
for Payment of Securities 59
SECTION 10.3Repayment of Moneys Held by Paying
Agent 59
SECTION 10.4Return of Moneys Held by Trustee
and Paying Agent Unclaimed for Two Years 59
SECTION 10.5Indemnity for U.S. Government Obligations 60
ARTICLE XI MISCELLANEOUS PROVISIONS 60
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability 60
SECTION 11.2Provisions of Indenture for the
Sole Benefit of Parties and Holders
of Securities and Coupons 60
SECTION 11.3Successors and Assigns of Issuer Bound
by Indenture 60
SECTION 11.4Notices and Demands on Issuer, Trustee
and Holders of Securities and Coupons 60
SECTION 11.5Officers' Certificates and Opinions
of Counsel; Statements to Be Contained
Therein 61
SECTION 11.6Payments Due on Saturdays, Sundays
and Holidays 62
SECTION 11.7Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939 63
SECTION 11.8New York Law to Govern 63
SECTION 11.9Counterparts 63
SECTION 11.10 Effect of Headings 63
ARTICLE XIIREDEMPTION OF SECURITIES AND SINKING FUNDS 63
SECTION 12.1Applicability of Article 63
SECTION 12.2Election to Redeem; Notice of
Redemption; Partial Redemptions 63
SECTION 12.3Payment of Securities Called for
Redemption 65
SECTION 12.4Exclusion of Certain Securities
from Eligibility for Selection for
Redemption 66
SECTION 12.5Mandatory and Optional Sinking Funds 66
<PAGE>
THIS INDENTURE, dated as of ________________, 1999, is made and entered
into by and between CBRL GROUP, INC., a Tennessee corporation (the
"Issuer"), and BANKERS TRUST COMPANY, as Trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal
amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication,
delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer 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 I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939 or the definitions of which in the
Securities Act of 1933, as amended, are referred to in the Trust
Indenture Act of 1939, including terms defined therein by reference to
the Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in said force at the date
of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles, and the term "generally
accepted accounting principles" means such accounting principles as are
generally accepted at the time of any computation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular.
"Attributable Debt" shall have the meaning set forth in Section 3.5.
"Authorized Newspaper" means a newspaper (which will be, if practicable,
The Wall Street Journal (eastern edition)) published at least once a day
for at least five days in each calendar week and of general circulation
in The City of New York. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute
a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified by
the secretary or an assistant secretary of the Issuer to have been duly
adopted, or consented to, by the Board of Directors and to be in full
force and effect and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on
which banking institutions are authorized or required by law or
regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934,
as amended, or if at any time after the execution and delivery of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act of 1939, then the body
performing such duties on such date.
"Composite Rate" means, at any time, the rate of interest, per annum,
compounded semiannually, equal to the sum of the rates of interest borne
by the Securities of each series (as specified on the face of the
Securities of each series; provided that, in the case of the Securities
with variable rates of interest, the interest rate to be used in
calculating the Composite Rate shall be the interest rate applicable to
such Securities at the beginning of the year in which the Composite Rate
is being determined and; provided, further, that, in the case of
Securities which do not bear interest, the interest rate to be used in
calculating the Composite Rate shall be a rate equal to the yield to
maturity on such Securities, calculated at the time of issuance of such
Securities) multiplied, in the case of each series of Securities, by the
percentage of the aggregate principal amount of the Securities of all
series Outstanding represented by the Outstanding Securities of such
series.
"Consolidated Funded Indebtedness" means the Funded Indebtedness of the
Issuer and its Consolidated Subsidiaries consolidated in accordance with
generally accepted accounting principles and as provided in the
definition of Funded Indebtedness.
"Consolidated Net Tangible Assets" means the Net Tangible Assets of the
Issuer and its Consolidated Subsidiaries consolidated in accordance with
generally accepted accounting principles and as provided in the
definition of Net Tangible Assets. In determining Consolidated Net
Tangible Assets, minority interests in unconsolidated subsidiaries shall
be included.
"Consolidated Subsidiaries" means subsidiaries the accounts of which are
consolidated with those of the Issuer in the preparation in accordance
with generally accepted accounting principles of its consolidated
financial statements.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which
this Indenture is dated, located in The City of New York.
"Coupon" means any interest coupon appertaining to a Security.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Issuer pursuant
to Section 2.3 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 Registered Global
Securities of that series.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Funded Indebtedness", as used in reference to any corporation, means
all Indebtedness of such corporation which would, in accordance with
generally accepted accounting principles, be classified as funded
indebtedness, but in any event including all Indebtedness, whether
secured or unsecured, of such corporation having a final maturity (or
renewable or extendable at the option of such corporation for a period
ending) more than one year after the date as of which Funded
Indebtedness is to be determined.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by
the Issuer for that purpose in accordance with the terms hereof, and (b)
in the case of any Unregistered Security, the bearer of such Security,
or any Coupon appertaining thereto, as the case may be.
"Indebtedness" means any and all obligations of a corporation for money
borrowed which in accordance with generally accepted accounting
principles would be reflected on the balance sheet of such corporation
as a liability on the date as of which Indebtedness is to be determined.
For the purpose of computing the amount of any Funded or other
Indebtedness of any corporation, there shall be excluded all
Indebtedness of such corporation for the payment or redemption or
satisfaction of which money or securities (or evidences of such
Indebtedness, if permitted under the terms of the instrument creating
such Indebtedness) in the necessary amount shall have been deposited in
trust with the proper depositary, whether upon or prior to the maturity
or the date fixed for redemption of such Indebtedness; and, in any
instance where Indebtedness is so excluded, for the purpose of computing
the assets of such corporation there shall be excluded the money,
securities or evidences of Indebtedness deposited by such corporation in
trust for the purpose of paying or satisfying such Indebtedness.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as provided herein, as so amended or
supplemented or both, and shall include the forms and terms of
particular series of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article VI) CBRL Group,
Inc. and, subject to Article IX, its successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuer
signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer.
"Lien" has the meaning set forth in Section 3.5.
"Net Tangible Assets", as used in reference to the assets of any
corporation, means the total amount of assets of such corporation, both
real and personal (exclusive of licenses, patents, patent applications,
copyrights, trademarks, trade names, good will, experimental or
organizational expense and other like intangibles, treasury stock and
unamortized discount and expense) less the sum of:
(1) all reserves for depletion, depreciation, obsolescence and/or
amortization of its properties (other than those excluded as provided
above) as shown by the books of such corporation (other than general
contingency reserves, reserves representing mere appropriations of
surplus and reserves to the extent related to intangible assets which
have been excluded in calculating Net Tangible Assets as provided
above); and
(2) all Indebtedness and other current liabilities of such corporation
other than (a) Funded Indebtedness, (b) deferred income taxes, (c)
reserves which have been deducted pursuant to the preceding clause (1),
(d) general contingency reserves and reserves representing mere
appropriations of surplus and (e) liabilities to the extent related to
intangible assets which have been excluded in calculating Net Tangible
Assets as provided above.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by the general
corporate counsel of the Issuer or such other legal counsel who may be
an employee of or counsel to the Issuer. Each such opinion shall
include the statements provided for in Section 11.5.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security
(or portion thereof) for which such security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Outstanding", when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this
Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section
10.1) in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act as its own paying
agent); provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided herein, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a person in whose hands such Security is a
legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Security that shall
be deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.1.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal", whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and
premium, if any".
"Principal Property" has the meaning set forth in Section 3.5.
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.4, and bearing the legend prescribed
in Section 2.4.
"Registered Security" means any Security registered on the Security
register of the Issuer.
"Responsible Officer", when used with respect to the Trustee, means the
chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the
executive committee, any vice chairman of the executive committee, the
president, any vice president, the cashier, the secretary, the
treasurer, any trust officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Subsidiary" means a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Issuer or by one
or more subsidiaries of the Issuer, or by the Issuer and one or more
subsidiaries of the Issuer.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended
after such date, the "Trust Indenture Act of 1939" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article VI, shall
also include any successor trustee. "Trustee" shall also mean or
include each Person who is then a trustee hereunder and if at any time
there is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the trustee with respect to the
Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(A).
"Vice president", when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such
series, and calculated in accordance with accepted financial practice.
ARTICLE II.
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by
or pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to rather than set
forth in a Board Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may
have imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as
may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers
executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
_________________________,
as Trustee
By_______________________,
Authorized Officer
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each series shall rank equally and pari passu with all other unsecured
and unsubordinated debt of the Issuer. There shall be established in or
pursuant to one or more Board Resolutions or to the extent established
pursuant to (rather than set forth in) a Board Resolution, in an
Officers' Certificate detailing such establishment and/or established in
one or more indentures supplemental hereto:
(1) the designation of the Securities of the series (which may be part
of a series of Securities previously issued);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall
accrue, on which such interest shall be payable and (in the case of
Registered Securities) on which a record shall be taken for the
determination of Holders to whom interest is payable and/or the method
by which such rate or rates or date or dates shall be determined;
(5) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(6) the right, if any, of the Issuer to redeem Securities, in whole or
in part, at its option and the period or periods within which, the price
or prices at which, and any terms and conditions upon which, Securities
of the series may be redeemed, pursuant to any sinking fund or
otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and
the price or prices at which and the period or periods within which and
any terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation or the right of the Issuer to remarket Securities of the
series that have been redeemed, purchased or repaid;
(8) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in
the case of Unregistered Securities, the denominations in which
Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(10) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index,
formula or method, the manner in which such amounts shall be determined;
(11) whether the Securities of the series will be issuable as Registered
Securities (and if so, whether such Securities will be issuable as
Registered Global Securities) or Unregistered Securities (with or
without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or
the payment of interest thereon and, if other than as provided in
Section 2.8, the terms upon which Unregistered Securities of any series
may be exchanged for Registered Securities of such series and vice
versa;
(12) whether, under what circumstances and in what amounts the Issuer
will pay additional amounts on the Securities of the series held by a
person who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Issuer
will have the option to redeem such Securities rather than pay such
additional amounts;
(13) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, then the form and
terms of such certificates, documents or conditions;
(14) whether warrants shall be attached to such Securities and the terms
of any such warrants;
(15) whether such Securities are exchangeable or convertible into new
Securities of a different series and/or shares of stock of the Issuer
and/or other securities and the terms of such exchange or conversion and
the terms, rights and preferences of such Securities or stock;
(16) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(17) any other events of default or covenants with respect to the
Securities of such series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officers' Certificate
referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same
time and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to such Board Resolution,
such Officers' Certificate or in any such indenture supplemental hereto
and, unless otherwise provided, a series may be reopened for issuances
of additional Securities of such series.
If any of the foregoing terms are not available at the time such Board
Resolutions are adopted, or such Officers' Certificate or any
supplemental indenture is executed, such Board Resolutions, Officers'
Certificate or supplemental indenture may reference the document or
documents to be created in which such terms will be set forth prior to
the issuance of such Securities.
SECTION 2.4. Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below
in this Section, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the order of the Issuer (contained in
the Issuer Order referred to below in this Section) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be
specified from time to time by an Issuer Order. The maturity date,
original issue date, interest rate and any other terms of the Securities
of such series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Issuer Order and procedures. If
provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be
promptly confirmed in writing. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in
relation to such Securities the Trustee shall be entitled to receive and
(subject to Section 6.1) shall be fully protected in relying upon:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to
be delivered to the Issuer;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities and Coupons, if
any, were established;
(3) an Officers' Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms
and terms of the Securities and Coupons, if any, have been established
pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and
covering such other matters as the Trustee may reasonably request; and
(4) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons, if any,
have been duly authorized and established in conformity with the
provisions of this Indenture;
(b) the authentication and delivery of such Securities and Coupons, if
any, by the Trustee are authorized under the provisions of this
Indenture;
(c) such Securities and Coupons, if any, when authenticated and
delivered by the Trustee and issued by the Issuer in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Issuer; and
(d) all laws and requirements in respect of the execution and delivery
by the Issuer of the Securities and Coupons, if any, have been complied
with,
and covering such other matters as the Trustee may reasonably request.
Notwithstanding the provisions of Section 2.3 and of the preceding
paragraph, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary to deliver the Board Resolution
and/or Officers' Certificate otherwise required pursuant to Section 2.3
or the Issuer Order and Opinion of Counsel otherwise required pursuant
to such preceding paragraph at or prior to the time of authentication of
each Security of such series if such documents are delivered at or prior
to the time of authentication upon original issuance of the first
Security of such series to be issued. After the original issuance of
the first Security of such series to be issued, any separate request by
the Issuer that the Trustee authenticate Securities of such series for
original issuance will be deemed to be a certification by the Issuer
that it is in compliance with all conditions precedent provided for in
this Indenture relating to the authentication and delivery of such
Securities.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the
Issuer or if the Trustee in good faith by its board of directors or
board of trustees, executive committee, or a trust committee of
directors or trustees or Responsible Officers shall determine that such
action would expose the Trustee to personal liability to existing
Holders or would affect the Trustee's own rights, duties or immunities
under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more
Registered Global Securities, then the Issuer shall execute and the
Trustee shall, in accordance with this Section and the Issuer Order with
respect to such series, authenticate and deliver one or more Registered
Global Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the
Securities of such series issued and not yet canceled, (ii) shall be
registered in the name of the Depositary for such Registered Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to
the following effect: "Unless and until it is exchanged in whole or in
part for Securities in definitive registered form, this security may not
be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary".
Each Depositary designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf
of the Issuer by the chairman of its Board of Directors or any vice
chairman of its Board of Directors or its president or any vice
president or its treasurer, under its corporate seal (except in the case
of Coupons) which may, but need not, be attested. Such signatures may
be the manual or facsimile signatures of the present or any future such
officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced
on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect
the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so
signed appertains) shall be authenticated and delivered by the Trustee
or disposed of by the Issuer, such Security or Coupon nevertheless may
be authenticated and delivered or disposed of as though the person who
signed such Security or Coupon had not ceased to be such officer of the
Issuer; and any Security or Coupon may be signed on behalf of the Issuer
by such persons as, at the actual date of the execution of such Security
or Coupon, shall be the proper officers of the Issuer, although at the
date of the execution and delivery of this Indenture any such person was
not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the
form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose.
No Coupon shall be entitled to the benefits of this Indenture or shall
be valid and obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains shall
have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Issuer
shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is
entitled to the benefits of this Indenture.
SECTION 27. Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities
or Unregistered Securities in denominations established as contemplated
by Section 2.3 or, with respect to the Registered Securities of any
series, if not so established, in denominations of $1,000 and any
integral multiple thereof. If denominations of Unregistered Securities
of any series are not so established, such Securities shall be issuable
in denominations of $1,000 and $5,000. The Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or
in accordance with such plan as the officers of the Issuer executing the
same may determine with the approval of the Trustee, as evidenced by the
execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution
or resolutions of the Board of Directors of the Issuer referred to in
Section 2.3. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such
series shall be entitled to receive the interest, if any, payable on
such interest payment date notwithstanding any transfer or exchange of
such Registered Security subsequent to the record date and prior to such
interest payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest payment date
for such series, in which case such defaulted interest shall be paid to
the persons in whose names Outstanding Registered Securities for such
series are registered at the close of business on a subsequent record
date (which shall be not less than five Business Days prior to the date
of payment of such defaulted interest) established by notice given by
mail by or on behalf of the Issuer to the Holders of Registered
Securities not less than 15 days preceding such subsequent record date.
The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) for the Securities of
any series shall mean the date specified as such in the terms of the
Registered Securities of such series established as contemplated by
Section 2.3, or, if no such date is so established, if such interest
payment date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such interest payment date is
the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in
which, subject to such reasonable regulations as it may prescribe, it
will provide for the registration of Securities of such series and the
registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any
other form capable of being converted into such form within a reasonable
time. At all reasonable times such register or registers shall be open
for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for
the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the
same series, maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary Unregistered
Securities) and Coupons (except for Coupons attached to any temporary
Unregistered Global Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such
series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at
the agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2 and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, except as
otherwise specified pursuant to Section 2.3, at the option of the Holder
thereof, Unregistered Securities of any series may be exchanged for
Registered Securities of such series having authorized denominations and
an equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Issuer that shall be
maintained for such purpose in accordance with Section 3.2, with, in the
case of Unregistered Securities that have Coupons attached, all
unmatured Coupons and all matured Coupons in default thereto
appertaining, and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest rate and
original issue date are issued in more than one authorized denomination,
except as otherwise specified pursuant to Section 2.3, such Unregistered
Securities may be exchanged for Unregistered Securities of such series
having authorized denominations and an equal aggregate principal amount,
upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2 or as specified pursuant to Section 2.3,
with, in the case of Unregistered Securities that have Coupons attached,
all unmatured Coupons and all matured Coupons in default thereto
appertaining, and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. Unless otherwise specified pursuant to
Section 2.3, Registered Securities of any series may not be exchanged
for Unregistered Securities of such series. Whenever any Securities are
so surrendered for exchange, the Issuer shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. All Securities and Coupons
surrendered upon any exchange or transfer provided for in this Indenture
shall be promptly canceled and disposed of by the Trustee and the
Trustee will deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or
the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by the Holder or his attorney duly
authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding
the first mailing of notice of redemption of Securities of such series
to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security
to be redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered 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.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such
Registered Securities shall no longer be eligible under Section 2.4, the
Issuer shall appoint a successor Depositary with respect to such
Registered Securities. If a successor Depositary for such Registered
Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility, the
Issuer's election pursuant to Section 2.3 that such Registered
Securities be represented by one or more Registered Global Securities
shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication
and delivery of definitive Securities of such series, will authenticate
and deliver, Securities of such series in definitive registered form
without Coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global
Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a
Registered Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for
the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered form without Coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the
Registered Global Security or Securities representing such Registered
Securities, in exchange for such Registered Global Security or
Securities.
If an Event of Default occurs and is continuing with respect to
Registered Securities of any series issued in the form of one or more
Registered Global Securities, upon written notice from the Depository,
the Issuer will execute, and the Trustee, upon receipt of an Officers'
Certificate for the authentication and delivery of definitive Securities
of such series, will authenticate and deliver, Securities of such series
in definitive registered forms without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal
amount of the Registered Global Security or Securities, representing
such Registered Securities, in exchange for such Registered Global
Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary
for such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Securities of the same
series in definitive registered form on such terms as are acceptable to
the Issuer and such Depositary. Thereupon, the Issuer shall execute, and
the Trustee shall authenticate and deliver, without service charge:
(i) to the Person specified by such Depositary a new Registered Security
or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Registered
Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations,
such Registered Global Security shall be canceled by the Trustee or an
agent of the Issuer or the Trustee. Securities in definitive registered
form without Coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the
Issuer or the Trustee. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such
Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent
of the Issuer or the Trustee (any of which, other than the Issuer, shall
rely on an Officers' Certificate and an Opinion of Counsel) shall be
required to exchange any Unregistered Security for a Registered Security
if such exchange would result in adverse Federal income tax consequences
to the Issuer (such as, for example, the inability of the Issuer to
deduct from its income, as computed for Federal income tax purposes, the
interest payable on the Unregistered Securities) under then applicable
United States Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security or any Coupon appertaining
to any Security shall become mutilated, defaced or be destroyed, lost or
stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and
deliver a new Security of the same series, maturity date, interest rate
and original issue date, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen with Coupons corresponding to the
Coupons appertaining to the Securities so mutilated, defaced, destroyed,
lost or stolen, or in exchange or substitution for the Security to which
such mutilated, defaced, destroyed, lost or stolen Coupon appertained,
with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee
such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the
ownership thereof and in the case of mutilation or defacement shall
surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee or its
agent) connected therewith. In case any Security or Coupon which has
matured or is about to mature or has been called for redemption in full
shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may instead of issuing a substitute Security, pay or authorize
the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or
Coupon), if the applicant for such payment shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them
harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and any agent
of the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the
ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security
or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost
or stolen Security or Coupon shall be at any time enforceable by anyone
and shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of such
series duly authenticated and delivered hereunder. All Securities and
Coupons shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, defaced or
destroyed, lost or stolen Securities and Coupons and shall preclude 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 2.10 Cancellation of Securities; Destruction Thereof. All
Securities and Coupons surrendered for payment, redemption, registration
of transfer or exchange, or for credit against any payment in respect of
a sinking or analogous fund, if surrendered to the Issuer or any agent
of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or any agent of the Trustee for cancellation
or, if surrendered to the Trustee, shall be canceled by it (unless such
Securities are to be remarketed pursuant to the terms thereof); and no
Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The
Trustee shall dispose of canceled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. If the Issuer shall
acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented
by such Securities or Coupons unless and until the same are delivered to
the Trustee or any agent of the Trustee or the agent of the Trustee for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the
Trustee shall authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Trustee). Temporary Securities of
any series shall be issuable as Registered Securities without Coupons,
or as Unregistered Securities with or without Coupons attached thereto,
of any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions
and variations as may be appropriate for temporary Registered
Securities, all as may be determined by the Issuer with the concurrence
of the Trustee as evidenced by the execution and authentication thereof.
Temporary Securities may contain such references to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be
executed by the Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect,
as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be
surrendered in exchange therefor without charge at each office or agency
to be maintained by the Issuer for that purpose pursuant to Section 3.2
and, in the case of Unregistered Securities, at any agency maintained by
the Issuer for such purpose as specified pursuant to Section 2.3, and
the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount
of definitive Securities of the same series having authorized
denominations and, in the case of Unregistered Securities, having
attached thereto any appropriate Coupons. Until so exchanged, the
temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series,
unless otherwise established pursuant to Section 2.3. The provisions of
this Section are subject to any restrictions or limitations on the issue
and delivery of temporary Unregistered Securities of any series that may
be established pursuant to Section 2.3.
ARTICLE III.
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly
and punctually pay or cause to be paid the principal of, and interest
on, each of the Securities of such series (together with any additional
amounts payable pursuant to the terms of such Securities) at the place
or places, at the respective times and in the manner provided in such
Securities and in the Coupons, if any, appertaining thereto and in this
Indenture. The interest on Securities with Coupons attached (together
with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only upon presentation and surrender of the
several Coupons for such interest installments as are evidenced thereby
as they severally mature. If any temporary Unregistered Security
provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of
such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if
any, only upon presentation of such Securities for notation thereon of
the payment of such interest, in each case subject to any restrictions
that may be established pursuant to Section 2.3. The interest on
Registered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders thereof and at the option of the
Issuer may be paid by wire transfer (to Holders of $10,000,000 or more
of Registered Securities) or by mailing checks for such interest payable
to or upon the written order of such Holders at their last addresses at
they appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. The Issuer will maintain in The
City of New York an agency where the Registered Securities of each
series may be presented for payment, an agency where the Securities of
each series may be presented for exchange as provided in this Indenture
and, if applicable, pursuant to Section 2.3, an agency where the
Registered Securities of each series may be presented for registration
of transfer as provided in this Indenture.
The Issuer will maintain in The City of New York, an agency where
notices and demands to or upon the Issuer in respect of the Securities
of any series, the Coupons appertaining thereto or this Indenture may be
served.
The Issuer will give to the Trustee written notice of the location of
each such agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section to be
located in The City of New York, or shall fail to give such notice of
the location or of any change in the location of any of the above
agencies, presentations and demands may be made and notices may be
served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
agencies where the Securities of a series and any Coupons appertaining
thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.3 and where the Registered Securities of that
series may be presented for registration of transfer as provided in this
Indenture, and the Issuer may from time to time rescind any such
designation, as the Issuer may deem desirable or expedient; provided,
however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligation to maintain the agencies provided
for in this Section. The Issuer will give to the Trustee prompt written
notice of any such designation or rescission thereof.
SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent 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:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer 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, or Coupons appertaining
thereto, if any, or of the Trustee;
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable; and
(c) that at any time during the continuance of any such failure, upon
the written request of the Trustee, it will forthwith pay to the Trustee
all sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent
a sum sufficient to pay such principal or interest so becoming due, and
(unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the
principal of 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 or the Coupons appertaining thereto a sum
sufficient to pay such principal or interest so becoming due. The
Issuer will promptly notify the Trustee of any failure to take such
action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for any such series by the Issuer
or any paying agent hereunder, as required by this Section, such sums to
be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.4 Written Statement to Trustee. The Issuer will deliver to
the Trustee on or before April 15 in each year (beginning in 1999) a
written statement, signed by two of its officers (which need not comply
with Section 11.5), stating that in the course of the performance by the
signers of their duties as officers of the Issuer they would normally
have knowledge of any default by the Issuer in the performance or
fulfillment of any covenant, agreement or condition contained in this
Indenture, stating whether or not they have knowledge of any such
default and, if so, specifying each such default of which the signers
have knowledge and the nature thereof.
SECTION 3.5 Limitation on Liens. The following provisions shall apply to
the Securities of each series unless specifically otherwise provided in
a Board Resolution, Officers' Certificate or indenture supplemental
hereto as provided pursuant to Section 2.3.
(a) The Issuer will not itself, and will not permit any Consolidated
Subsidiary to, issue, assume or guarantee any Indebtedness, if such
Indebtedness is secured by mortgage, pledge, security interest or other
lien or encumbrance (any mortgage, pledge, security interest or other
lien or encumbrance being hereinafter in this Section 3.5 referred to as
a "Lien") upon or with respect to any Principal Property, as defined
below, or on the capital stock of any Consolidated Subsidiary that owns
Principal Property (unless all obligations and indebtedness thereby
secured are held by the Issuer or a Consolidated Subsidiary) without
making effective provision whereby the Securities shall be secured by
such Lien equally and ratably with any and all other obligations and
indebtedness thereby secured; provided, however, that the foregoing
restrictions shall not be applicable to:
(i) Any Lien existing on any Principal Property of the Issuer or any
Consolidated Subsidiary at the date of this Indenture;
(ii) Any Lien created by a Consolidated Subsidiary in favor of the
Issuer or any wholly-owned Consolidated Subsidiary securing Indebtedness
of such Consolidated Subsidiary to the Issuer or to a wholly-owned
Consolidated Subsidiary;
(iii) Any Lien existing on any asset of any corporation at the time such
corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(iv) Any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Issuer or a
Consolidated Subsidiary and not created in contemplation of such event;
(v) Any Lien on any asset existing at the time of acquisition thereof by
the Issuer or any Consolidated Subsidiary and not created in
contemplation of such event;
(vi) Any Lien on any asset or any improvement thereof securing
Indebtedness incurred or assumed for the purpose of financing all or any
part of the cost of acquiring such asset or the making of any
improvement thereof; provided that such Lien attaches to such asset
concurrently with or within 180 days after the acquisition thereof or
the making of such improvement; and provided, further, that the
principal amount of the Indebtedness secured by any such Lien, together
with all other Indebtedness secured by a Lien on such property, shall
not exceed the purchase price of such property or the cost of such
improvement;
(vii) Any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of
clauses (i) through (vi) above; provided that such Indebtedness is not
increased and is not secured by any additional assets; and
(viii) Liens arising in the ordinary course of business of the Issuer or
any Consolidated Subsidiary which (A) do not secure Indebtedness and (B)
do not in the aggregate materially detract from the value of the assets
of the Issuer or such Consolidated Subsidiary, as the case may be, or
materially impair the use thereof, in the operation of the Issuer's or
such Consolidated Subsidiary's business.
(i) Notwithstanding the provisions of subsection (a) of this Section
3.5, the Issuer or any Consolidated Subsidiary may issue, assume or
guarantee Indebtedness secured by a Lien which would otherwise be
subject to the foregoing restrictions in an aggregate amount which,
together with all other such Indebtedness of the Issuer and its
Consolidated Subsidiaries and the Attributable Debt in respect of Sale
and Lease-Back Transactions (as defined in Section 3.6) existing at such
time (other than Sale and Lease-Back Transactions not subject to the
limitation contained in Section 3.6), does not at the time exceed 10% of
Consolidated Net Tangible Assets. The term "Attributable Debt" as used
in this paragraph shall mean, as of any particular time, the present
value, discounted at the Composite Rate, of the obligation of a lessee
for rental payments during the remaining term of any lease (including
any period for which such lease has been extended or may, at the option
of the lessor, be extended).
(ii) For the purposes of this Section 3.5, the term "Principal Property"
means (i) a parcel of improved or unimproved real estate or other
physical facility or depreciable asset of the Issuer or a Subsidiary,
the net book value of which on the date of determination exceeds 2% of
the Consolidated Net Tangible Assets and (ii) any group of parcels of
real estate, other physical facilities, and/or depreciable assets of the
Issuer and/or its Subsidiaries, the net book value of which, when sold
in one or a series of related Sale and Lease-Back Transactions or
securing Indebtedness issued in respect of such Principal Properties, on
the date of determination exceeds 2% of the Consolidated Net Tangible
Assets. For purposes of the foregoing, "related Sale and Lease-Back
Transactions" refers to any two or more such contemporaneous
transactions which are on substantially similar terms with substantially
the same parties.
SECTION 3.6 Limitation on Sale and Lease-Back. The Issuer will not, nor
will it permit any Consolidated Subsidiary to, enter into any
arrangement with any Person (other than the Issuer) providing for the
leasing by the Issuer or a Consolidated Subsidiary of any Principal
Property (except for temporary leases for a term of not more than three
years), which property has been or is to be sold or transferred by the
Issuer or such Consolidated Subsidiary to such Person (herein referred
to as a "Sale and Lease-Back Transaction"), unless (a) the net proceeds
to the Issuer or such Consolidated Subsidiary from such sale or transfer
equal or exceed the fair value (as determined by the Board of Directors)
of the property so leased, (b) the Issuer or such Consolidated
Subsidiary would be entitled to incur Indebtedness secured by a Lien on
the property to be leased pursuant to Section 3.5, or (c) the Issuer
shall, and in any such case the Issuer covenants that it will, apply an
amount equal to the fair value (as determined by the Board of Directors)
of the property so leased to the retirement (other than any mandatory
retirement), within 90 days of the effective date of any such Sale and
Lease-Back Transaction, of Funded Indebtedness of the Issuer.
ARTICLE IV.
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer covenants and agrees that it
will furnish or cause to be furnished to the Trustee a list in such form
as the Trustee may reasonably require of the names and addresses of the
Holders of the Registered Securities of each series:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Registered Securities, as hereinabove
specified, as of such record date and on dates to be determined pursuant
to Section 2.3 for non-interest bearing Registered Securities in each
year; and
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Issuer of any such request, such list to be as
of a date not more than 15 days prior to the time such information is
furnished;
provided that if and so long as the Trustee shall be the Security
registrar for such series and all of the Securities of any series are
Registered Securities, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists.
(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 each series of Registered Securities (i) contained in the
most recent list furnished to it as provided in Section 4.1 and (ii)
received by it in the capacity of Security registrar for such series, if
so acting. The Trustee may destroy any list furnished to it as provided
in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter 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 other Holders of Securities of a particular series (in
which case the applicants must all hold Securities of such series) or
with holders of all Securities respect to their rights under this
Indenture or under such Securities and such application 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 to such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a)
of this Section; 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 the provisions
of subsection (a) of this Section, and as to the approximate cost of
mailing to such Securityholders 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 Securityholder of such series or all Holders of
Registered Securities, as the case may be, whose name and address appear
in the information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to
be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such
tender, the Trustee shall mail to such applicants and file with the
Commission together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of
Registered Securities of such series or of all Registered Securities, 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
Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections
so sustained have been met, and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Securityholders
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) Each and every Holder of Securities and Coupons, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither
the Issuer nor the Trustee nor any agent of the Issuer 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 of Securities
in accordance with the provisions of subsection (b) of this Section,
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 such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Issuer may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended, or if the
Issuer is not required to file information, documents or reports
pursuant to either of such Sections, then to file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, or in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants provided for
in this Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Securities, in the manner and
to the extent required by Sections 6.6 and 11.4, within 30 days after
the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
subsections (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from
time to time by the Commission.
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default", with respect to Securities of any
series wherever used herein, means each 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):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any of
the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) failure on the part of the Issuer duly to observe or perform any
other covenant or agreement on the part of the Issuer in respect of the
Securities of such series (other than a covenant or warranty in respect
of the Securities of such series a default in the performance or breach
of which is elsewhere in this Section specifically dealt with) or
contained in this Indenture, and continuance of such default or breach
for a period of 90 days after there has been given, by registered or
certified mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of all series affected thereby, a written notice
specifying such failure or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Issuer or any Consolidated Subsidiary
in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or any Restricted Subsidiary or for any
substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(e) the Issuer or any Consolidated Subsidiary shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer
or any Consolidated Subsidiary or for any substantial part of its
property, or make any general assignment for the benefit of creditors;
or
[(f) default (i) in the payment of any principal on any Indebtedness of
the Issuer or any Subsidiary in an aggregate principal amount in excess
of the greater of (a) $____ million or (b) ___% of Consolidated Net
Tangible Assets when due at its final maturity after giving effect to
any applicable grace period and the holder thereof shall have taken
affirmative action to enforce the payment thereof, or (ii) in the
performance of any term or provision of any Indebtedness of the Issuer
or any Subsidiary in an aggregate principal amount in excess of the
greater of (a) $____ million or (b) ___% of Consolidated Net Tangible
Assets that results in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise become due and
payable, unless, in the case of either clause (i) or (ii) above, (x)
such acceleration or action to enforce payment, as the case may be, has
been rescinded or annulled, (y) such Indebtedness has been discharged or
(z) a sum sufficient to discharge in full such Indebtedness has been
deposited in trust by or on behalf of the Issuer, in each case, within a
period of 10 days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Securities of all series affected thereby, a written notice specifying
such default or defaults and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the provisions
of Section 6.1 and 6.2, the Trustee shall not be deemed to have
knowledge of such default unless either (A) a Responsible Officer of the
Trustee shall have actual knowledge of such default or (B) the Trustee
shall have received written notice thereof from the Issuer, from any
Holder, from the holder of any such Indebtedness or from the trustee
under any such mortgage, indenture or other instrument; or]
(g) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of
Security for such series.
If an Event of Default described in clauses (a), (b), (c), (f) or (g)
(if the Event of Default under clause (c), (f) or (g), as the case may
be, is with respect to less than all series of Securities then
Outstanding) occurs and is continuing, 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
each such affected series then Outstanding hereunder (each such series
voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of such affected series are Original
Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all Securities of such
series and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause
(c), (f), (g) (if the Event of Default under clause (c), (f) or (g), as
the case may be, is with respect to all series of Securities then
Outstanding), (d) or (e) occurs and is continuing, then, and in each and
every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to
the Issuer (and to the Trustee if given by Securityholders), may declare
the entire principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the
terms thereof) of all the Securities then Outstanding, and interest
accrued thereon, if any, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of
all the Securities, as the case may be) 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 Issuer 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 (or of all the Securities, as the case may be) and the
principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise
than by acceleration (with interest upon such principal) and, to the
extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series (or at the
respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit)
and such amount as shall be sufficient to cover reasonable compensation
to the Trustee and each predecessor Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of negligence or bad
faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of securities which shall have
become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then and in every such case the Holders of
a majority in aggregate principal amount of all the Securities of such
series, each series voting as a separate class (or of all the
Securities, as the case may be, voting as a single class), then
Outstanding, by written notice to the Issuer and to the Trustee, may
waive all defaults with respect to each such series (or with respect to
all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default 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 has been rescinded
and annulled, the principal amount of such Original Issue Discount
Securities shall 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 acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing
thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any instalment of interest on any of the Securities of
any series when such interest shall have become due and payable, and
such default shall have continued for a period of 30 days or (b) in case
default shall be made in the payment of all or any part of the principal
of any of the Securities of any series when the same shall have become
due and payable, whether upon maturity of the Securities of such series
or upon any redemption or by declaration or otherwise, then upon demand
of the Trustee, the Issuer will pay to the Trustee for the benefit of
the Holders of the Securities of such series the whole amount that then
shall have become due and payable on all Securities of such series, and
such Coupons, for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue principal and, to
the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys
and counsel, and any expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
its negligence or bad faith.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the
Issuer or other obligor upon such Securities and collect in the manner
provided by law out of the property of the Issuer or other obligor upon
such Securities, wherever situated, the moneys adjudged or decreed to be
payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States
Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer
or its property or such other obligor, or in case of any other
comparable judicial proceedings relative to the Issuer or other obligor
upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether
the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal 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 any 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 reasonable compensation to the Trustee
and each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee,
except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the
Issuer or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer or such other obligor;
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of
a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings; and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to
pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.7 except as a result of
Trustee's negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder 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 Securityholder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to
such Securities, may be enforced by the Trustee without the possession
of any of the Securities of such series or Coupons appertaining to such
Securities or the production thereof on any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee, each predecessor Trustee
and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also 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 or Coupons appertaining to such
Securities in respect to which such action was taken, and it shall not
be necessary to make any Holders of such Securities or Coupons
appertaining to such Securities parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be
applied in the following order at the date or dates fixed by the Trustee
and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities and Coupons
appertaining to such Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or
issuing Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only partially
paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which moneys have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.7 except as a result of Trustee's
negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of
such series in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, 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 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 whole amount so due and unpaid
upon the Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without preference or
priority of principal over interest or Yield to maturity, or of interest
or Yield to Maturity over principal, or of any installment of interest
over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate
of such principal and accrued and unpaid interest or Yield to Maturity;
and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee,
then and in every such case the Issuer and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the
Securityholders shall continue as though no such proceedings had been
taken.
SECTION 5.6 Limitations on Suits by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have
any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy
or otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and
of the continuance thereof, as hereinbefore provided, and unless also
the Holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written
request upon the Trustee to institute such action or proceedings in its
own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60
days after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given
to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the taker and Holder of
every Security or Coupon with every other taker and Holder and the
Trustee, that no one or more Holders of Securities of any series or
Coupons appertaining to such Securities shall have any right in any
manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other such
Holder of Securities or Coupons appertaining to such Securities, or to
obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of
all Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of
the provisions of this Section, each and every Securityholder and the
Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such
Security or Coupon on or after the respective due dates expressed in
such Security or Coupon, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such Event of
Default or an acquiescence therein; and, subject to Section 5.6, every
power and remedy given by this Indenture or by law to the Trustee or to
the Holders of Securities or Coupons may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Holders of Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The Holders of a majority
in aggregate principal amount of the Securities of each series affected
(with each series voting as a separate class) at the time 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 by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and the
provisions of this Indenture; and provided, further, that the Trustee
shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee
shall determine that the action or proceedings so directed would involve
the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forbearances specified in or pursuant
to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all series so affected not joining in the
giving of said direction, it being understood that the Trustee shall
have no duty to ascertain whether or not such actions or forbearances
are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is
not inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the acceleration of the
maturity of any Securities of any series as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of
all series at the time Outstanding with respect to which an Event of
Default shall have occurred and be continuing voting as a single class
may on behalf of the Holders of all the Securities of such series waive
any past default or Event of Default described in Section 5.1 and its
consequences, except a default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver, the
Issuer, the Trustee and the Holders of all such Securities shall be
restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have
occurred for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
SECTION 5.11 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken, 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, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder
or group of Securityholders of any series holding in the aggregate more
than 10% in aggregate principal amount of the Securities of such series,
or, in the case of any suit relating to or arising under clause (c), (f)
or (g) of Section 5.1 (if the suit relates to Securities of more than
one but less than all series), 10% in aggregate principal amount of
Securities then Outstanding and affected thereby, or, in the case of any
suit relating to or arising under clause (c), (f), (g) (if the suit
under clause (c), (f) or (g) relates to all the Securities then
Outstanding), (d) or (e) of Section 5.1, 10% in aggregate principal
amount of all Securities then Outstanding, or to any suit instituted by
any Securityholder for the enforcement of the payment of the principal
of or interest on any Security on or after the due date expressed in
such Security or any date fixed for redemption.
ARTICLE VI.
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee.
(1) If an Event of Default has occurred and is continuing with respect
to the Securities of any series, the Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of
care and skill in its exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default with respect to
the Securities of any series:
(1) the Trustee need perform only those duties that are specifically set
forth in 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 the document against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, 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 examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(3) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received
by it pursuant to Section 5.9.
(4) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section
6.1.
(5) No provision of this Indenture shall require the Trustee to extend
or risk its own funds or otherwise incur any financial liability unless
it receives indemnity satisfactory to it against any loss, liability or
expense.
(6) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Issuer.
SECTION 6.2 Rights of Trustee.
(1) The Trustee may rely, and shall be protected in relying, upon on any
document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(3) Subject to the provisions of Section 6.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which
it believes to be authorized or within its rights or powers.
(4) Before the Trustee acts or refrains from acting the Trustee may
consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel.
(5) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee indemnity reasonable to it
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(6) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder.
(7) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, Officer's Certificate, or other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders or not less
than a majority in aggregate principal amount of the Securities then
Outstanding; provided 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, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be
paid by the Issuer or, if advanced by the Trustee, shall be repaid by
the Issuer upon demand.
(8) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(9) the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on
the part of the Issuer, except as otherwise set forth herein, but the
Trustee may require of the Issuer full information and advice as to the
performance of the covenants, conditions and agreements contained herein
and shall be entitled in connection herewith to examine the books,
records and premises of the Issuer.
(10) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall
not be answerable for other than its negligence or willful default.
(11) except for (i) a default under Section 5.1(a) or (b) hereof or (ii)
any other event of which the Trustee ha "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall
not be deemed to have notice of any default or event unless specifically
notified in writing of such event by the Issuer or the Holders of not
less than 25% in aggregate principal amount of the Securities
Outstanding; as used herein, the term "actual knowledge" means the
actual fact or statement of knowing, without any duty to make any
investigation with regard thereto.
SECTION 6.3 Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and
may otherwise deal with the Issuer or its affiliates with the same
rights it would have if it were not Trustee. Any paying agent,
registrar or co-registrar may do the same with like rights. However,
the Trustee must comply with Sections 6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Issuer's use of the proceeds from the
Securities, it shall not be responsible for any statement in the
registration statement for the Securities under the Securities Act of
1933, as amended, or in the Indenture or the Securities (other than its
certificate of authentication).
SECTION 6.5 Notice of Defaults. If a default occurs and is continuing
with respect to any Securities of any Series and if the Trustee has
actual knowledge of such default, the Trustee shall give to each
Securityholder of such series notice of the default within 90 days after
such default occurs. Except in the case of a default described in
Section 5.1(a) or (b), the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Securityholders of
such series.
SECTION 6.6 Reports by Trustee to Holders. Within 60 days after each
July 1 beginning with the July 1 following the date of this Indenture,
the Trustee shall mail to each Securityholder of any Series and each
other person specified in Section 313(c) of the Trust Indenture Act of
1939 a brief report dated as of such July 1 that complies with Section
313(a) of the Trust Indenture Act of 1939 to the extent required
thereby. The Trustee also shall comply with Section 313(b) of the Trust
Indenture Act of 1939.
A copy of each report at the time of its mailing to Securityholders of
any series shall be filed with the Commission and each securities
exchange on which the Securities of any series are listed. The Issuer
agrees to notify the Trustee whenever the Securities of any series
become listed on any securities exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity. The Issuer agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed to in writing between
the Issuer and the Trustee for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses, advances and disbursements of
its agents and counsel), except to the extent any such expense,
disbursement or advance may be attributable to its negligence or willful
misconduct; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense arising out of or in connection with the
acceptance or administration of this trust or the performance of its
duties hereunder, including the costs and expenses of defending itself
against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except
to the extent that any such loss, liability or expense may be
attributable to its negligence or willful misconduct.
As security for the performance of the obligations of the Issuer in this
Section 6.7, the Trustee shall have a lien prior to the Securities on
all money or property held or collected by the Trustee, except that held
in trust to pay the principal of or interest, if any, on particular
Securities.
"Trustee" for purpose of this Section 6.7 includes any predecessor
trustee, provided that the negligence or bad faith of any Trustee shall
not be attributable to any other Trustee.
The Issuer's payment obligations pursuant to this Section 6.7 shall
constitute additional indebtedness hereunder and shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a default specified in Sections 5.1(d) and 5.1(e), such
expenses (including reasonable fees and expenses of its counsel) are
intended to constitute expenses of administration under bankruptcy law.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any time
with respect to Securities of one or more series by so notifying the
Issuer; provided, however, no such resignation shall be effective until
a successor Trustee has accepted its appointment pursuant to this
Section 6.8. The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any series may remove the Trustee with
respect to such series at the time outstanding by so notifying the
Trustee and the Issuer. The Issuer shall remove the Trustee if:
(a) the Trustee fails to comply with Section 6.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one
or more series, the Issuer shall promptly appoint, by resolution of its
Board of Directors, a successor Trustee with respect to the Securities
of such Series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective,
and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture with respect to the Securities of
such series. The successor Trustee shall mail a notice of its
succession to Securityholders so affected. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 6.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer
or the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act
shall be the successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of Section 310(a)(1) of the Trust
Indenture Act of 1939. The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. Neither the Issuer nor any person
directly or indirectly controlling, controlled by or under common
control with the Issuer shall serve as Trustee hereunder. The Trustee
shall comply with Section 310(b) of the Trust Indenture Act of 1939.
SECTION 6.11 Preferential Collection of Claims Against Issuer. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of
1939, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act of 1939. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act of
1939 to the extent indicated therein.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the
Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this
Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in
the following manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer
of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged
to him the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where
such execution is by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also constitute
sufficient proof of the authority of the person executing the same. The
fact of the holding by any Holder of an Unregistered Security of any
series, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by
a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a
Security of such series bearing a specified identifying number was
deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate.
Any such certificate may be issued in respect of one or more
Unregistered Securities of one or more series specified therein. The
holding by the person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed to continue
for a period of one year from the date of such certificate unless at the
time of any determination of such holding (1) another certificate
bearing a later date issued in respect of the same Securities shall be
produced, or (2) the Security of such series specified in such
certificate shall be produced by some other person, or (3) the Security
of such series specified in such certificate shall have ceased to be
Outstanding. Subject to Sections 6.1 and 6.2, the fact and date of the
execution of any such instrument and the amount and numbers of
Securities of any series held by the person so executing such instrument
and the amount and numbers of any Security or Securities for such series
may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such series or in
any other manner which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate
of the Security registrar.
SECTION 7.3 Holders to Be Treated as Owners. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register
for such series 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) for the purpose of receiving payment
of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Security and for all other purposes;
and neither the Issuer nor the Trustee nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. The
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the Holder of any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon (whether or
not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all
other purposes and neither the Issuer, the Trustee, nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, 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
Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have concurred in
any direction, consent or waiver under this Indenture, Securities which
are owned by the Issuer or any other obligor on the Securities with
respect to which such determination is being made or by any person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall
be disregarded and deemed not to be Outstanding for the purpose 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 which the Trustee knows are so owned shall be
so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to so act with respect
to such Securities and that the pledgee is not the Issuer or any other
obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control
with the Issuer or any other obligor on the Securities. In case of a
dispute as to such right, the advice of counsel shall be full protection
in respect of any decision made by the Trustee in accordance with such
advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for
the account of any of the above-described persons; and, subject to
Sections 6.1 and 6.2, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set
forth and of the fact that all Securities not listed therein are
Outstanding for the purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the securities of any or all series, as
the case may be, specified in this Indenture in connection with such
action, any Holder of a Security the serial number of which is shown by
the evidence to be included among the serial numbers of the Securities
the Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding
as provided in this Article, 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 Securities
issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders
of the percentage in aggregate principal amount of the Securities of any
or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by
such action.
ARTICLE VIII.
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors
(which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), 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 of 1939 as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer pursuant to
Article IX;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee
shall consider to be for the protection of the Holders of Securities or
Coupons, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set
forth; provided that in respect of any such additional covenant,
restriction, condition or provision 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 an Event of Default
or may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event
of Default;
(d) 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, or to make any other provisions as the Issuer
may deem necessary or desirable; provided that no such action shall
adversely affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the form of terms or Securities of any series or of the
Coupons appertaining to such Securities as permitted by Sections 2.1 and
2.3; and
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the
requirements of Section 6.8.
The Trustee is hereby authorized to join with the Issuer 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.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the
provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article VII) of the Holders
of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer, when
authorized by a resolution of its Board of Directors (which resolution
may provide general terms or parameters for such action and may provide
that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), 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
of 1939 as in force at the date of execution thereof) 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 or of
modifying in any manner the rights of the Holders of the Securities of
each such series or of the Coupons appertaining to such Securities;
provided that no such supplemental indenture shall (a) extend the final
maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon an acceleration of the maturity thereof pursuant to
Section 5.1 or the amount thereof provable in bankruptcy pursuant to
Section 5.2, or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, in each case without the
consent of the Holder of each Security so affected, or (b) reduce the
aforesaid percentage 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 each Security so affected.
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 Holders of Securities of such series, or
of Coupons appertaining to such Securities, with respect to such
covenant or provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series or of
the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution of
its Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of
the Issuer authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by
Section 7.1, the Trustee shall join with the Issuer 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.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a
notice thereof by first-class mail to such Holders at their addresses as
they shall appear on the Security register, (ii) if any Unregistered
Securities of a series affected thereby are then Outstanding, to the
Holders thereof who have filed their names and addresses with the
Trustee, by mailing a notice thereof by first-class mail to such Holders
at such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof
at least once in an Authorized Newspaper in the Borough of Manhattan,
The City of New York, and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any failure
of the Issuer to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer
and the Holders of Securities of each series affected thereby 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.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article complies with
the applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions
of this Article may bear a notation in form approved by the Trustee for
such series as to any matter provided for by such supplemental indenture
or as to any action taken by Securityholders. If the Issuer or the
Trustee shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Board of Directors, to
any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Issuer, authenticated by the Trustee
and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. The Issuer
covenants that it will not merge or consolidate with any other person or
sell or convey (including by way of lease) all or substantially all of
its assets to any Person, unless (i) either the Issuer shall be the
continuing corporation, or the successor corporation or the Person which
acquires by sale or conveyance substantially all the assets of the
Issuer (if other than the Issuer) shall be a corporation or entity
organized under the laws of the United States of America or any state
thereof and shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities and Coupons, 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 or
observed by the Issuer, by supplemental indenture satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation or
entity, and (ii) the Issuer, such Person or such successor corporation
or entity, as the case may be, shall not, immediately after such merger
or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition.
SECTION 9.2 Successor Issuer Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation
shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein. Such successor corporation may cause to
be signed, and may issue either in its own name or in the name of the
Issuer prior to such succession any or all of the Securities issuable
hereunder which, together with any Coupons appertaining thereto,
theretofore shall not have been signed by the Issuer and delivered to
the Trustee; and, upon the order of such successor corporation instead
of the Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall
deliver any Securities, together with any Coupons appertaining thereto,
which previously shall have been signed and delivered by the officers of
the Issuer to the Trustee for authentication, and any Securities,
together with any Coupons appertaining thereto, which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued, together
with any Coupons appertaining thereto, shall in all respects have the
same legal rank and benefit under this Indenture as the Securities and
Coupons theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities and Coupons had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made
in the Securities and Coupons thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease), the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel Delivered to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Opinion of Counsel, prepared in accordance with Section 11.5, as
conclusive evidence that any such consolidation, merger, sale, lease or
conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
ARTICLE X.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at any
time (a) the Issuer shall have paid or caused to be paid the principal
of and interest on all the Securities of any series Outstanding
hereunder and all unmatured Coupons appertaining thereto (other than
Securities of such series and Coupons appertaining thereto which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for
cancellation all Securities of any series theretofore authenticated and
all unmatured Coupons appertaining thereto (other than any Securities of
such series and Coupons appertaining thereto which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9), or (c) in the case of any series of Securities
where the exact amount of principal of and interest due on such
Securities can be determined at the time of making the deposit referred
to in clause (ii) below, (i) all the Securities of such series and all
unmatured Coupons appertaining thereto 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 (ii) the Issuer
shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Issuer in accordance
with Section 10.4) or direct obligations of the United States of
America, backed by its full faith and credit ("U.S. Government
Obligations"), maturing as to principal and interest in such amounts and
at such times as will insure the availability of cash, or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and interest
on all Securities of such series and Coupons appertaining thereto on
each date that such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments are
due and payable in accordance with the terms of the Indenture and the
Securities of such series, and if, in any such case, the Issuer shall
also pay or cause to be paid all other sums payable hereunder by the
Issuer with respect to Securities of such series, then this Indenture
shall cease to be of further effect with respect to Securities of such
series (except as to (i) rights of registration of transfer and exchange
of Securities of such series, and of Coupons appertaining thereto, and
the Issuer's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons,
(iii) rights of Holders of Securities and Coupons appertaining thereto
to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) the rights (including the Trustee's rights under
Section 10.5), obligations and immunities of the Trustee hereunder, (v)
the rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.2) and the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel which complies with Section 11.5 and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such
series; provided that the rights of Holders of the Securities and
Coupons to receive amounts in respect of principal of and interest on
the Securities and Coupons held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. The Issuer
agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant
to Section 2.3. In addition to discharge of the Indenture pursuant to
the next preceding paragraph, in the case of any series of Securities
the exact amounts of principal of and interest subsequently due on which
can be determined at the time of making the deposit referred to in
clause (a) below, the Issuer shall be deemed to have paid and discharged
the entire Indebtedness on all the Securities of such a series and the
Coupons appertaining thereto on the 121st day after the date of the
deposit referred to in subparagraph (a) below, and the provisions of
this Indenture with respect to the Securities of such series and Coupons
appertaining thereto shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Securities of such
series, and of Coupons appertaining thereto, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons,
(iii) rights of Holders of Securities and Coupons appertaining thereto
to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration) and
remaining rights of the Holders to receive sinking fund payments, if
any, (iv) the rights (including the Trustee's rights under Section
10.5), obligations and immunities of the Trustee hereunder, (v) the
rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.2) and the Trustee,
at the expense of the Issuer, shall at the Issuer's request, execute
proper instruments acknowledging the same, if:
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
such series and Coupons appertaining thereto (i) cash in an amount or
U.S. Government Obligations, maturing as to principal and interest at
such times and in such amounts as will insure the availability of cash,
or (ii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay (A)
the principal and interest on all Securities of such series and Coupons
appertaining thereto on the date that such principal or interest is due
and payable and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of
the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Officers' Certificate or
an opinion of independent legal counsel satisfactory to the Trustee to
the effect that Holders of the Securities of such series and Coupons
appertaining thereto 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
(d) the Issuer has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this provision
have been complied with, and the Opinion of Counsel shall also state
that such deposit does not violate applicable law.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 10.1 shall be held in
trust and applied by it to the payment, either directly or through any
paying agent (including the Issuer acting as its own paying agent), to
the Holders of the particular Securities of such series and of Coupons
appertaining thereto 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 interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of
Securities shall, upon demand of the Issuer, be repaid to it or paid to
the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable shall, upon the
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law,
be repaid to the Issuer by the Trustee for such series or such paying
agent, and the Holder of the Securities of such series and of any
Coupons appertaining thereto shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which
such Holder may be entitled to collect, and all liability of the Trustee
or any 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 with respect to moneys deposited
with it for any payment (a) in respect of Registered Securities of any
series, shall at the expense of the Issuer, mail by first-class mail to
Holders of such Securities at their addresses as they shall appear on
the Security register, and (b) in respect of Unregistered Securities of
any series, shall at the expense of the Issuer cause to be published
once, in an Authorized Newspaper in the Borough of Manhattan, The City
of New York, notice, that such moneys remain and that, after a date
specified therein, which shall not be less than 30 days from the date of
such mailing or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.1 or the principal or interest received in
respect of such obligations.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or
future stockholder, officer or director, as such, of the Issuer or
Trustee or of any successor of either of them, either directly or
through the Issuer or Trustee or any successor of either of them, under
any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities and the Coupons appertaining thereto by the
Holders thereof and as part of the consideration for the issue of the
Securities and the Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any person, firm or corporation,
other than the parties hereto and their successors and the Holders of
the Securities or Coupons, if any, any legal or equitable right, remedy
or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors and of the Holders of the
Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons. 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 the Holders of Securities or Coupons to or on the Issuer
may be given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee)
to CBRL Group, Inc., 305 Hartmann Drive, Lebanon, Tennessee 37087,
Attention: _____________. Any notice, direction, request or demand by
the Issuer or any Holder of Securities or Coupons to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at _____________________________
_______________, Attention: _______________.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register. In any case where notice to such
Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer
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.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of
any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or
condition, (b) 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, (c) 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 (d) a statement as to whether or not, in the opinion
of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that
the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any certificate, statement or opinion
of counsel may be based, insofar as it relates to factual matters or
information with respect to which is in the possession of the Issuer,
upon the certificate, statement or opinion of or representations by an
officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon
a certificate or opinion of or representations by an accountant or firm
of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the
same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that
such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for
redemption or repayment of any such Security or Coupon shall not be a
Business Day, then payment of interest or principal 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 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this
Indenture which is required by the Trust Indenture Act of 1939, such
required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as
the case may be.
SECTION 11.8 New York Law to Govern. This Indenture and each Security
and Coupon shall be deemed to be a contract under the laws of the State
of New York, and for all purposes shall be construed in accordance with
the laws of such State, except as may otherwise be required by mandatory
provisions of law.
SECTION 11.9 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 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
ARTICLE XII.
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 12.2 Election to Redeem; Notice of Redemption; Partial
Redemptions. The election of the Issuer to redeem any Securities shall
be evidenced by, or pursuant to, a Board Resolution which shall identify
the Securities to be redeemed. In the case of any redemption at the
election of the Issuer of the Securities of any series with the same
issue date, interest rate and stated maturity, the Issuer shall, at
least 60 days prior to the redemption date fixed by the Issuer (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee
of the principal amount of securities of such series to be redeemed.
Notice of redemption to the Holders of Registered Securities of any
series to be redeemed as a whole or in part at the option of the Issuer
shall be given by mailing notice of such redemption by first-class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption to such Holders of Securities of such series
at their last addresses as they shall appear upon the registry books.
Notice of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and addresses
with the Trustee, shall be given by mailing notice of such redemption,
by first-class mail, postage prepaid, at least 30 days and not more than
60 days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any
such notice given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of redemption to all
other Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York,
once in each of three successive calendar weeks, the first publication
to be not less than 30 days nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail,
or any defect in the notice to the Holder of any Security of a 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.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place
or places of payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with Coupons
attached thereto, of all Coupons appertaining thereto maturing after the
date fixed for redemption, that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue.
In case any Security of a series is to be redeemed in part, only the
notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the
Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.3) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. If less than all the
Outstanding Securities of a series are to be redeemed at the election of
the Issuer, the Issuer will deliver to the Trustee at least 60 days
prior to the date fixed for redemption (unless a shorter notice shall be
satisfactory to the Trustee) an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed. In case of a
redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to
this Section, an Officers' Certificate stating that such restriction has
been complied with.
If less than all the Securities of any series with the same issue date,
interest rate and stated maturity are to be redeemed, the Trustee shall
select, in such manner as it shall deem appropriate and fair (which may
provide for the selection for redemption of portions of the principal
amount of Registered Securities of such series), the particular
Securities of such Series to be redeemed. Securities may be redeemed in
part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall
promptly notify the Issuer in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to
be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided above, 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 said date (unless the Issuer shall default
in the payment of such Securities at the redemption price, together with
interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the
unmatured Coupons, if any, appertaining thereto shall be void, and,
except as provided in Sections 6.5 and 10.4, such Securities shall cease
from and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall
have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place
of payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed
by the Issuer at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption; provided that payment
of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached
thereto, to the Holders of the Coupons for such interest upon surrender
thereof, and in the case of Registered Securities, to the Holders of
such Registered Securities registered as such on the relevant record
date subject to the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or
duly provided for, bear interest from the date fixed for redemption at
the rate of interest or Yield to Maturity (in the case of an Original
Issue Discount Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing
after the date fixed for redemption, the surrender of such missing
Coupon or Coupons may be waived by the Issuer and the Trustee, if there
be furnished to each of them such security or indemnity as they may
require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so
presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee
at least 40 days prior to the last date on which notice of redemption
may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for
by the terms of the Securities of any series is herein referred to as an
"optional sinking fund payment". The date on which a sinking fund
payment is to be made is herein referred to as the "sinking fund payment
date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities
of such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Issuer and delivered to
the Trustee for cancellation pursuant to Section 2.10, (b) receive
credit for optional sinking fund payments (not previously so credited)
made pursuant to this Section or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Issuer through
any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (which need not contain the statements required by Section
11.5) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by
credit of Securities of such series and the basis for such credit, (b)
stating that none of the Securities of such series has theretofore been
so credited, (c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred (which have
not been waived or cured) and are continuing and (d) stating whether or
not the Issuer intends to exercise its right to make an optional sinking
fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to
pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to
the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall
be delivered for cancellation pursuant to Section 2.10 to the Trustee
with such Officers' Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officers' Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such 60th
day, to deliver such Officers' Certificate and Securities specified in
this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the
Issuer (i) that the mandatory sinking fund payment for such series due
on the next succeeding sinking fund payment date shall be paid entirely
in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Issuer shall so request)
with respect to the Securities of any particular series, such cash shall
be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption
price together with accrued interest to the date fixed for redemption.
If such amount shall be $50,000 or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of $50,000
is available. The Trustee shall select, in the manner provided in
Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said
cash, as nearly as may be, and shall (if requested in writing by the
Issuer) inform the Issuer of the serial numbers of the Securities of
such series (or portions thereof) so selected. Securities shall be
excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers'
Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Issuer or (b) an
entity specifically identified in such Officers' Certificate as directly
or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such
series to be given in substantially the manner provided in Section 12.2
(and with the effect provided in Section 12.3) for the redemption of
Securities of such series in part at the option of the Issuer. The
amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any
and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with
other moneys, if necessary, sufficient for the purpose, to the payment
of the principal of, and interest on, the Securities of such series at
maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities; provided
that it shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall,
during the continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of all such
Securities. In case such Event of Default shall have been waived as
provided in Section 5.10 or the default cured on or before the sixteenth
day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such
Securities.
[signature page follows]<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of ___________________, 1999.
CBRL GROUP, INC.
By
Title:
[CORPORATE SEAL]
Attest:
By
Title:
BANKERS TRUST COMPANY,
as Trustee
By
Title:
[CORPORATE SEAL]
Attest:
By
Title:
STATE OF TENNESSEE )
) ss:
COUNTY OF _________ )
On this _____ of _________________, 1999 before me personally came
__________________, to me known, who, being by me duly sworn, did depose
and say that he is the ___________________ of CBRL Group, Inc., one of
the corporations described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and
that he signed his name thereto by like authority.
____________________
Notary Public
STATE OF ___________ )
) ss:
COUNTY OF __________ )
On this _____ of _____________, 1999 before me personally came
_______________, to me known, who, being by me duly sworn, did depose
and say that he is the __________________ of ______________, one of the
corporations described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
___________________
Notary Public
Exhibit 12
<TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
<CAPTION>
Three
Fiscal Year Ended Months Ended
July 29, July 28, August 2, August 1, July 31, October 31, October 30,
1994 1995 1996 1997 1998 1997 1998
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings as Defined
Income before income taxes and change
in accounting principle 90,568 105,333 102,380 137,457 164,730 37,553 41,415
Fixed charges, excluding capitalized interest 4,947 4,190 4,668 7,072 8,719 2,432 2,334
Total Earnings as Defined 95,515 109,523 107,048 144,529 173,449 39,985 43,749
Interest expense (including capitalized
interest) 3,670 2,795 2,379 4,182 4,981 1,447 1,189
1/3 of rental expense 2,811 3,467 4,299 4,983 5,693 1,372 1,549
Total Fixed Charges as Defined 6,481 6,262 6,678 9,165 10,674 2,819 2,738
Ratio of Earnings to Fixed Charges 14.7 17.5 16.0 15.8 16.2 14.2 16.0
</TABLE>
<PAGE>
Note: Earnings used to complete this ratio are before income taxes and
before fixed charges (excluding interest) capitalized during the
period). Fixed charges consist of interest, whether or not capitalized,
amortization of debt discount and expense, and one-third of all rent
expense for operating leases (considered representative of the interest
factor).
Exhibit 15
LETTER REGARDING UNAUDITED INTERIM FINANCIAL INFORMATION
CBRL Group, Inc.
Hartmann Drive
Lebanon, Tennessee 37088-0787
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited
interim financial information of CBRL Group, Inc. (formerly Cracker
Barrel Old Country Store, Inc.) and subsidiaries for the quarters ended
October 30, 1998 and October 31, 1997, as indicated in our report dated
December 4, 1998; because we did not perform an audit, we expressed no
opinion on that information.
We are aware that our report referred to above, which was included in
your Quarterly Report on Form 10-Q for the quarter ended October 30,
1998, is being used in this Registration Statement.
We also are aware that the aforementioned report, pursuant to Rule
436(c) under the Securities Act of 1933, is not considered a part of the
Registration Statement prepared or certified by an accountant or a
report prepared or certified by an accountant within the meaning of
Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
/S/ DELOITTE & TOUCHE LLP
Nashville, Tennessee
March 12, 1999
Exhibit 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of CBRL Group, Inc. (formerly Cracker Barrel Old Country
Store, Inc.) on Form S-3 of our report dated September 9, 1998,
appearing in and incorporated by reference in the Annual Report on Form
10-K of Cracker Barrel Old Country Store, Inc. for the year ended July
31, 1998 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
/S/ Deloitte & Touche LLP
Nashville, Tennessee
March 12, 1999
