Registration No. 333-631
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
AMENDMENT
NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_______________
BERGEN BRUNSWIG CORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 22-1444512
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4000 Metropolitan Drive
Orange, California
92668-3510
(714) 385-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
_______________
MILAN A. SAWDEI
Secretary
4000 Metropolitan Drive
Orange, California 92668-3510
(714) 385-4255
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_______________
Please send copies of all communications to:
Richard M. Sandler, Esq.
Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
65 Livingston Avenue
Roseland, New Jersey 07068
_______________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement,
as determined in light of 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. [x]
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Title of each class maximum aggregate Amount of
of securities to be Amount to be offering price offering registration
registered (1) registered per unit price (2) fee (2)
_____________________________________________________________________________________________
<S> <C> <C> <C> <C>
Debt Securities,
Preferred Stock,
Depositary Shares,
Class A Common
Stock (including preferred
share purchase rights),
Debt Securities Warrants,
Preferred Stock Warrants,
Depositary Shares Warrants
and Class A Common Stock
Warrants (4). . . . . . . . . (3) (3) (3)$400,000,000 $137,932
____________________________________________________________________________________________
<FN>
(1) Any securities registered hereunder may be issued by the Registrant
pursuant to delayed delivery contracts under which the counterparty may
be required to purchase Debt Securities, Preferred Stock, Depositary
Shares, Class A Common Stock and/or Warrants. In addition, any
securities registered hereunder may be sold separately or together as
units with other securities registered hereunder. Preferred share
purchase rights are currently attached to, and trade with, the
Registrant's Class A Common Stock and entitle the holder thereof to
purchase one-one hundredth of a share of the Registrant's Series A
Junior Preferred Stock. If Class A Common Stock is issued, these rights
will be issued for no additional consideration.
(2) Estimated solely for the purpose of calculating the registration fee
and exclusive of accrued interest, if any. The amount of the filing
fee, calculated in accordance with Rule 457(o) of the rules and
regulations under the Securities Act of 1933, as amended, equals one
twenty-ninth of one percent of the maximum offering price of all of the
securities listed above.
(3) Not applicable pursuant to General Instruction II.D of Form S-3 under
the Securities Act of 1933.
(4) Includes Class A Common Stock (including preferred share purchase
rights), Preferred Stock and Depositary Shares which may be issued in
exchange for, or upon conversion or exercise of, the Debt Securities,
Preferred Stock, Depositary Shares or Warrants issued under this
Registration Statement. No separate consideration will be received for
any of the foregoing securities that are issued in exchange for, or
upon conversion or exercise of, the Debt Securities, Preferred Stock,
Depositary Shares or Warrants.
</TABLE>
_____________
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.
_______________________________________________________________________________
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH __, 1996
PROSPECTUS
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BERGEN BRUNSWIG CORPORATION
Securities
Bergen Brunswig Corporation (the "Company") may from time to time offer in
one or more series (i) its unsecured senior or subordinated debt securities (the
"Debt Securities"), (ii) shares of its preferred stock, no par value (the
"Preferred Stock"), (iii) Depositary Shares (as defined below), (iv) shares of
its Class A Common Stock, par value $1.50 per share (including preferred share
purchase rights) (the "Class A Common Stock"), (v) warrants to purchase Debt
Securities (the "Debt Securities Warrants"), (vi) warrants to purchase Preferred
Stock (the "Preferred Stock Warrants"), (vii) warrants to purchase Depositary
Shares (the "Depositary Shares Warrants") and (viii) warrants to purchase Class
A Common Stock (the "Class A Common Stock Warrants" and, together with the Debt
Securities Warrants, the Preferred Stock Warrants and the Depositary Shares
Warrants, the "Warrants"), with an aggregate initial public offering price of up
to $400,000,000, or the equivalent thereof in one or more foreign currencies or
composite currencies, on terms to be determined at the time of sale. The Debt
Securities, Preferred Stock, Depository Shares, Class A Common Stock and
Warrants are collectively referred to herein as the "Offered Securities". The
Offered Securities may be offered, separately or as part of units consisting of
one or more such securities ("Units"), in separate series, in amounts, at prices
and on terms to be determined at the time of sale and to be set forth in one or
more supplements to this Prospectus (each a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be described in a Prospectus Supplement. The
applicable Prospectus Supplement will describe, among other things and where
applicable, the following: (i) in the case of Debt Securities, the specific
designation, priority, aggregate principal amount, premium, denominations,
maturity, rate (which may be fixed or variable) and required time of payment of
any interest, terms for redemption at the option of the Company, terms of any
repayment at the option of the holder, terms for sinking fund payments, terms
for conversion or exchange into other securities of the Company, provisions
regarding any original issue discount and the initial public offering price;
(ii) in the case of Preferred Stock, the specific title and stated value, number
of shares, any dividend, liquidation, redemption, conversion, exchange, voting
and other preferences and rights, and the initial public offering price; (iii)
in the case of Class A Common Stock, the number of shares, the initial public
offering price and any dividend, voting and other rights; and (iv) in the case
of Warrants, the duration, offering price, exercise price, exercise dates and
procedures, detachability and terms of the Company's securities for which they
are exercisable. In addition, the Prospectus Supplement will describe whether
interests in Preferred Stock will be represented by depositary shares (the
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<PAGE>
"Depositary Shares") evidenced by depositary receipts(the "Depositary
Receipts"). Units may be issued in amounts, at prices, on terms and containing
such conditions, covenants and other provisions, and consisting of such Offered
Securities, as will be set forth in the applicable Prospectus Supplement. Such
Prospectus Supplement will also contain information, where applicable and deemed
material, about certain United States federal income tax considerations relating
to the Offered Securities and any listing on a securities exchange of the
Offered Securities covered by such Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company, to or through underwriters or dealers, or
through a combination of such methods. If any agents, underwriters or dealers
are involved in the sale of any of the Offered Securities, their names, and any
applicable fee, commission, purchase price or discount arrangements with them,
as well as the estimated net proceeds to the Company from such sale, will be set
forth, or will be calculable from the information set forth, in a Prospectus
Supplement. See "Plan of Distribution" for a description of possible
indemnification arrangements for any such agents, underwriters or dealers.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is March , 1996.
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<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE (IN
THE CASE OF CLASS A COMMON STOCK OR OTHER OFFERED SECURITIES LISTED THEREON), IN
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3(the "Registration Statement")
(of which this Prospectus is a part) under the Securities Act of 1993, as
amended (the "Securities Act"), with respect to the Offered Securities. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain portions of which have been omitted as permitted by the rules
and regulations of the Commission. Statements contained in this Prospectus as
to the contents of any contract or other document are not necessarily complete,
and in each instance reference is made to the copy of such contract or other
document filed as an exhibit to the Registration Statement, each such statement
being qualified in all respects by such reference and such exhibits. For
further information regarding the Company and the Offered Securities, reference
is hereby made to the Registration Statement and such exhibits and schedules
which may be obtained from the Commission at its principal office in Washington,
D.C. upon payment of the fees prescribed by the Commission.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. The Registration Statement, the exhibits and the schedules forming
a part thereof and the reports, proxy statements and other information filed by
the Company with the Commission in accordance with the Exchange Act can be
inspected and copied at the Commission's Public Reference Section, 450 Fifth
Street, N.W.,Room 1024, Washington, D.C. 20549, and at the following regional
offices of the Commission: Seven World Trade Center, Suite 1300, New York, New
York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material can be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at
prescribed rates. In addition, the Company's Class A Common Stock and certain
of its debt securities are listed on the New York Stock Exchange and similar
information concerning the Company can be inspected and copied at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
_______________
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("dollars", "U.S.
dollars" or "U.S. $").
_______________
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company with the
Commission and are incorporated herein by reference:
(1) Annual Report on Form 10-K for the fiscal year ended September 30, 1995;
(2) Quarterly Report on Form 10-Q for the three months ended December
31, 1995;
(3) the description of the Company's Preferred Share Purchase Rights
included in the Company's Registration Statement on Form 8-A dated
February 14, 1994; and
(4) the description of the Company's Class A Common Stock as set forth in
the Company's Registration Statement on Form 8-A dated October 20, 1993.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Offered Securities shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents) will be provided without charge to
each person, including any beneficial owner, to whom this Prospectus is
delivered, upon request. Copies of this Prospectus, as amended or supplemented
from time to time, and any other documents (or parts of documents) that
constitute part of this Prospectus under Section 10(a) of the Securities Act
will also be provided without charge to each such person, upon request.
Requests should be directed to Bergen Brunswig Corporation, 4000 Metropolitan
Drive, Orange, California 92668-3510, Attn: Milan A. Sawdei, Secretary;
telephone number: (714) 385-4255.
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<PAGE>
THE COMPANY
Bergen Brunswig Corporation (the "Company"), through its subsidiaries, is a
diversified drug and health care product distribution organization and, as such,
is the nation's largest supplier of pharmaceuticals to hospitals and managed
care facilities, one of the nation's largest suppliers of pharmaceuticals and
health care products to chain and independent pharmacies, and a supplier of
medical and surgical products to hospitals, clinics and alternate site health
care facilities.
The Company is incorporated in New Jersey and maintains its principal
executive offices at 4000 Metropolitan Drive, Orange, California 92668-3510;
telephone (714) 385-4000.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Offered Securities
for general corporate purposes, which may include, without limitation, the
repayment of indebtedness of the Company or of any of its subsidiaries,
acquisitions, capital expenditures and working capital needs. Pending such
application, the net proceeds may be temporarily invested in short term
securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratio of earnings
to fixed charges for the periods indicated. The Company has not had any shares
of preferred stock outstanding during such periods. Accordingly, the Company's
ratios of earnings to fixed charges and earnings to combined fixed charges and
preferred dividends were identical for each of the periods presented.
<TABLE>
<CAPTION>
Year Ended
Three Months Ended ------------------------------------------
December 31, September 30, August 31,
------------------ --------------- -------------------------
1995 1994 1995 1994(1) 1993 1992(2) 1991
---- ---- ----- -------- ------- --------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings to fixed charges 3.7x 3.6x 3.8x 4.2x 2.5x 5.1x 5.5x
________
<FN>
(1) On October 1, 1993, the Company changed its fiscal year-end from August 31
to September 30. For the month ended September 30, 1993, the Company's
consolidated ratio of earnings to fixed charges was 2.2x.
(2) All historical financial information regarding the Company set forth in this
Prospectus or incorporated herein by reference has been restated to
eliminate the results of operations of Commtron Corporation ("Commtron"),
formerly an 81% owned subsidiary of the Company. The Company sold its
interest in Commtron to an unaffiliated third party in June 1992. The
ratios set forth in the table do not give effect to any acquisitions made
after December 31, 1995.
</TABLE>
For purposes of calculating the ratio of earnings to fixed charges,
"earnings" consist of income from continuing operations before income taxes plus
fixed charges. "Fixed charges" consist of interest expense, amortization of
debt issuance costs and the portion of rentals for real and personal properties
deemed to be representative of the interest factor.
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<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior securities of the Company
("Senior Debt Securities") or subordinated securities of the Company
("Subordinated Debt Securities"). The Senior Debt Securities (other than the
LYONs(TM)*, as hereinafter defined) will be issued under a senior indenture,
dated as of March 1, 1996 (the "Senior Indenture"), between the Company and
Chemical Trust Company of California, as trustee (in such capacity, the "Senior
Trustee"). The Subordinated Debt Securities (other than the LYONs) will be
issued under a subordinated indenture, dated as of March 1, 1996 (the
"Subordinated Indenture"), between the Company and Chemical Trust Company of
California, as trustee (in such capacity, the "Subordinated Trustee"). The
Company may offer Liquid Yield Option(TM)* Notes ("LYONs"), which may be either
Senior Debt Securities or Subordinated Debt Securities. LYONs will not be
issued under the Senior Indenture or the Subordinated Indenture, but rather will
be issued under a separate indenture (the "LYONs Indenture") to be entered into
when and if LYONS are issued pursuant to this Prospectus. The Senior Indenture,
the Subordinated Indenture and the LYONs Indenture are collectively referred to
herein as the "Indentures".
A copy of each of the Indentures is filed as an exhibit to the Registration
Statement. Certain provisions of the Indentures are referred to and summarized
below. The summaries do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions of the
applicable Indenture. Section references under "Description of Debt Securities"
are references to the following: the first reference is to both the Senior
Indenture and the Subordinated Indenture; and, if there is a second reference,
such reference is to the LYONs Indenture. Section references under "Senior Debt
Securities" and "Subordinated Debt Securities" below are references to the
Senior Indenture and the Subordinated Indenture, respectively. Capitalized
terms used herein have the meanings ascribed to such terms in the applicable
Indenture, unless otherwise defined herein.
General
The aggregate principal amount of Debt Securities which can be issued under
the Senior Indenture and the Subordinated Indenture is unlimited (Section 3.01).
The Debt Securities to which this Prospectus relates will be issued from time to
time in such amounts as will result in aggregate proceeds, taking into account
all such issuances, of up to $400,000,000. The Debt Securities may be issued in
one or more series with the same or various maturities and may be sold at par,
at an original issue discount or at a premium. Debt Securities sold at an
original issue discount may bear no interest or may bear interest at a rate
which is below market rates. The Debt Securities will be unsecured obligations
of the Company issued in fully registered form without coupons, in bearer form
with coupons or in both such forms. The Senior Debt Securities will rank as to
priority of payment with all other outstanding unsubordinated and unsecured
indebtedness of the Company, while the indebtedness represented by the
Subordinated Debt Securities will be subordinated as described under
"Subordinated Debt Securities".
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[FN]
* TM - Trademark of Merrill Lynch & Co., Inc.
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<PAGE>
Reference is made to the relevant Prospectus Supplement for the following
terms to the extent that they are applicable to any particular series of Debt
Securities: (a) the designation and denomination of, and any limit upon the
aggregate principal amount of, such Debt Securities; (b) whether such Debt
Securities are Senior Debt Securities or Subordinated Debt Securities; (c) the
percentage of their principal amount at which such Debt Securities will be
issued and, in the case of Debt Securities issued with original issue discount,
the principal amount thereof payable upon acceleration of the maturity thereof;
(d) the date or dates on which such Debt Securities will mature or the manner in
which such dates are determined; (e) the rate or rates (which may be fixed or
floating) per annum at which such Debt Securities will bear interest, if any, or
the method of determining the same and the date or dates from which such
interest, if any, will accrue; (f) the dates on which such interest, if any,
will be payable, the dates on which payment of such interest, if any, will
commence and the record dates for any such interest payment dates; (g) whether
any additional amounts will be payable to holders of such Debt Securities; (h)
the terms of any redemption provisions at the option of the Company or any
repayment provisions at the option of the holder or upon the occurrence of a
specified event; (i) any sinking fund or analogous provisions; (j) whether such
Debt Securities will be convertible into or exchangeable for other securities of
the Company and, if so, the terms of any such conversion or exchange and the
terms of such other securities; (k) whether such Debt Securities are to be
registered securities, bearer securities or both, are to be issuable with or
without coupons, the terms upon which bearer securities may be exchanged for
registered securities and, in the case of bearer securities, the date as of
which such bearer securities shall be dated (if not the date of original
issuance of the first security of like tenor and term); (l) whether such Debt
Securities are to be offered in the form of a global security and, if so, the
identity of the depositary and global exchange agent, whether such global form
is temporary or permanent, the circumstances under which any temporary global
Debt Security will be exchanged for definitive global Debt Securities and any
applicable exchange date; (m) material federal income tax consequences; (n) the
currency or currencies and currency unit or units of denomination; (o) the
currency or currencies and currency unit or units of payment of principal of
(and premium, if any, on), and interest, if any, on, such Debt Securities if
other than dollars and the time and manner of determining any exchange rate
between the currency or currencies of denomination and that or those in which
payment is to be made; (p) any index, currency exchange rate, commodity or
derivative instrument price, or other publicly available data used to determine
the amount of payments of principal of (and premium, if any, on), and interest,
if any, on, such Debt Securities; (q) the person to whom any interest on any
such registered Debt Security shall be payable, if other than the person in
whose name such registered security (or one or more predecessor securities) is
registered at the close of business on a regular record date, and the manner in
which, or person to whom, any interest on any bearer security will be payable,
if other than upon presentation and surrender of the coupons appertaining
thereto as they mature; (r) any deletions from, modifications of or additions
to, the Events of Default (in each case as compared with the relevant Indenture
as originally executed and delivered) with respect to such Debt Securities; (s)
the material covenants of the Company, if any; (t) the applicability of the
defeasance provisions of the Indentures; (u) the place or places where the
principal of, and any premium and interest on, such Debt Securities are payable;
(v) the identity of the Security Registrar and Paying Agent for such Debt
Securities; and (w) any other terms of such Debt Securities. Additional
provisions of an Indenture, such as reset and extension provisions, may be made
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<PAGE>
applicable to the Offered Securities, as described in the applicable Prospectus
Supplement. For purposes of this Prospectus, any reference to the payment of
principal of (or premium, if any, on), or interest, if any, on, any Debt
Securities will be deemed to include mention of the payment of any additional
amounts required by the terms of such Debt Securities.
The Debt Securities are obligations exclusively of the Company, which is a
holding company. Its principal assets are its direct or indirect ownership of
the capital stock of its subsidiaries, including Bergen Brunswig Drug Company,
cash, marketable securities and real estate. Because the operations of the
Company are currently conducted through subsidiaries, the cash flow and the
consequent ability to service debt of the Company, including the Debt
Securities, are substantially dependent upon the earnings of its subsidiaries
and the distribution of those earnings to the Company or upon loans or other
payments of funds by those subsidiaries to the Company. The subsidiaries are
separate and distinct legal entities and, except to the extent, if any,
described in a Prospectus Supplement pertaining to particular Offered
Securities, will have no obligation, contingent or otherwise, to pay any amounts
due pursuant to the Debt Securities or to make any funds available therefor,
whether by dividends, loans or other payments. In addition, the payment of
dividends and the making of loans and advances to the Company by its
subsidiaries may be subject to statutory or contractual restrictions, may be
contingent upon the earnings of those subsidiaries and are subject to various
business considerations.
The Debt Securities will be effectively subordinated to all indebtedness and
other liabilities, including trade payables, of the Company's subsidiaries. Any
right of the Company to receive assets of any of its subsidiaries upon their
liquidation or reorganization (and the consequent right of the holders of the
Debt Securities to participate in those assets) will be effectively subordinated
to the claims of that subsidiary's creditors (including trade creditors), except
to the extent that the Company is itself recognized as a nonsubordinated
creditor of such subsidiary, in which case the claims of the Company would still
be subordinate to any security interests in the assets of such subsidiary and
any indebtedness of such subsidiary senior to that held by the Company.
The Indentures do not contain any covenants or other provisions designed to
afford holders of Debt Securities protection in the event of a highly leveraged
or similar transaction involving the Company or any of its subsidiaries.
Reference is made to the Prospectus Supplement relating to the Debt Securities
offered thereby for information with respect to any deletions from,
modifications of, or additions to, the Events of Default or covenants that may
be included in the terms of such series of Debt Securities, including any
addition of a covenant or other provision providing such protection.
Conversion Rights
Certain Debt Securities may be convertible into other securities of the
Company (the "Convertible Debt Securities"). The holders of such Convertible
Debt Securities of a specified series may be entitled (subject to prior
redemption, repayment or repurchase, if applicable), if so provided in the
instruments creating or evidencing such Debt Securities and described in the
applicable Prospectus Supplement, to convert any Convertible Debt Securities of
such series (in denominations set forth in the instruments creating or
evidencing such Debt Securities and described in the applicable Prospectus
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<PAGE>
Supplement) into another series of Debt Securities, Debt Securities Warrants,
Preferred Stock, Preferred Stock Warrants, Depositary Shares, Depositary Shares
Warrants, Class A Common Stock or Class A Common Stock Warrants, as the case may
be (the foregoing securities into which the Convertible Debt Securities may be
converted are collectively referred to herein as "Conversion Securities"), at
the conversion price set forth in the instruments creating or evidencing such
Debt Securities and described in the applicable Prospectus Supplement, subject
to adjustment as described therein. The relevant conversion provisions for each
series of Convertible Debt Securities will be described in the applicable
Prospectus Supplement.
The Company is not required to issue fractional shares of Preferred Stock,
Depositary Shares or Class A Common Stock upon conversion of Convertible Debt
Securities that are convertible into Preferred Stock, Depositary Shares or Class
A Common Stock, respectively, and, unless otherwise specified in the Prospectus
Supplement, in lieu thereof, will pay a cash adjustment, in the case of
Convertible Debt Securities convertible into: (i) Preferred Stock, based upon
the liquidation preference of such series of Preferred Stock, (ii) Depositary
Shares, based upon the liquidation preference of the series of Preferred Stock
represented by such Depositary Shares and (iii) Class A Common Stock, based upon
the market value of the Class A Common Stock. In the case of Convertible Debt
Securities convertible into securities other than Preferred Stock or Class A
Common Stock, such adjustment will be based on such method as is described in
the applicable Prospectus Supplement.
Except as described below or in the applicable Prospectus Supplement, no
adjustment will be made upon conversion of any Convertible Debt Securities for
interest accrued thereon or for dividends on any Conversion Securities issued.
Convertible Debt Securities surrendered for conversion during the period from
the close of business on any regular record date next preceding any interest
payment date to the opening of business on such interest payment date (except
Convertible Debt Securities called for redemption) must be accompanied by
payment of an amount equal to the interest thereon payable on such interest
payment date. In the case of any Convertible Debt Security which has been
converted after any regular record date but on or before the next interest
payment date (except Convertible Debt Securities called for redemption within
such period), the interest payable on such interest payment date shall be paid,
notwithstanding such conversion, to the holder of such Convertible Debt Security
on such regular record date. Except as described above, no interest on
converted Debt Securities will be payable by the Company on any interest payment
date subsequent to the date of conversion. No other payment or adjustment for
interest or dividends is to be made upon conversion.
If the conversion price for a series of Convertible Debt Securities that are
convertible into Class A Common Stock, Preferred Stock or another security is
subject to adjustment upon the occurrence of certain events, the formulas for
such adjustment will be described in the applicable Prospectus Supplement.
Conversion price adjustments or omissions in making such adjustments may, under
certain circumstances, be deemed to be distributions that could be taxable as
dividends under the Internal Revenue Code.
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Mergers and Sales of Assets by the Company
The Company may not consolidate with or merge into any other person or
convey, transfer or lease all or substantially all of its assets to any other
person, unless, among other things, (i) the resulting, surviving or transferee
person (if other than the Company) is organized and existing under the laws of
the United States, any state thereof or the District of Columbia and such person
expressly assumes all obligations of the Company under the Debt Securities and
the applicable Indentures, and (ii) the Company or such successor person shall
not immediately thereafter be in default under the Indentures (Section
8.01)(Section 5.01). Upon the assumption of the Company's obligations by such a
person in such circumstances, subject to certain exceptions, the Company will be
discharged from all of its obligations under the Debt Securities and the
Indentures (Section 8.02) (Section 5.01).
Amendment and Waiver
Other than amendments not adverse to holders of the Debt Securities,
amendments of the Indentures or the Debt Securities may be made only with the
consent of the holders of a majority in aggregate principal amount of the Debt
Securities of each series affected. Waivers of compliance with any provision of
the Debt Securities or the Indentures with respect to any series of Debt
Securities may be made only with the consent of the holders of a majority in
aggregate principal amount of the Debt Securities of that series. The consent
of all holders of affected Debt Securities will be required to (a) change or, in
the case of the LYONs, extend, the maturity thereof, (b) reduce the principal
amount thereof, (c) reduce the rate of interest thereon or (d) impair the right
to institute suit for the payment of principal thereof or interest thereon
(Section 9.02)(Section 9.02). The holders of a majority in aggregate principal
amount of Debt Securities affected may waive any past default under the
applicable Indenture and its consequences, except a default (1) in the payment
of the principal of, or interest or premium, if any, on, such Debt Securities,
(2) in the case of the Senior Debt Securities and Subordinated Debt Securities,
in the payment of any sinking or purchase fund or analogous obligation on such
Debt Securities or (3) in respect of a provision which cannot be waived or
amended without the consent of all holders of Debt Securities affected thereby
and, additionally with respect to the LYONs, a default under the conversion
provisions of the LYONs Indenture or in the payment of Original Issue Discount,
the Redemption Price or, under certain circumtances, the Purchase Price
(Sections 5.13 and 9.02)(Sections 6.04 and 9.02).
Denominations, Form, Exchange, Registration and Transfer
Debt Securities of a series may be issuable solely as registered securities,
solely as bearer securities or both as registered securities and as bearer
securities. Debt Securities of a series may be issuable in global form. See
"Description of Debt Securities -- Global Securities" below. Unless otherwise
indicated in the applicable Prospectus Supplement, if bearer securities are
offered, such securities (except those in temporary or permanent global form)
will have interest coupons attached.
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Registered securities of any series will be exchangeable for other
registered securities of the same series of authorized denominations and of a
like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both registered securities and bearer
securities, at the option of the holder upon request confirmed in writing,
subject to applicable laws and the terms of the applicable Indenture, bearer
securities (with all unmatured coupons, except as provided below, and any
matured coupons in default) of such series will be exchangeable into registered
securities of the same series of any authorized denominations and of like
aggregate principal amount, tenor and terms. Unless otherwise specified in the
applicable Prospectus Supplement, bearer securities surrendered in exchange for
registered securities of the same series between the close of business on a
regular record date or a special record date and the relevant date for a payment
of interest shall be surrendered without the coupon relating to such date for
payment of interest, and such interest will not be payable in respect of the
registered security issued in exchange for such bearer securities, but will be
payable only to the holder of such coupon when due in accordance with the terms
of the applicable Indenture. Unless otherwise specified in the applicable
Prospectus Supplement, bearer securities will not be issued in exchange for
registered securities. In connection with its original issuance, no bearer
security shall be mailed or otherwise delivered to any location in the United
States and, unless otherwise specified in the applicable Prospectus Supplement,
a bearer security may be delivered in connection with its original issuance only
if the person entitled to receive such bearer security furnishes written
certification in the form required by the applicable Indenture.
Federal tax laws and regulations contain substantial restrictions regarding
the offer, sale, resale and delivery of bearer securities. In the event that
the Company should offer bearer securities pursuant to this Prospectus, such
restrictions will be described in the applicable Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities may be presented for exchange as provided above, and registered
securities may be presented for registration of transfer (duly endorsed or
accompanied by a satisfactory written instrument of transfer), at the office of
the Security Registrar or at the office of any transfer agent designated by the
Company for such purpose with respect to such series of Debt Securities, without
service charge and upon payment of any taxes and other governmental charges
(Section 3.05)(Section 2.06). Unless otherwise indicated in the applicable
Prospectus Supplement, the Company will not be required (i) to issue, register
the transfer of or exchange Debt Securities of any particular series to be
redeemed or exchanged for a period of 15 days preceding the first publication of
the relevant notice of redemption or, if registered securities are outstanding
and there is no publication, the mailing of the relevant notice of redemption or
exchange, (ii) to register the transfer of or exchange any registered security
so selected for redemption in whole or in part, except the unredeemed portion of
any registered security being redeemed or exchanged in part, or (iii) to
exchange any bearer security so selected for redemption except that such a
bearer security may be exchanged for a registered security of that series of
like tenor and terms, provided that such registered security shall be
simultaneously surrendered for redemption. (Section 3.05)(Section 2.06).
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Global Securities
The Debt Securities may be issued in whole or in part in the form of one or
more global securities (each, a "Global Security") and deposited with a
depositary (the "Depositary"), or a nominee thereof, identified in the
applicable Prospectus Supplement. 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 applicable Prospectus
Supplement. The Company currently expects that the following provisions will
apply to depositary arrangements.
Debt Securities issued as Global Securities may be issued in whole or in
part in the form of one or more registered Global Securities registered in the
name of the Depositary or a nominee thereof (each, a "Registered Global
Security"). So long as the Depositary, or its nominee, is the registered owner
of a Registered Global Security, the Depositary or its nominee, as the case may
be, will be considered the sole owner or holder of the Debt Securities
represented by such Registered Global Security for all purposes under the
applicable Indenture. Unless otherwise specified in the applicable Prospectus
Supplement and except as otherwise provided in the applicable Indenture, owners
of beneficial interests in the Debt Securities represented by such Registered
Global Security will not (a) be entitled to have such Debt Securities registered
in their names, (b) receive or be entitled to receive physical delivery of
certificates representing such Debt Securities in definitive form, (c) be
considered to be the owners or holders thereof under such Indenture or (d) have
any rights under such Indenture with respect to such Registered Global Security.
Accordingly, each person owning a beneficial interest in such Registered Global
Security must rely on the procedures of the Depositary and, if such person is
not a participant (as defined below) in such Depositary, on the procedures of
the participant through which such person owns its interest, to exercise any
rights of a holder under such Indenture. The Depositary may grant proxies and
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a holder
is entitled to give or take under an Indenture. Under existing industry
practices, if the Company requests any action of holders or any owner of a
beneficial interest in such Registered Global Security desires to give any
notice or take any action a holder is entitled to give or take under an
Indenture, the Depositary for such Registered Global Security would authorize
the participants holding the relevant beneficial interests to give such notice
or take such action, and such participants would authorize beneficial owners
owning through such participants to give such notice or to take such action or
would otherwise act upon the instructions of beneficial owners owning through
them.
Upon the issuance of any Registered Global Security, and the deposit of such
Registered Global Security with or on behalf of the Depositary for such
Registered Global Security, the Depositary will credit, on its book-entry
registration and transfer system, the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the accounts of
institutions ("participants") that have accounts with the Depositary or its
nominee and who hold interests in such Debt Securities. The accounts to be
credited will be designated by the underwriters, dealers or agents engaging in
the distribution of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Registered Global Security will be limited to
participants or persons that may hold interests through participants. Ownership
of beneficial interests by participants in such Registered Global Security will
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be shown on, and the transfer of such beneficial interests will be effected only
through, records maintained by the Depositary for such Registered Global
Security or by its nominee. Ownership of beneficial interests in such
Registered Global Security by persons that hold through participants will be
shown on, and the transfer of such beneficial interests within such participants
will be effected only through, records maintained by such participants. The
laws of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The foregoing
limitations and such laws may impair the ability of such purchasers to own,
transfer or pledge beneficial interests in such Registered Global Securities.
Unless otherwise specified in the applicable Prospectus Supplement, payments
with respect to principal of (premium, if any, on), and interest, if any, on,
Debt Securities represented by a Registered Global Security registered in the
name of a Depositary or its nominee will be made to such Depositary or its
nominee, as the case may be, as the registered owner of such Registered Global
Security. The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal of (premium, if any, on), or interest on, such Registered Global
Security, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Registered Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Registered Global Security held through such
participants will be governed by standing instructions and customary practices,
and will be the responsibility of such participants. None of the Company, any
Trustee or any agent of the Company or such Trustee shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Registered
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Unless otherwise specified in the applicable Prospectus Supplement, if the
Depositary for any series of Debt Securities represented by a Registered Global
Security is at any time unwilling or unable to continue as Depositary or ceases
to be a clearing agency registered under the Exchange Act, and a successor
Depositary registered as a clearing agency under the Exchange Act is not
appointed by the Company within 90 days, the Company will issue such Debt
Securities in definitive certificated form in exchange for such Registered
Global Security.
The Debt Securities of a series may also be issued in whole or in part in
the form of one or more bearer Global Securities (a "Bearer Global Security")
that will be deposited with a Depositary, or a nominee thereof, identified in
the applicable Prospectus Supplement. Any such Bearer Global Securities may be
issued in temporary or permanent form. The specific terms and procedures,
including the specific terms of the depositary arrangement, with respect to any
portion of a series of Debt Securities to be represented by one or more Bearer
Global Securities will be described in the applicable Prospectus Supplement.
Unless and until it is exchanged in whole or in part for individual
certificates evidencing the Debt Securities represented thereby, a Global
Security may not be transferred except as a whole by the Depositary for such
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Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any nominee to a successor depositary or any nominee of such
successor. The Company, in its sole discretion, may at any time determine that
Debt Securities shall no longer be represented by such Global Security and such
Global Security shall thereupon be exchanged for securities in definitive
certificated form pursuant to the applicable Indenture.
Defeasance
The Senior Indenture and the Subordinated Indenture provide that the
Company, at its option, (a) will be discharged from all obligations in respect
of the Debt Securities of a series (except for certain obligations to register
the transfer or exchange of such Debt Securities, replace stolen, lost or
destroyed Debt Securities, maintain paying agencies and hold moneys for payment
in trust), or (b) need not comply with certain covenants of the Senior and the
Subordinated Indenture, in each case if the Company irrevocably deposits in
trust with the Trustee money or obligations of or guaranteed by the United
States of America which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount
sufficient to pay all of the principal of (including any mandatory redemption
payments), any premium and interest on, and repurchase obligations, if any, with
respect to, the Debt Securities of such series on the dates such payments are
due in accordance with the terms of such Debt Securities. To exercise either
such option, the Company is required to deliver to the Trustee an opinion of
independent tax counsel (which may be counsel to the Company) to the effect that
the deposit and related defeasance would not cause the holders of the Debt
Securities of such series to recognize income, gain or loss for Federal income
tax purposes. To exercise the option described in clause (a) above, such
opinion must be based either on a ruling of the Internal Revenue Service or a
change in the applicable Federal income tax law(Article Fifteen).
Information Concerning the Trustee
Chemical Trust Company of California, the Trustee under each of the
Indentures, is also the trustee with respect to $150 million in aggregate
principal amount of the Company's 7 3/8% senior notes due 2003 (the "7 3/8%
Notes"), $100 in aggregate principal amount of the Company's 7 1/4% senior notes
due 2005 (the 7 1/4% Notes" and, collectively with the 7 3/8% Notes, the "Senior
Notes"), and $10.6 million in aggregate principal amount of the Company's 6 7/8%
Exchangeable Subordinated Debentures due 2011 (the "6 7/8% Debentures"), and is
the rights agent under the Company's Shareowner Rights Plan. An affiliate of
the Trustee is the transfer agent, registrar and dividend disbursing agent for
the Company's Class A Common Stock. The Company also maintains banking
relationships in the ordinary course of business with an affiliate of the
Trustee.
The occurrence of a default under either the Indentures or under the
indentures governing the Senior Notes or the 6 7/8% Debentures could create a
conflicting interest for the Trustee under the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990 (the "Trust Indenture Act").
If the default has not been cured or waived within 90 days after the Trustee
acquires a conflicting interest, the Trustee generally will be required by the
Trust Indenture Act to eliminate such conflicting interest or resign as Trustee
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with respect to the affected Debt Securities, the Senior Notes and/or the
6 7/8% Debentures, as the case may be. In the event of the Trustee's
resignation, the Company will promptly appoint a successor trustee with respect
to any affected Debt Securities.
Should the Company determine to appoint a successor trustee for any reason
prior to the issuance of a particular series of Debt Securities, information
regarding such successor trustee will be set forth in the applicable Prospectus
Supplement.
SENIOR DEBT SECURITIES
The Senior Debt Securities will be direct, unsecured obligations of the
Company and will rank as to priority of payment with all outstanding
unsubordinated and unsecured indebtedness of the Company. Following is a
description of certain terms of Senior Debt Securities other than LYONs. If
LYONs are offered by the Company, a description of such LYONs will be set forth
in the applicable Prospectus Supplement.
Certain Covenants
If material covenants are undertaken by the Company with respect to a
particular series of Senior Debt Securities, including LYONs offered as Senior
Debt Securities, such covenants will be described in the applicable Prospectus
Supplement and will be added to the Senior Indenture or LYONs Indenture by means
of an indenture supplement.
Events of Default
Unless otherwise specified in an applicable Prospectus Supplement, Events of
Default with respect to any series of Senior Debt Securities under the Senior
Indenture will include: (a) default in the payment of any principal of, or any
premium on, such series; (b) default in the payment of any installment of
interest on such series and continuance of such default for a period of 30 days;
(c) default with respect to any obligation to make payments to a sinking fund or
analogous obligation when the same becomes due by the terms of such series; (d)
default in the performance of any other covenant in the Senior Indenture with
respect to such series and continuance of such default for a period of 90 days
after receipt by the Company of notice of such default from the Senior Trustee
or receipt by the Company and the Senior Trustee of notice of such default from
the holders of at least 25% in aggregate principal amount of Senior Debt
Securities of such series then outstanding; (e) acceleration or non-payment at
maturity of (i) indebtedness for borrowed money of the Company or any subsidiary
or (ii) any guarantee of payment by the Company or any subsidiary of any
obligation of any Person, in either case in excess of $15,000,000, which
acceleration or non-payment is not cured, waived, rescinded or annulled, or such
indebtedness or guarantee is not discharged, within 15 days after receipt of
comparable written notice; or (f) certain events of bankruptcy, insolvency or
reorganization in respect of the Company (Section 5.01). The Senior Trustee may
withhold notice to the holders of a series of Senior Debt Securities of any
default (except in the payment of principal of, premium, if any, on, or
interest, if any, on, such series of Senior Debt Securities) if it considers
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such withholding to be in the interests of holders of the Senior Debt Securities
(Section 6.02). Events of Default with respect to a particular series of
Senior Debt Securities issued under the Senior Indenture will not necessarily
constitute Events of Default with respect to any other series of Senior Debt
Securities.
On the occurrence of an Event of Default with respect to a series of Senior
Debt Securities, the Senior Trustee or the holders of at least 25% in aggregate
principal amount of the Senior Debt Securities of such series then outstanding
may declare the principal (or in the case of Senior Debt Securities sold at an
original issue discount, the amount specified in the terms thereof) and accrued
interest thereon to be due and payable immediately (Section 5.02).
Within 120 days after the end of each fiscal year, an officer of the Company
must inform the Senior Trustee whether such officer knows of any default and
must describe any such default and the status thereof (Section 10.06). Subject
to provisions relating to its duties in case of default, the Senior Trustee is
under no obligation to exercise any of its rights or powers under the Senior
Indenture at the direction of any holders of Senior Debt Securities unless the
Senior Trustee shall have received a satisfactory indemnity (Section 6.03).
SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will be direct, unsecured obligations of
the Company and will be subordinated in right of payment, as set forth in the
Subordinated Indenture, to the prior payment in full of all existing and future
Senior Indebtedness (Section 16.01) or of such Senior Indebtedness as may be
specified in an indenture supplement relating to a particular series of
Subordinated Debt Securities. Following is a description of certain terms of
Subordinated Debt Securities other than LYONs. If LYONs are offered by the
Company, a description of such LYONs will be set forth in the applicable
Prospectus Supplement.
"Senior Indebtedness" means the principal of and any premium and interest on
(a) all indebtedness of, or guaranteed by, the Company (other than (i) the
Subordinated Debt Securities, (ii) securities issued pursuant to the Company's
Subordinated Indenture dated as of December 1, 1992 and (iii) the 6 7/8%
Debentures (collectively, the "Pari Passu Debt")), whether outstanding on the
date of the Subordinated Indenture or thereafter created, incurred or assumed,
that is (A) for money borrowed or (B) evidenced by a note or similar instrument
given in connection with the acquisition of any businesses, properties or assets
of any kind, except in the ordinary course of business, (b) all obligations of
the Company as lessee under capitalized leases or leases of property made as
part of any sale and leaseback transaction, and (c) all amendments, renewals,
extensions, modifications and refundings of any such indebtedness or
obligations, unless in any of the foregoing cases in the instrument creating or
evidencing any such indebtedness or obligation or pursuant to which the same is
outstanding it is provided that such indebtedness or obligation is not superior
in right of payment to the Subordinated Debt Securities or to any Pari Passu
Debt (Section 1.01).
By reason of such subordination, in the event of dissolution, insolvency,
bankruptcy or other similar proceedings, upon any distribution of assets, (i)
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the holders of all Senior Indebtedness shall first be entitled to receive
payment in full of all amounts due or to become due thereon, or to require that
payment of all such amounts shall have been provided for, before the holders of
Subordinated Debt Securities shall be entitled to receive any payment or
distribution with respect to such Subordinated Debt Securities, (ii) the holders
of Subordinated Debt Securities will be required to pay over their share of such
distribution in respect of the Subordinated Debt Securities to the holders of
Senior Indebtedness until such Senior Indebtedness is paid in full and (iii)
creditors of the Company who are not holders of Senior Indebtedness may recover
less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than holders of Subordinated Debt Securities (Section 16.02).
As of December 31, 1995, outstanding Senior Indebtedness amounted to
approximately $467.4 million, consisting of (i) $357.1 million aggregate
indebtedness attributable to the Senior Notes and a series of senior notes in
the aggregate principal amount of $100,000,000 which matured on January 15, 1996
and (ii) $110.3 million of indebtedness of a subsidiary guaranteed by the
Company. At that date, the Company had available to it an additional $239.7
million which could be borrowed by such subsidiary under an existing revolving
line of credit and which, once borrowed, would be supported by the Company's
guarantee. The Company's subsidiaries have sold receivables, with recourse, to
financial institutions. The Company is contingently liable as guarantor with
respect to such receivables. In the event that such receivables financing
arrangements are deemed to constitute lending arrangements, the Company's
contingent obligations with respect to such receivables would constitute Senior
Indebtedness. As of December 31, 1995, approximately $21.3 million of
receivables were subject to such financing. The Subordinated Debt Securities
will rank pari passu with outstanding subordinated debt of the Company, which,
at December 31, 1995, aggregated approximately $10.9 million. The Subordinated
Debt Securities, as well as the Senior Debt Securities, will be effectively
subordinated to all liabilities, including trade payables, of the Company's
subsidiaries. See "Description of Debt Securities - General". There are no
restrictions in the Subordinated Indenture on the creation of additional
indebtedness, including Senior Indebtedness.
Certain Covenants
If material covenants are undertaken by the Company with respect to a
particular series of Subordinated Debt Securities, including LYONs offered as
Subordinated Debt Securities, such covenants will be described in the applicable
Prospectus Supplement and will be added to the Subordinated Indenture or LYONs
Identure by means of an indenture supplement.
Events of Default
Unless otherwise specified in an applicable Prospectus Supplement, Events of
Default with respect to any series of Subordinated Debt Securities under the
Subordinated Indenture will include: (a) default in the payment of any
principal of, or any premium on, such series; (b) default in the payment of any
installment of interest on such series and continuance of such default for a
period of 30 days; (c) default with respect to any obligation to make payments
to a sinking fund or analogous obligation when the same becomes due by the terms
of such series; (d) default in the performance of any other covenant in the
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Subordinated Indenture with respect to such series and continuance of such
default for a period of 90 days after receipt by the Company of notice of such
default from the Subordinated Trustee or receipt by the Company and the
Subordinated Trustee of notice of such default from the holders of at least 25%
in aggregate principal amount of Subordinated Debt Securities of such series
then outstanding; (e) an Event of Default with respect to an outstanding series
of Senior Debt Securities resulting from (i) default in the performance of
certain covenants in the Senior Indenture or (ii) acceleration or non-payment at
maturity of certain indebtedness of the Company or its subsidiaries or of
certain guarantees of payment by the Company or its subsidiaries, as described
herein under "Senior Debt Securities -- Events of Default"; or (f) certain
events of bankruptcy, insolvency or reorganization in respect of the Company
(Section 5.01). The Subordinated Trustee may withhold notice to the holders of
a series of Subordinated Debt Securities of any default (except in the payment
of principal of, premium, if any, on, or interest, if any, on, such series of
Subordinated Debt Securities) if it considers such withholding to be in the
interest of holders of the Subordinated Debt Securities (Section 6.02). Events
of Default with respect to a particular series of Subordinated Debt Securities
issued under the Subordinated Indenture will not necessarily constitute Events
of Default with respect to any other series of Subordinated Debt Securities.
On the occurrence of an Event of Default with respect to a series of
Subordinated Debt Securities, the Subordinated Trustee or the holders of at
least 25% in aggregate principal amount of Subordinated Debt Securities of such
series then outstanding may declare the principal (or in the case of
Subordinated Debt Securities sold at an original issue discount, the amount
specified in the terms thereof) and accrued interest thereon to be due and
payable immediately (Section 5.02).
Within 120 days after the end of each fiscal year, an officer of the Company
must inform the Subordinated Trustee whether such officer knows of any default,
describing any such default and the status thereof (Section 10.06). Subject to
provisions relating to its duties in case of default, the Subordinated Trustee
is under no obligation to exercise any of its rights or powers under the
Subordinated Indenture at the direction of any holders of Subordinated Debt
Securities unless the Subordinated Trustee shall have received a satisfactory
indemnity (Section 6.03).
DESCRIPTION OF CLASS A COMMON STOCK
The following description of the Class A Common Stock sets forth certain
general terms and provisions of the Class A Common Stock to which any Prospectus
Supplement may relate, including a Prospectus Supplement providing that Class A
Common Stock will be issuable by the Company upon conversion of Debt Securities
or Preferred Stock. The statements below describing the Class A Common Stock
are in general terms and are in all respects subject to and qualified in their
entirety by reference to the applicable provisions of the Company's Certificate
of Incorporation and By-Laws.
The Company has the authority to issue 103,000,000 shares of capital stock,
of which 100,000,000 are Class A Common Stock, par value $1.50 per share, and
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3,000,000 are Preferred Stock, no par value. At December 31, 1995, the Company
had outstanding 39,866,582 shares of Class A Common Stock and had no outstanding
shares of Preferred Stock.
Holders of Class A Common Stock are entitled to receive, equally and
ratably, such dividends as are declared by the Board of Directors, subject to
the preference of any outstanding Preferred Stock, and are entitled to cast one
vote per share on all matters voted upon by stockholders. There is no
cumulative voting for the election of directors and the Class A Common Stock
does not have any pre-emptive rights. Upon liquidation of the Company, holders
of Class A Common Stock are entitled to share equally and ratably in any assets
available for distribution to them, after payment or provision for liabilities
and amounts owing with respect to any outstanding Preferred Stock. Payment and
declaration of dividends on the Class A Common Stock will be subject to
restrictions if the Company fails to pay dividends on any series of Preferred
Stock ranking prior to the Class A Common Stock as to the payment of dividends.
See "Description of Preferred Stock."
The registrar, transfer agent and dividend disbursing agent for the Class A
Common Stock is Chemical Mellon Shareholder Services LLC.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities,
Preferred Stock, Depositary Shares or Class A Common Stock. Warrants may be
issued independently or together with any securities offered by any Prospectus
Supplement and may be attached to or separate from such securities. Each series
of Warrants will be issued under a separate warrant agreement (each, a "Warrant
Agreement") to be entered into between the Company and a warrant agent ("Warrant
Agent"), all as set forth in the Prospectus Supplement relating to the
particular issue of Warrants. The Warrant Agent will act solely as an agent of
the Company in connection with the Warrants of such series and will not assume
any obligation or relationship of agency or trust for or with any holders or
beneficial owners of Warrants.
The following summaries of certain provisions of the forms of Warrant
Agreements and Warrant certificates do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the Warrant Agreements and the Warrant certificates, as well as by
reference to any applicable Prospectus Supplement.
General
If Debt Securities Warrants are offered, the applicable Prospectus
Supplement will describe the terms of such Warrants, the Warrant Agreement
relating to such Warrants and the certificates representing such Warrants,
including, where applicable, the following: (i) the title, offering price and
aggregate number of such Debt Securities Warrants; (ii) the title, rank,
aggregate principal amount, denominations and terms of the Debt Securities
purchasable upon exercise of such Debt Securities Warrants and the procedures
and conditions relating to the exercise of such Debt Securities Warrants; (iii)
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the designation and terms of any related series of securities with which such
Debt Securities Warrants are being offered and the number of such Debt
Securities Warrants being offered with each such security; (iv) the date, if
any, on and after which such Debt Securities Warrants and the related series of
securities will be transferable separately; (v) the principal amount of the
series of Debt Securities purchasable upon exercise of each such Debt Securities
Warrant, the price, or the manner of determining the price, at which such
principal amount of Debt Securities of such series may be purchased upon such
exercise and whether such Debt Securities may be purchased for consideration
other than cash; (vi) the time or times, or period or periods, in which such
Debt Securities Warrants may be exercised and the date (the "Expiration Date")
on which such exercise right shall expire; (vii) whether the Warrant
certificates will be issued in registered or bearer form and information
regarding any transfer, registration and book-entry procedures; (viii) any
anti-dilution provisions applicable to such Debt Securities Warrants; (ix)
material United States federal income tax consequences; (x) the terms of any
right of the Company to redeem or accelerate the exercisability of such Debt
Securities Warrants; and (xi) any other terms of such Debt Securities Warrants.
In the case of Warrants for the purchase of Preferred Stock, Depositary
Shares or Class A Common Stock, the applicable Prospectus Supplement will
describe the terms of such Warrants, the Warrant Agreement relating to such
Warrants and the certificates representing such Warrants, including, where
applicable, the following: (i) the title, offering price and aggregate number of
such Warrants; (ii) in the case of Preferred Stock Warrants, the designation and
terms of the series of Preferred Stock purchasable upon exercise of such
Preferred Stock Warrants and whether such series of Preferred Stock is
convertible or exchangeable into or for other securities of the Company; (iii)
in the case of Depositary Shares Warrants, the fraction of a share of Preferred
Stock represented by each Depositary Share purchasable upon exercise of such
Depositary Shares Warrants, the designation and terms of the series of Preferred
Stock represented by such Depositary Shares and whether such Depositary Shares
are convertible or exchangeable into or for other securities of the Company;
(iv) the aggregate number of shares of such series of Preferred Stock,
Depositary Shares or Class A Common Stock purchasable on exercise of each such
Warrant and the price, or manner of determining the price, at which such number
of shares may be purchased; (v) the designation and terms of any related series
of securities with which such Warrants are being offered and the number of such
Warrants being offered with each such security; (vi) the date, if any, on and
after which such Warrants and the related series of securities will be
transferable separately; (vii) any minimum number of Warrants exercisable at one
time; (viii) the time or times, or period or periods, in which such Warrants
shall be exercisable and the Expiration Date; (ix) the terms of any right of the
Company to redeem or accelerate the exercisability of such Warrants; (x) whether
the Warrant certificates will be issued in registered or bearer form and
information regarding any transfer, registration and book-entry procedures; (xi)
any anti-dilution provisions applicable to such Warrants; (xii) material United
States federal income tax consequences; and (xiii) any other terms of such
Warrants.
Warrants may be exchanged for new Warrants of different denominations, may
(if in registered form) be presented for registration of transfer and may be
exercised at the corporate trust office of the Warrant Agent or any other office
indicated in the applicable Prospectus Supplement. No service charge will be
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made for any permitted transfer or exchange of Warrant certificates, but the
Company may require payment of any tax or other governmental charge payable in
connection therewith. Prior to the exercise of any Warrant to purchase Debt
Securities, holders of such Warrants will not have any of the rights of holders
of the Debt Securities purchasable upon such exercise, including the right to
receive payments of principal of (or premium, if any, on) or interest, if any,
on the Debt Securities purchasable upon such exercise or to enforce any
covenants in the applicable Indenture. Prior to the exercise of any Warrants to
purchase Preferred Stock, Depositary Shares or Class A Common Stock, holders of
such Warrants will not have any rights of holders of the Preferred Stock,
Depositary Shares or Class A Common Stock purchasable upon such exercise,
including the right to receive payments of dividends, if any, on the Preferred
Stock, Depositary Shares or Class A Common Stock purchasable upon such exercise
or to exercise any applicable right to vote.
Exercise of Warrants
Each Warrant will entitle the holder thereof to purchase such principal
amount of Debt Securities or number of shares of Preferred Stock, Depositary
Shares or Class A Common Stock, as the case may be, at such exercise price as
shall in each case be set forth, or calculable in the manner provided, in the
offered Warrants and described in the Prospectus Supplement relating thereto.
After the close of business on the Expiration Date (or such later date to which
such Expiration Date may be extended by the Company), unexercised Warrants will
become void.
Warrants may be exercised by delivering payment to the Warrant Agent as
provided in the applicable Prospectus Supplement of the amount required to
purchase the underlying Debt Securities, Preferred Stock, Depositary Shares or
Class A Common Stock, as the case may be, purchasable upon such exercise
together with certain information set forth on the reverse side of the Warrant.
Warrants will be deemed to have been exercised upon receipt of payment of the
exercise price, subject to the receipt, within five business days, of the
Warrant certificate evidencing such Warrants. Upon receipt of such payment and
such Warrant certificate properly completed and duly executed at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable Prospectus Supplement, the Company will, as soon as practicable,
issue and deliver the Debt Securities, Preferred Stock, Depositary Shares or
Class A Common Stock, as the case may be, purchasable upon such exercise. If
fewer than all of the Warrants represented by such Warrant certificate are
exercised, a new Warrant certificate will be issued for the remaining amount of
Warrants. The holder of a Warrant will be required to pay any tax or other
governmental charge that may be imposed in connection with any transfer involved
in the issuance of underlying Debt Securities, Preferred Stock, Depositary
Shares or Class A Common Stock purchased upon such exercise.
Modifications
The Warrant Agreements and the terms of the Warrants may be modified or
amended by the Company and the Warrant Agent, without the consent of any holder,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained therein, or in
any other manner that the Company deems necessary or desirable and that will not
materially adversely affect the interests of the holders of the Warrants.
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The Company and the Warrant Agent may also modify or amend the Warrant
Agreement and the terms of the Warrants with the consent of the holders of not
less than a majority in number of the then outstanding unexercised Warrants
affected thereby; provided that no such modification or amendment that
accelerates the Expiration Date, increases the exercise price, reduces the
number of outstanding Warrants the consent of the holders of which is required
for any such modification or amendment, or otherwise materially adversely
affects the rights of the holders of the Warrants, may be made without the
consent of each holder affected thereby.
Warrant Adjustments
The terms and conditions on which the exercise price of and/or the number of
shares of Preferred Stock, Depositary Shares or Class A Common Stock covered by
a Warrant are subject to adjustment will be set forth in the Warrant certificate
and the applicable Prospectus Supplement. Such terms will include provisions
for adjusting the exercise price and/or the number of shares of Preferred Stock,
Depositary Shares or Class A Common Stock covered by such Warrant; the events
requiring such adjustment; the events upon which the Company may, in lieu of
making such adjustment, make proper provisions so that the holder of such
Warrant, upon exercise thereof, would be treated as if such holder had exercised
such Warrant prior to the occurrence of such events; and provisions affecting
exercise in the event of certain events affecting the Preferred Stock,
Depositary Shares or Class A Common Stock.
DESCRIPTION OF PREFERRED STOCK
The Company is authorized to issue 3,000,000 shares of Preferred Stock, no
par value, none of which were outstanding at December 31, 1995. Under the
Company's Certificate of Incorporation, the Board of Directors may from time to
time establish and issue one or more series of Preferred Stock and fix the
designations, powers, preferences and rights of the shares of such series and
the qualifications, limitations or restrictions thereon, including, but not
limited to, the fixing of the dividend rights, dividend rate or rates,
conversion and exchange rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, and the
liquidation preferences, in each case, of any wholly unissued series of shares
of Preferred Stock. Any such series may rank junior to, on a parity with or
(subject to voting rights) senior to any other such series with respect to
dividends, distributions and liquidation, and any such series may have greater
or lesser voting rights than any other such series.
Because the Company is a holding company, its rights, the rights of its
creditors and of its shareowners, including the owners of the shares of the
Preferred Stock, to participate in any distribution of the assets of any
subsidiary upon the latter's liquidation or recapitalization will be subject to
the prior claims of the subsidiary's creditors, except to the extent that the
Company may itself be a creditor with recognized claims against the subsidiary.
The principal sources of the Company's revenues are derived from its operating
subsidiaries. The subsidiaries are separate and distinct legal entities and,
except to the extent, if any, described in a Prospectus Supplement pertaining to
particular Offered Securities, will have no obligation, contingent or otherwise,
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to pay any amounts or to make any funds available to the Company, whether by
dividends, loans or other payments. In addition, the payment of dividends and
certain loans and advances to the Company by such subsidiaries may be subject to
certain statutory or contractual restrictions, are contingent upon the earnings
of such subsidiaries and are subject to various business considerations.
The following description of the Preferred Stock sets forth certain terms
and provisions of the Preferred Stock to which any Prospectus Supplement may
relate. The statements below describing the Preferred Stock are in general
terms and are in all respects subject to and qualified in their entirety by
reference to the applicable provisions of the Company's Certificate of
Incorporation (including the applicable Certificate of Amendment describing a
particular series) and By-Laws.
Dividends
Holders of shares of the Preferred Stock of each series shall be entitled to
receive, when, as and if declared by the Board of Directors of the Company, out
of assets of the Company legally available for payment, cash dividends at such
rates and on such dates as will be set forth in the applicable Prospectus
Supplement. Each such dividend shall be payable to holders of record as they
appear on the stock books of the Company on such record dates as shall be fixed
by the Board of Directors of the Company.
Dividends on any series of the Preferred Stock may be cumulative or
non-cumulative, as provided in the Certificate of Amendment relating to such
series and described in the applicable Prospectus Supplement. If the Board of
Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of the Preferred Stock for which dividends are
non-cumulative, then the holders of such series of the Preferred Stock will have
no rights to receive a dividend in respect of the dividend period ending on such
dividend payment date, and the Company will have no obligation at any subsequent
time to pay the dividend accrued for such period, whether or not dividends on
such series are declared payable on any future dividend payment date.
If shares of the Preferred Stock of any series are outstanding, no full
dividends shall be declared or paid or set apart for payment on the Preferred
Stock of the Company of any other series ranking, as to dividends, on a parity
with or junior to the Preferred Stock of such series for any period unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such payment
on the Preferred Stock of such series for all dividend periods terminating on or
prior to the date of payment of such full cumulative dividends. When dividends
are not paid in full upon the shares of Preferred Stock of any series and the
shares of any other series of Preferred Stock ranking on a parity as to
dividends with the Preferred Stock of such series, all dividends declared upon
shares of Preferred Stock of such series and any other series of Preferred Stock
ranking on a parity as to dividends shall be declared pro rata so that the
amount of dividends declared per share on the Preferred Stock of such series and
such other series of Preferred Stock shall in all cases bear to each other the
same ratio that accrued cumulative dividends per share on the shares of
Preferred Stock of such series and such other series of Preferred Stock bear to
each other. Unless otherwise provided in an applicable Prospectus Supplement,
holders of shares of Preferred Stock of any series shall not be entitled to any
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dividends, whether payable in cash, property or stock, in excess of full
cumulative dividends, payable as herein provided, on the Preferred Stock of such
series and no interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on the Preferred Stock of such
series which may be in arrears. Except as provided in the second preceding
sentence, unless full cumulative dividends on the Preferred Stock of any series
have been declared and paid or set apart for payment for all past dividend
periods, no dividends (other than in stock ranking junior to the Preferred Stock
of such series as to dividends and upon liquidation) shall be declared or paid
or set aside for payment or other distribution declared or made upon stock of
the Company ranking junior to or on a parity with the Preferred Stock of such
series as to dividends or upon liquidation, nor shall any stock of the Company
ranking junior to or on a parity with the Preferred Stock of such series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Company (except by
conversion into or exchange for stock of the Company ranking junior to the
Preferred Stock of such series as to dividends and upon liquidation).
Unless otherwise indicated in an applicable Prospectus Supplement, all
series of Preferred Stock offered hereby will be senior in right as to dividends
and in liquidation to the Class A Common Stock.
Any dividend payment made on shares of a series of Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to shares of such series which remains payable.
Redemption
The shares of Preferred Stock will be redeemable at the option of the
Company, as a whole or in part, at the times and at the redemption prices set
forth in the Certificate of Amendment relating to such series and described in
the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless full cumulative dividends on all
outstanding shares of any series of Preferred Stock shall have been paid or
contemporaneously are declared and paid for all past dividend periods, no shares
of any series of Preferred Stock shall be redeemed unless all outstanding shares
of Preferred Stock of such series are simultaneously redeemed; provided,
however, that the foregoing shall not prevent the purchase or acquisition of
shares of Preferred Stock of such series or of shares of such other series of
Preferred Stock pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding shares of Preferred Stock of such series, and
unless the full cumulative dividends on all outstanding shares of any cumulative
Preferred Stock of such series and any other stock of the Company ranking on a
parity with such series as to dividends and upon liquidation shall have been
paid or contemporaneously are declared and paid for all past dividend periods,
the Company shall not purchase or otherwise acquire directly or indirectly any
shares of Preferred Stock of such series (except by conversion into or exchange
for stock of the Company ranking junior to the Preferred Stock of such series as
to dividends and upon liquidation.)
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Unless otherwise indicated in the applicable Prospectus Supplement, notice
of redemption will be mailed at least 30 days but not more than 60 days before
the redemption date to each holder of record of shares of Preferred Stock to be
redeemed at the address shown on the stock transfer books of the Company. After
the redemption date, dividends will cease to accrue on the shares of Preferred
Stock called for redemption and all rights of the holders of such shares will
terminate, except the right to receive the redemption price without interest.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, then, before any distribution or payment shall be
made to the holders of any stock over which a series of Preferred Stock has
preference or priority in the distribution of assets on any liquidation,
dissolution or winding up of the Company, the holders of such series of
Preferred Stock shall be entitled to be paid in full an amount equal to the
liquidation preference per share (as set forth in the applicable Prospectus
Supplement), plus an amount equal to all dividends accrued and unpaid thereon.
Except as otherwise provided in the Certificate of Amendment relating to such
series and described in an applicable Prospectus Supplement, after payment of
the full amount of the liquidating distributions to which they are entitled, the
holders of Preferred Stock will have no right or claim to any of the remaining
assets of the Company. In the event that, upon any such voluntary or
involuntary liquidation, dissolution or winding up, the available assets of the
Company are insufficient to pay such amount on all outstanding shares of a
series of Preferred Stock and the corresponding amounts payable on all shares of
other classes or series of stock of the Company ranking on a parity with such
series of Preferred Stock in the distribution of assets, then the holders of
such series of Preferred Stock and of all other such classes or series shall
share ratably in any distribution of assets in proportion to the full amounts to
which they would otherwise be respectively entitled.
If such payment shall have been made in full to all holders of shares of
such series of Preferred Stock, the remaining assets of the Company shall be
distributed among the holders of any other classes or series of stock ranking
junior to such series of Preferred Stock upon liquidation, dissolution or
winding up, according to their respective rights and preferences and in each
case according to their respective number of shares. For such purposes, the
consolidation or merger of the Company with or into any other corporation, or
the sale, lease or conveyance of all or substantially all of the property or
business of the Company, shall not be deemed to constitute a liquidation,
dissolution or winding up of the Company.
Voting Rights
Holders of the Preferred Stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
otherwise provided in the related Certificate of Amendment and described in the
applicable Prospectus Supplement.
Unless otherwise provided in a Prospectus Supplement relating to shares of
Preferred Stock, so long as any shares of Preferred Stock remain outstanding,
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the Company will not, without the affirmative vote or consent of the holders of
a majority of the shares of each series of Preferred Stock outstanding at the
time, given in person or by proxy, either in writing or at a meeting (such
series voting separately as a class), (i) authorize, create or issue, or
increase the authorized or issued amount of, any class or series of stock
ranking prior to such series of Preferred Stock with respect to payment of
dividends or the distribution of assets on liquidation, dissolution or winding
up or reclassify any authorized stock of the Company into any such prior shares,
or create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such prior shares; or (ii) amend, alter or
repeal the provisions of the Company's Certificate of Incorporation, whether by
merger, consolidation or otherwise, so as to materially and adversely affect any
right, preference, privilege or voting power of such series of Preferred Stock
or the holders thereof; provided, however, that any increase in the amount of
the authorized shares of Preferred Stock or the creation or issuance of other
series of Preferred Stock, or any increase in the amount of authorized shares of
such series or of any other series of Preferred Stock, in each case ranking on a
parity with or junior to the Preferred Stock of such series, shall not be deemed
to materially and adversely affect such rights, preferences, privileges or
voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of the Preferred Stock shall have been
redeemed or called for redemption and sufficient funds shall have been deposited
in trust to effect such redemption.
Unless otherwise provided in the related Certificate of Amendment and
described in the applicable Prospectus Supplement, the Company's Certificate of
Incorporation may be amended to increase the number of authorized shares of
Preferred Stock without the vote of the holders of outstanding shares of
Preferred Stock.
Conversion and Exchange
The Prospectus Supplement for any series of Preferred Stock will describe
the provisions in the related Certificate of Amendment that set forth the
conditions or terms, if any, upon which any such series will be convertible or
exchangeable, and the terms of the Company's securities into which such series
will be convertible or exchangeable. If the conversion price or terms of
exchange for a series of Preferred Stock is subject to adjustment upon the
occurrence of certain events, the formulas for such adjustment will be set forth
in the related Certificate of Amendment and described in the applicable
Prospectus Supplement. Conversion price adjustments or omissions in making such
adjustments may, under certain circumstances, be deemed to be distributions that
could be taxable as dividends under the Internal Revenue Code.
Unless otherwise provided in the related Certificate of Amendment and
described in the applicable Prospectus Supplement, if a series of Preferred
Stock is convertible into another security of the Company("Convertible Preferred
Stock"), holders of such Convertible Preferred Stock will have the right, at
their option and at any time, to convert any of such Convertible Preferred
Stock, initially at the conversion price set forth in the Prospectus Supplement
relating to such Convertible Preferred Stock, provided that, if such series of
Convertible Preferred Stock is called for redemption, the conversion rights
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pertaining thereto will terminate at the close of business on the business day
immediately preceding the date fixed for redemption. No fractional shares will
be issued upon conversion of shares of any series of Convertible Preferred
Stock, but if such conversion results in a fraction, an equivalent amount will
be paid in cash by the Company on such basis as shall be set forth in the
Certificate of Amendment relating to such series and described in the applicable
Prospectus Supplement.
Shares of Preferred Stock surrendered for conversion during the period from
the close of business on any regular record date next preceding any dividend
payment date to the opening of business on such dividend payment date (except
shares of Preferred Stock called for redemption) must be accompanied by payment
of an amount equal to the dividend or distribution on such payment date on the
shares of Preferred Stock so converted. In the case of any shares of Preferred
Stock which have been converted after any regular record date but on or before
the next dividend payment date (except shares of Preferred Stock called for
redemption within such period), the dividend or distribution payable on such
payment date shall be paid notwithstanding such conversion, and such dividend
shall be paid or distribution made to the holder of such shares of Preferred
Stock on such regular record date. Except as described above, no dividend or
distribution on converted shares of Preferred Stock will be payable by the
Company on any dividend payment date subsequent to the date of conversion. No
other payment or adjustment for dividends or distributions will be made upon
conversion.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of the
material general provisions of the Deposit Agreement (as defined below) and of
the Depositary Shares and Depositary Receipts do not purport to be complete and
are subject to and qualified in their entirety by reference to the Deposit
Agreement and Depositary Receipts relating to each series of Preferred Stock
subject to a Deposit Agreement, which Deposit Agreement (including the form of
Depositary Receipt) will be filed with the Commission and incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
is a part at or prior to the time of the issuance of such series of the
Preferred Stock. Further material provisions of the Depositary Shares will be
summarized in the Prospectus Supplement relating thereto.
General
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, in which case the Company will offer to the public receipts for
Depositary Shares, each of which will represent a fraction (to be set forth in
the Prospectus Supplement relating to a particular series of the Preferred
Stock) of a share of a particular series of the Preferred Stock as described
below.
The shares of any series of the Preferred Stock represented by
Depositary Shares will be deposited under a separate deposit agreement (the
"Deposit Agreement") among the Company, a bank or trust company selected by the
Company (the "Share Depositary") and the holders from time to time of the
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Depositary Receipts. Subject to the terms of the Deposit Agreement, each owner
of a Depositary Share will be entitled, in proportion to the applicable fraction
of a share of Preferred Stock represented by such Depositary Share, to all the
rights and preferences of the Preferred Stock represented thereby (including
dividend, voting, redemption and liquidation rights).
The Depositary Shares relating to any series of the Preferred Stock
will be evidenced by Depositary Receipts issued pursuant to the related Deposit
Agreement. Depositary Receipts will be distributed to those persons purchasing
such Depositary Shares in accordance with the terms of the offering made by the
related Prospectus Supplement.
Upon surrender of Depositary Receipts at the office of the Share
Depositary and upon payment of the charges provided in the Deposit Agreement and
subject to the terms thereof, a holder of Depositary Shares is entitled to have
the Share Depositary deliver to such holder the whole shares of Preferred Stock
underlying the Depositary Shares evidenced by the surrendered Depositary
Receipts.
Dividends and Other Distributions
The Share Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion, insofar as
practicable, to the respective numbers of Depositary Shares evidenced by such
Depositary Receipts held by such holders on the relevant record date. The Share
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and any balance not so distributed shall be added to and treated as part of the
next sum received by the Share Depositary for distribution to record holders of
Depositary Shares then outstanding.
In the event of a distribution other than in cash, the Share Depositary
will distribute such amounts of the securities or property received by it as
are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Depositary Receipts held by such holders on
the relevant record date, unless the Share Depositary determines that it is not
feasible to make such distribution, in which case the Share Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
of such securities or property.
The Deposit Agreement will also contain provisions relating to the
manner in which any subscription or similar rights offered by the Company to
holders of the Preferred Stock shall be made available to holders of Depositary
Shares relating to such Preferred Stock.
The amount distributed in all of the foregoing cases will be reduced by
any amounts required to be withheld by the Company or the Share Depositary on
account of taxes and governmental charges.
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Redemption of Depositary Shares
If a series of the Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Share Depositary resulting from the redemption, in whole or in
part, of such series of the Preferred Stock held by the Share Depositary. The
Share Depositary shall mail notice of redemption not less than 30 and not more
than 60 days prior to the date fixed for redemption to the record holders of the
Depositary Receipts evidencing the Depositary Shares to be so redeemed at their
respective addresses appearing in the Share Depositary's books. The redemption
price per Depositary Share will be equal to the applicable fraction of the
redemption price per share payable with respect to such series of Preferred
Stock plus all money and other property, if any, payable with respect to such
Depositary Share, including all amounts payable by the Company in respect of any
accumulated but unpaid dividends. Whenever the Company redeems shares of
Preferred Stock held by the Share Depositary, the Share Depositary will redeem
as of the same redemption date the number of Depositary Shares representing
shares of Preferred Stock so redeemed. If less than all the Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed will be selected by lot
or pro rata (subject to rounding to avoid fractions of Depositary Shares) as may
be determined by the Share Depositary.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all rights of the
holders of Depositary Receipts evidencing such Depositary Shares will cease,
except the right to receive the moneys payable upon such redemption and any
money or other property to which such holders were entitled upon such redemption
upon surrender to the Share Depositary of the Depositary Receipts evidencing
such Depositary Shares.
Voting of the Preferred Stock
Upon receipt of notice of any meeting or action to be taken by written
consent at or as to which the holders of the Preferred Stock are entitled to
vote or consent, the Share Depositary will mail the information contained in
such notice of meeting or action to the record holders of the Depositary
Receipts evidencing the Depositary Shares relating to such Preferred Stock.
Each record holder of such Depositary Shares on the record date (which will be
the same date as the record date for the Preferred Stock) will be entitled to
instruct the Share Depositary as to the exercise of the voting rights or the
giving or refusal of consent, as the case may be, pertaining to the number of
shares of the Preferred Stock represented by the Depositary Shares evidenced by
such holder's Depositary Receipts. The Share Depositary will endeavor, insofar
as practicable, to vote, or give or withhold consent with respect to, the
maximum number of whole shares of the Preferred Stock represented by all
Depositary Shares as to which any particular voting or consent instructions are
received, and the Company will agree to take all action which may be deemed
necessary by the Share Depositary in order to enable the Share Depositary to do
so. The Share Depositary will abstain from voting, or giving consents with
respect to, shares of the Preferred Stock to the extent it does not receive
specific instructions from the holders of Depositary Receipts evidencing
Depositary Shares representing such Preferred Stock.
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Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares
relating to any series of Preferred Stock and any provision of the related
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Share Depositary in any respect which they may deem
necessary or desirable. However, any amendment which imposes or increases any
fees, taxes or charges upon holders of Depositary Shares relating to any series
of Preferred Stock or which materially and adversely alters the existing rights
of such holders will not be effective unless such amendment has been approved by
the record holders of Depositary Shares evidencing at least a majority of such
Depositary Shares then outstanding. Notwithstanding the foregoing, no such
amendment may impair the right of any holder of Depositary Shares to receive any
moneys or other property to which such holder may be entitled under the terms of
such Depositary Receipts or the Deposit Agreement at the times and in the manner
and amount provided for therein. A Deposit Agreement may be terminated by the
Company or the Share Depositary only after (i) all outstanding Depositary Shares
relating thereto have been redeemed and any accumulated and unpaid dividends on
the Preferred Stock represented by the Depositary Shares, together with all
other moneys and property, if any, to which holders of the related Depositary
Shares are entitled under the terms of such Depositary Receipts or the related
Deposit Agreement, have been paid or distributed as provided in the Deposit
Agreement or provision therefor has been duly made, (ii) there has been a final
distribution in respect of the Preferred Stock of the relevant series in
connection with any liquidation, dissolution or winding up of the Company and
such distribution has been distributed to the holders of the related Depositary
Shares, or distributed to the holders of the related Depositary Receipts, or
(iii) in the event the Depositary Shares relate to a series of Preferred Stock
which is convertible into shares of Class A Common Stock or another series of
Preferred Stock, all outstanding Depositary Shares have been converted into
shares of Class A Common Stock or another series of Preferred Stock.
Miscellaneous
The Share Depositary will forward to record holders of Depositary
Shares, at their respective addresses appearing in the Share Depositary's books,
all reports and communications from the Company which are delivered to the Share
Depositary and which the Company is required to furnish to the holders of the
Preferred Stock or Depositary Shares.
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay the charges of the Share Depositary in connection with the initial
deposit of the Preferred Stock and the initial issuance of the Depositary
Receipts evidencing the Depositary Shares, any redemption of the Preferred Stock
and any withdrawals of Preferred Stock by the holders of Depositary Shares.
Holders of Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
- 30 -
<PAGE>
The Deposit Agreement will contain provisions relating to adjustments in the
fraction of a share of Preferred Stock represented by a Depositary Share in the
event of a change in par or stated value, split-up, combination or other
reclassification of the Preferred Stock or upon any recapitalization, merger or
sale of substantially all of the assets of the Company.
Neither the Share Depositary nor any of its agents nor any registrar nor the
Company will be (i) liable if it is prevented or delayed by law or any
circumstance beyond its control in performing its obligations under the Deposit
Agreement, (ii) subject to any liability under the Deposit Agreement to holders
of Depositary Shares other than for the relevant party's gross negligence or
willful misconduct, or (iii) obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or the Preferred Stock unless
satisfactory indemnity is furnished. They may rely upon written advice of
counsel or accountants, or information provided by holders of Depositary Shares
or other persons in good faith believed to be competent and on documents
reasonably believed to be genuine.
Resignation or Removal of Share Depositary
The Share Depositary may resign at any time by delivering to the Company
notice of its election to do so, and the Company may at any time remove the
Share Depositary, any such resignation or removal to take effect upon the
appointment of a successor Share Depositary and its acceptance of such
appointment. Such successor Share Depositary must be appointed within 60 days
after delivery of the notice of resignation or removal.
OTHER MATTERS APPLICABLE TO THE OFFERED SECURITIES
On February 9, 1994, the Board of Directors of the Company adopted a Rights
Plan (the "Shareowner Rights Plan") which provided for a dividend of one
Preferred Share Purchase Right (collectively, the "Rights") to be declared for
each share of Class A Common Stock outstanding at the close of business on
February 18, 1994 and authorized the issuance of one Right for each share of
Class A Common Stock issued thereafter and prior to certain change in control
events. The Rights are generally not exercisable until 10 days after a person
or group acquires beneficial ownership (as defined) 15% of the Class A Common
Stock or announces a tender offer which could result in a person or group
beneficially owning 15% or more of the Class A Common Stock (an "Acquisition").
Each Right, should it become exercisable, will entitle the owner to buy 1/100th
of a share of the Company's Series A Junior Preferred Stock at an exercise
price of $80.00, subject to adjustment.
In the event of an Acquisition without the approval of the Board, each Right
will entitle the owner, other than an Acquirer (as defined), to buy at the
Rights' then current exercise price, a number of shares of Class A Common Stock
having a market value equal to twice the exercise price. In addition, if at the
time when there was a 15% shareowner, the Company were to be acquired by merger,
shareowners with unexercised Rights could purchase common stock of the acquirer
having a value equal to twice the exercise price of the Rights. The Board may
- 31 -
<PAGE>
redeem the Rights for $0.01 per Right at any time prior to an Acquisition.
Unless earlier redeemed, the Rights will expire on February 18, 2004.
In addition to the Shareowner Rights Plan, the staggered election of the
Company's Board of Directors, the authority to issue Preferred Stock without
further shareowner approval, the effect of certain by-laws, the possible impact
of the antitrust laws and certain provisions of New Jersey statutes may deter a
hostile takeover of the Company.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to or through underwriters or
dealers, directly to other purchasers, through agents, or through a combination
of any such methods of sale. Any such underwriter, dealer or agent involved in
the offer and sale of the Offered Securities will be named in the applicable
Prospectus Supplement or Prospectus Supplements, including any such Supplement
distributed for the purpose of providing pricing and other related information
(a "Pricing Supplement").
The distribution of Offered Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with sales of the Offered Securities, underwriters may receive
compensation from the Company or from purchasers of Offered Securities in the
form of discounts, concessions or commissions. Underwriters may sell Offered
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters, dealers
or agents in connection with the offering of Offered Securities, and any
discounts, concessions or commissions allowed by underwriters to participating
dealers, will be set forth in the applicable Prospectus Supplement or Pricing
Supplement. Underwriters, dealers and agents participating in the distribution
of the Offered Securities may be deemed to be underwriters, and any discounts or
commissions received by them from the Company and any profit realized by them on
resale of the Offered Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. Underwriters, dealers and agents that
participate in the distribution of Offered Securities may be entitled, under
agreements entered into with the Company, to indemnification against and
contribution toward the payment of certain liabilities, including liabilities
under the Securities Act, and to reimbursement for certain expenses.
If so indicated in a Prospectus Supplement, the Company will authorize
dealers acting as the Company's agents to solicit offers by certain institutions
to purchase the Offered Securities to which such Prospectus Supplement relates
from the Company at the public offering price set forth in such Prospectus
Supplement pursuant to Delayed Delivery Contracts ("Contracts") providing for
- 32 -
<PAGE>
payment and delivery on a specified date or on specified dates in the future.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, and other institutions, but
will in all cases be subject to the approval of the Company. Contracts will not
be subject to any conditions except (i) the purchase by an institution of the
Offered Securities covered by its Contracts shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which such
institution is subject, and (ii) if the Offered Securities are being sold to
underwriters, the Company shall have sold to such underwriters the total
principal amount of the Offered Securities less the principal amount thereof
covered by Contracts.
Certain of the underwriters, dealers or agents and their affiliates or
associates may engage in transactions with and perform services for the Company
or one or more of its subsidiaries in the ordinary course of business.
The specific terms and manner of sale, including the place and time of
delivery, of the Offered Securities in respect of which this Prospectus is being
delivered will be set forth or summarized in the applicable Prospectus
Supplement.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Lowenstein, Sandler, Kohl, Fisher & Boylan, a Professional Corporation,
Roseland, New Jersey.
EXPERTS
The consolidated financial statements of the Company as of September 30,
1995 and 1994, for the years ended September 30, 1995 and 1994, the one month
period ended September 30, 1993, and the year ended August 31, 1993 incorporated
in this Prospectus by reference to the Company's Annual Report on Form 10-K for
the year ended September 30, 1995 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in auditing and accounting.
- 33 -
<PAGE>
============================================= =========================
No dealer, salesman or any other person is
authorized in connection with any offering
made hereby to give any information or to
make any representation other than those
contained or incorporated by reference in
this Prospectus or any Prospectus
Supplement and, if given or made, such $400,000,000
information or representation must not be
relied upon as having been authorized. BERGEN BRUNSWIG
This Prospectus and any Prospectus CORPORATION
Supplement do not constitute an offer to
sell or a solicitation of an offer to buy
any security other than the securities
offered thereby, nor do they constitute an
offer to sell or a solicitation of an
offer to buy any of the securities offered
thereby to ny person in any jurisdiction
in which it is unlawful to make such an
offer or solicitation. Neither the Securities
delivery of this Prospectus or any
Prospectus Supplement nor any sale made
hereunder and thereunder shall, under any
circumstances, create any implication that
the information contained herein or
therein is correct as of any date
subsequent to the date hereof or thereof.
------------------------- -------------------------
TABLE OF CONTENTS PROSPECTUS
------------------------- -------------------------
<PAGE>
Page
----
Available Information................ 3
Incorporation of Certain Documents
by Reference..................... 4
The Company.......................... 5
Use of Proceeds...................... 5
Ratio of Earnings to Fixed Charges... 5
Description of Debt Securities....... 6
Senior Debt Securities............... 15
Subordinated Debt Securities......... 16
Description of Class A Common Stock.. 18
Description of Warrants.............. 19
Description of Preferred Stock....... 22
Description of Depositary Shares..... 27
Other Matters Applicable to the
Offered Securities............... 31
Plan of Distribution................. 32
Legal Matters........................ 33
Experts.............................. 33
============================================= =========================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
<TABLE>
<CAPTION>
Item 14. Other Expenses of Issuance and Distribution
<S> <C>
Securities and Exchange Commission registration fee................... $ 137,932
Legal fees and expenses............................................... 75,000
Accounting fees and expenses.......................................... 75,000
Printing and engraving expenses....................................... 75,000
Trustees' fees and expenses........................................... 15,000
Rating Agency Fees.................................................... 200,000
Miscellaneous expenses................................................ 62,068
---------
Total................................................................. $ 640,000
=========
</TABLE>
All expenses other than the Securities and Exchange Commission registration fee
are estimated.
Item 15. Indemnification of Directors and Officers
Under the Company's Certificate of Incorporation, every person who is or was
a director, officer, employee or agent of the Company and the legal
representative of such a person is entitled to receive indemnification from the
Company to the fullest extent permitted by law. Under New Jersey law, directors
and officers may be indemnified in certain situations, subject to the Company's
having taken certain actions and the directors and officers having met certain
specified standards of conduct. In addition, in April, 1986, the Company
entered into agreements, which were amended on July 3, 1986 (collectively, the
"Indemnity Agreement"), to indemnify each of its directors against liabilities
and defense costs to the extent that such directors would have been insured
under the director and officer liability insurance policies which were in effect
on December 31, 1984 (the "1984 Policy"). The 1984 Policy afforded broad
coverage for liabilities arising under ERISA and the securities and antitrust
laws. The obligation of the Company to indemnify a director under the Indemnity
Agreement is limited to $30 million, the maximum coverage available under the
1984 Policy. However, the Indemnity Agreement does not limit a director's right
to recover in excess of $30 million from the Company if the director is
otherwise entitled to statutory indemnification. The Indemnity Agreement was
ratified by the shareowners at the annual meeting held on December 17, 1986.
The Company currently maintains a directors' and officers' insurance policy
which provides liability coverage of $30 million.
In addition, the Company's Certificate of Incorporation eliminates the
personal liability of directors and officers to the Company and its shareowners
for monetary damages for acts or omissions (including negligent and grossly
negligent acts or omissions) in violation of a director's or officer's fiduciary
duty of care. The duty of care refers to a fiduciary duty of directors and
officers to manage the affairs of the Company with the same degree of care as
would be applied by an "ordinarily prudent person under similar circumstances".
The provisions of the Company's Restated Certificate of Incorporation which
II - 1
<PAGE>
eliminate the personal liability of directors and officers do not, in any way,
eliminate or limit the liability of a director or officer for breaching his duty
of loyalty (i.e., the duty to refrain from fraud, self-dealing and transactions
involving improper conflicts of interest) to the Company or its shareowners,
failing to act in good faith, knowingly violating a law or obtaining an improper
personal benefit and do not have any effect on the availability of equitable
remedies.
See also the undertakings set forth with respect to Item 17 herein.
Item 16. Exhibits
1.1 Form of Underwriting Agreement for Class A Common Stock, Warrants to
purchase Class A Common Stock, Debt Securities, Warrants to purchase
Debt Securities, Preferred Stock, Warrants to purchase Preferred
Stock, Depositary Shares, Warrants to Purchase Depositary Shares and
Units.*
4.1 Restated Certificate of Incorporation, as amended, is incorporated by
reference herein to Exhibit 3 to the Registrant's Current Report on
Form 8-K dated May 23, 1995.
4.2 Amended and Restated By-Laws are incorporated by reference to Exhibit
3(a) to the Registrant's Annual Report on Form 10-K for the year ended
September 30, 1995.
4.3 Rights Agreement, dated as of February 8, 1994, between the Registrant
and Chemical Trust Company of California, as Rights Agent, is
incorporated by reference herein to Exhibit 1 to the Registrant's
Registration Statement on Form 8-A dated February 14, 1994.
4.4 Form of Indenture for Senior Debt Securities (excluding LYONs).*
4.5 Form of Indenture for Subordinated Debt Securities (excluding LYONs).*
4.6 Form of Indenture for LYONs (including form of LYON).
4.7 Form of Senior Debt Security.**
4.8 Form of Subordinated Debt Security.**
4.9 Form of Debt Security Warrant Agreement.**
4.10 Form of Common Stock Warrant Agreement.**
4.11 Form of Preferred Stock Warrant Agreement.**
II - 2
<PAGE>
4.12 Form of Depositary Shares Warrant Agreement.**
4.13 Form of specimen Warrant Certificate for Debt Securities.**
4.14 Form of specimen Warrant Certificate for Common Stock.**
4.15 Form of specimen Warrant Certificate for Preferred Stock.**
4.16 Form of specimen certificate representing shares of Class A Common
Stock.**
4.17 Form of specimen Warrant Certificate for Depositary Shares.**
4.18 Form of Certificate of Amendment with respect to Preferred Stock.**
4.19 Form of specimen certificate representing shares of Preferred Stock.**
4.20 Form of Depositary Agreement (including form of Depositary Receipt).**
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan as to the
validity of Offered Securities.**
10.1 Form of Amended and Restated Supplemental Executive Retirement Plan.
10.2 Form of Amended and Restated Capital Accumulation Plan.
12.1 Computation of Ratio of Earnings to Fixed Charges of the Registrant,
as revised.*
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan (included in its
opinion filed as Exhibit 5.1).
24.1 Power of Attorney (set forth on the Signature Page of this
Registration Statement as initially filed).
25.1 Statement of Eligibility of Trustee on Form T-1.
_______________
[FN]
* Filed with this Amendment No. 1.
** If applicable to a particular offering, to be as an exhibit to a report and
incorporated herein by reference.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
II - 3
<PAGE>
A. 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 (the "Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this 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 this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in the Registration Statement.
Provided, however, that clauses (i) and (ii) above shall not apply if the
information required to be included in a post-effective amendment by these
clauses is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") that are incorporated by reference in this Registration Statement.
B. That, for the purpose of determining any liability under the Act, 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.
C. 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.
D. That for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this 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.
E. That insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
II - 4
<PAGE>
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
F. That for purposes of determining any liability under the Act, the
information omitted from a 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 Act
shall be deemed to be part of this Registration Statement as of the time it was
declared effective.
G. That for the purpose of determining any liability under the Act, 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.
II - 5
<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 of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Orange, State of California, on the
19th day of March, 1996.
BERGEN BRUNSWIG CORPORATION
By: /s/ Robert E. Martini
--------------------------
Robert E. Martini
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registrant's Registration Statement has been signed below by the
following persons in the capacities listed below and on the 19th day of March,
1996.
Signature Title
--------- -----
/s/ Robert E. Martini Chairman of the Board,
- ------------------------- Chief Executive Officer
Robert E. Martini and Director
/s/ Jose E. Blanco, Sr.* Director
- -------------------------
Jose E. Blanco, Sr.
/s/ Rodney H. Brady* Director
- -------------------------
Rodney H. Brady
/s/ John Calasibetta* Senior Vice President and
- ---------------------- Director
John Calasibetta
/s/ Neil F. Dimick* Executive Vice President,
- ---------------------- Chief Financial Officer,
Neil F. Dimick Principal Accounting Officer
and Director
<PAGE>
/s/ Charles C. Edwards,M.D.* Director
- ----------------------------
Charles C. Edwards, M.D.
/s/ Charles J. Lee* Director
- ----------------------
Charles J. Lee
/s/ George R. Liddle* Director
- -----------------------
George R. Liddle
/s/ James R. Mellor* Director
- ----------------------
James R. Mellor
/s/George E. Reinhardt, Jr.* Director
- ---------------------------
George E. Reinhardt, Jr.
/s/ Donald R. Roden* President, Chief Operating
- -------------------------- Officer and Director
Donald R. Roden
/s/ Francis G. Rodgers* Director
- ------------------------
Francis G. Rodgers
[FN]
*By: /s/ Robert E. Martini
Robert E. Martini, Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
1.1 Form of Underwriting Agreement for Class A Common Stock, Warrants to
purchase Class A Common Stock, Debt Securities, Warrants to purchase
Debt Securities, Preferred Stock, Warrants to purchase Preferred
Stock, Depositary Shares, Warrants to purchase Depositary Shares and
Units.*
4.1 Restated Certificate of Incorporation, as amended, is incorporated by
reference herein to Exhibit 3 to the Registrant's Current Report on
Form 8-K dated May 23, 1995.
4.2 Amended and Restated By-Laws are incorporated by reference to Exhibit
3(a) to the Registrant's Annual Report on Form 10-K for the year ended
September 30, 1995.
4.3 Rights Agreement, dated as of February 8, 1994, between the Registrant
and Chemical Trust Company of California, as Rights Agent, is
incorporated by reference herein to Exhibit 1 to the Registrant's
Registration Statement on Form 8-A dated February 14, 1994.
4.4 Form of Indenture for Senior Debt Securities (excluding LYONs).*
4.5 Form of Indenture for Subordinated Debt Securities (excluding LYONs).*
4.6 Form of Indenture for LYONs (including form of LYON).
4.7 Form of Senior Debt Security.**
4.8 Form of Subordinated Debt Security.**
4.9 Form of Debt Security Warrant Agreement.**
4.10 Form of Common Stock Warrant Agreement.**
4.11 Form of Preferred Stock Warrant Agreement.**
4.12 Form of Depositary Shares Warrant Agreement.**
4.13 Form of specimen Warrant Certificate for Debt Securities.**
4.14 Form of specimen Warrant Certificate for Common Stock.**
4.15 Form of specimen Warrant Certificate for Preferred Stock.**
4.16 Form of specimen certificate representing shares of Class A
Common Stock.**
<PAGE>
4.17 Form of specimen Warrant Certificate of Depositary Shares.**
4.18 Form of Certificate of Amendment with respect to Preferred
Stock.**
4.19 Form of specimen certificate representing shares of
Preferred Stock.**
4.20 Form of Depositary Agreement (including form of Depositary
Receipt).**
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan as to the
validity of Offered Securities.**
10.1 Form of Amended and Restated Supplemental Executive Retirement Plan.
10.2 Form of Amended and Restated Capital Accumulation Plan.
12.1 Computation of Ratio of Earnings to Fixed Charges of the
Registrant, as revised.*
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan (included
in its opinion filed as Exhibit 5.1).
24.1 Power of Attorney (set forth on the Signature Page of this
Registration Statement as initially filed).
25.1 Statement of Eligibility of Trustee on Form T-1.
_______________
[FN]
* Filed with this Amendment No. 1.
** If applicable to a particular offering, to be filed by amendment or to
be filed as an exhibit to a report and incorporated herein by
reference.
UNDERWRITING AGREEMENT
between
BERGEN BRUNSWIG CORPORATION,
a New Jersey corporation,
and
____________________
Class A Common Stock
Warrants to Purchase Class A Common Stock
Preferred Stock
Warrants to Purchase Preferred Stock
Depositary Shares
Warrants to Purchase Depositary Shares
Debt Securities
Warrants to Purchase Debt Securities
___________, 1996
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. Representations and Warranties............................... 6
(a) Representations and Warranties by the Company.................. 6
(1) Compliance with Registration Requirements................. 6
(2) Incorporated Documents.................................... 7
(3) Independent Accountants................................... 8
(4) Financial Statements...................................... 8
(5) No Material Adverse Change in Business.................... 8
(6) Good Standing of the Company.............................. 9
(7) Good Standing of Subsidiaries............................. 9
(8) Capitalization............................................ 10
(9) Authorization of this Underwriting Agreement and
Terms Agreement......................................... 10
(10) Authorization of Class A Common Stock..................... 10
(11) Authorization of Preferred Stock and/or Depositary Shares. 11
(12) Authorization of Deposit Agreement........................ 11
(13) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities........................... 12
(14) Authorization of the Indentures........................... 12
(15) Authorization of Warrants................................. 12
(16) Authorization of Warrant Agreement........................ 13
(17) Authorization of Underlying Securities.................... 13
(18) Descriptions of the Underwritten Securities, Underlying
Securities, Indentures, Deposit Agreement and Warrant
Agreement.............................................. 14
(19) Absence of Defaults and Conflicts......................... 14
(20) Absence of Labor Dispute.................................. 15
(21) Absence of Proceedings.................................... 16
(22) Accuracy of Exhibits...................................... 16
(23) Absence of Further Requirements........................... 16
(24) Possession of Intellectual Property....................... 16
(25) Possession of Licenses and Permits........................ 17
(26) Title to Property......................................... 17
(27) Commodity Exchange Act.................................... 18
(28) Investment Company Act.................................... 18
(29) Environmental Laws........................................ 18
(30) Compliance with Cuba Act.................................. 19
(b) Officers' Certificates......................................... 19
SECTION 2. Sale and Delivery to Underwriters; Closing................... 19
(a) Underwritten Securities........................................ 19
(b) Option Underwritten Securities................................. 19
(c) Payment........................................................ 20
(d) Denominations; Registration.................................... 21
i
<PAGE>
SECTION 3. Covenants of the Company..................................... 22
(a) Compliance with Securities Regulations and Commission Requests. 22
(b) Filing of Amendments........................................... 23
(c) Delivery of Registration Statements............................ 23
(d) Delivery of Prospectuses....................................... 23
(e) Continued Compliance with Securities Laws...................... 23
(f) Blue Sky Qualifications........................................ 24
(g) Earnings Statement............................................. 24
(h) Reservation of Securities...................................... 25
(i) Use of Proceeds................................................ 25
(j) Listing........................................................ 25
(k) Restriction on Sale of Securities.............................. 25
(l) Reporting Requirements......................................... 25
SECTION 4. Payment of Expenses.......................................... 25
(a) Expenses....................................................... 25
(b) Termination of Agreement....................................... 26
SECTION 5. Conditions of Underwriters' Obligations...................... 26
(a) Effectiveness of Registration Statement........................ 27
(b) Opinion of Counsel for Company................................. 27
(c) Opinion of Counsel for Underwriters............................ 27
(d) Officers' Certificate.......................................... 28
(e) Accountant's Comfort Letter.................................... 28
(f) Bring-down Comfort Letter...................................... 28
(g) Ratings........................................................ 29
(h) Approval of Listing............................................ 29
(i) No Objection................................................... 29
(j) Lock-up Agreements............................................. 29
(k) Over-Allotment Option.......................................... 29
(l) Additional Documents........................................... 30
(m) Termination of Terms Agreement................................. 30
SECTION 6. Indemnification.............................................. 31
(a) Indemnification of Underwriters................................ 31
(b) Indemnification of Company, Directors and Officers............. 32
(c) Actions Against Parties; Notification.......................... 32
(d) Settlement Without Consent if Failure to Reimburse............. 33
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<PAGE>
SECTION 7. Contribution................................................. 33
SECTION 8. Representations, Warranties and Agreements to Survive Delivery 35
SECTION 9. Termination.................................................. 35
(a) Underwriting Agreement......................................... 35
(b) Terms Agreement................................................ 35
(c) Liabilities.................................................... 36
SECTION 10. Default by One or More of the Underwriters.................. 36
SECTION 11. Notices..................................................... 37
SECTION 12. Parties..................................................... 37
SECTION 13. GOVERNING LAW AND TIME...................................... 38
SECTION 14. Effect of Headings.......................................... 38
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<PAGE>
BERGEN BRUNSWIG CORPORATION
(a New Jersey corporation)
Class A Common Stock
Warrants to Purchase Class A Common Stock
Preferred Stock
Warrants to Purchase Preferred Stock
Depositary Shares
Warrants to Purchase Depositary Shares
Debt Securities
Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT
----------------------
February __, 1996
_______________________
_______________________
_______________________
_______________________
Ladies and Gentlemen:
Bergen Brunswig Corporation, a New Jersey corporation (the "Company"),
proposes to issue and sell up to U.S. $400,000,000 aggregate initial public
offering price of its (i) shares of Class A common stock, par value $1.50 per
share (the "Class A Common Stock"), (ii) warrants to purchase shares of Class A
Common Stock (the "Class A Common Stock Warrants"), (iii) shares of preferred
stock, no par value (the "Preferred Stock"), (iv) warrants to purchase shares of
Preferred Stock (the "Preferred Stock Warrants"), (v) senior or subordinated
debt securities (the "Debt Securities"), (vi) warrants to purchase Debt
Securities (the "Debt Security Warrants"), (vii) Depositary Shares (as defined
below) or (viii) warrants to purchase Depositary Shares (the "Depositary Share
Warrants"), or any combination thereof, from time to time, in or pursuant to one
or more offerings on terms to be determined at the time of sale.
The Preferred Stock will be issued in one or more series and each series of
Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates, redemption provisions, sinking
fund requirements, conversion provisions (and terms of the related Underlying
Securities (as defined below)) and any other variable terms as set forth in the
applicable certificate of amendment of the Company's Certificate of
Incorporation (each, the "Certificate of Amendment") relating to such series of
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Preferred Stock. A series of Preferred Stock may be represented by depositary
shares (the "Depositary Shares") that are evidenced by depositary receipts (the
"Depositary Receipts") issued pursuant to a deposit agreement (each, a "Deposit
Agreement") among the Company, the depositary identified therein (the
"Depositary") and the registered holders of the Depositary Receipts issued
thereunder.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under (other than the LYONs(TM), as
defined below) an indenture, dated as of March 1, 1996 (the "Senior Indenture"),
between the Company and Chemical Trust Company of California, as trustee (the
"Senior Trustee"), or as subordinated indebtedness (the "Subordinated Debt
Securities") under (other than the LYONs(TM)) an indenture, dated as of March 1,
1996 (the "Subordinated Indenture"), between the Company and Chemical Trust
Company of California, as trustee (the "Subordinated Trustee", and collectively
with the Senior Trustee, the "Trustees", and each, a "Trustee"). In addition to
such Senior Debt Securities and such Subordinated Debt Securities, the Company
may offer Debt Securities denominated "Liquid Yield Option(TM) Notes" (the
"LYONs"(TM)) under a separate indenture (the "LYONs Indenture"). The Senior
Indenture, Subordinated Indenture and LYONs Indenture are sometimes referred to
collectively herein as the "Indentures." 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, conversion provisions
(and terms of the related Underlying Securities) and any other variable terms
established by or pursuant to the applicable Indenture.
Each issue of Class A Common Stock Warrants, Preferred Stock Warrants, Debt
Security Warrants and Depositary Share Warrants (collectively, the "Warrants")
will be issued pursuant to a separate warrant agreement (each, a "Warrant
Agreement") between the Company and the warrant agent identified therein (each,
a "Warrant Agent"). The Warrants may vary, as applicable, as to, among other
terms, title, type, specific number, exercise dates or periods, exercise
price(s), expiration date(s) and terms of the related Underlying Securities.
As used herein, "Securities" shall mean the Class A Common Stock, Class A
Common Stock Warrants, Preferred Stock, Preferred Stock Warrants, Depositary
Shares, Depositary Share Warrants, Senior Debt Securities, Subordinated Debt
Securities, Debt Securities Warrants or any combination thereof, initially
issuable by the Company and "Underlying Securities" shall mean the Class A
Common Stock, Preferred Stock, Depositary Shares, Senior Debt Securities or
Subordinated Debt Securities issuable upon exercise of the Warrants, as
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applicable, or upon conversion of the Preferred Stock, Depositary Shares, Senior
Debt Securities or Subordinated Debt Securities, as applicable. For purposes of
this Agreement, the phrase "or similar rights" when modifying the term
"preemptive rights," shall refer to a right to purchase securities which
entitles the holder thereof to maintain such holder's proportionate equity
interest in an entity.
Whenever the Company determines to make an offering of Securities through
_____________________________ ("___________"), or through an underwriting
syndicate managed by _____________, 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, _____________ and any such other
underwriters, if any, selected by _____________ (the "Underwriters," which term
shall include ____________ 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 number or aggregate principal amount, as the case may be, of
Securities to be initially issued (the "Initial Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to substitution
as provided in Section 10 hereof) and the name of any Underwriter other than
_____________ acting as co-manager in connection with such offering, the number
or aggregate principal amount, as the case may be, of Initial 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 Initial Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Underwritten Securities and any
other material variable terms of the Initial Underwritten Securities, as well as
the material variable terms of any related Underlying Securities. In addition,
if applicable, such Terms Agreement shall specify whether the Company has agreed
to grant to the Underwriters an option to purchase additional Securities to
cover over-allotments, if any, and the number or aggregate principal amount, as
the case may be, of Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
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 _____________, acting
for itself and, if applicable, as representative of any other Underwriters.
Each offering of Underwritten Securities though ____________ as sole Underwriter
or through an underwriting syndicate managed by ______________ will be governed
by this Underwriting Agreement, as supplemented by the applicable Terms
Agreement, if so indicated in the applicable Terms Agreement.
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<PAGE>
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-631) [and
pre-effective amendment[s] no[s]. ______ thereto] for the registration of the
Securities and the Underlying 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
(other than the LYONs Indenture as of the date hereof) 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 Rule 434(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 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 Section 462(b) of the 1933 Act
Regulations (the "Rule 462 Registration Statement"), then, after such filing,
all references to "Registration Statement" shall be deemed to include the Rule
462 Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall 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 Rule 434 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 Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(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,
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<PAGE>
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include the 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 which 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. With respect to each
offering of Securities pursuant to this Agreement and the applicable Terms
Agreement, except as otherwise set forth in such Terms Agreement, the Company
represents and warrants to ______________ as of the date hereof, and to
______________ and each other Underwriter, if any, named in the applicable Terms
Agreement, as of the date of such Terms Agreement, as of the Closing Time (as
defined below) and, if applicable, as of each Date of Delivery (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, are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request made to the
Company by the Commission for additional information has been complied
with. In addition, each Indenture (not including any LYONs Indenture as of
the date hereof, but in the event of any offering of LYONs, including any
related LYONs Indenture from and after the date of the Terms Agreement
relating to such offering of LYONs) has been duly qualified under the 1939
Act.
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<PAGE>
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including
the filing of the Company's most recent Annual Report on Form 10-K with the
Commission (the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement, any Rule 462(b)
Registration Statement and any amendments and supplements thereto complied
and will comply, in all material respects, with the requirements of the
1933 Act, the 1933 Act Regulations, 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, at the Closing Time and at each Date of Delivery,
if any, 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 (i) 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
_____________ expressly for use in the Registration Statement or the
Prospectus or (ii) statements in or omissions from that part of the
Registration Statement which shall constitute the statement of eligibility
and qualification under the 1939 Act (Form T-1) of the Trustee under the
Indentures.
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 Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and, if
applicable, 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 the
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, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
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<PAGE>
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, at the Closing Time and at each Date of Delivery,
if any, 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 they were made, not
misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules 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 consolidated financial position of the Company and its consolidated
subsidiaries, at the dates indicated and the results of operations, changes
in stockholders' equity and cash flows of the Company and its consolidated
subsidiaries, 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,
except as indicated therein. 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,
except as indicated therein. 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 basis 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 latest date as
of which information is given in the Registration Statement and the
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<PAGE>
Prospectus (including information expressly stated therein, incorporated by
reference therein or otherwise contemplated therein, 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 (a "Material Adverse Effect"), whether or not arising in the
ordinary course of business, (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, which 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 Company's
certificate of incorporation, 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 New Jersey and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus, with only such exceptions as would not result in a Material
Adverse Effect, and to enter into and perform its obligations 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 Rule 1-02 of Regulation S-X
promulgated under the 1933 Act) (each, a "Subsidiary" and, collectively,
the ("Subsidiaries"), 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,
with only such exceptions as would not result in a Material Adverse Effect,
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
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<PAGE>
standing would not result in a Material Adverse Effect. Except as
otherwise stated or incorporated by reference 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 the Subsidiaries was issued in violation of preemptive or
other similar rights arising by operation of law, under the charter or
bylaws of any Subsidiary or under any agreement to which the Company or any
Subsidiary is a party.
(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 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 were issued in violation of preemptive or other similar rights
arising by operation of law, under the certificate of incorporation or
bylaws of the Company or under any agreement to which the Company or any of
its subsidiaries is a party.
(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 Class A Common Stock. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Class A Common Stock, such Underwritten Securities 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 delivered
by the Company pursuant to this Underwriting Agreement and such Terms
Agreement against payment of the consideration therefor specified in such
Terms Agreement, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights arising by
operation of law, under the certificate of incorporation and bylaws of the
Company or under any agreement to which the Company or any of its
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<PAGE>
subsidiaries is a party, or otherwise. No holder of such Underwritten
Securities will be subject to personal liability by reason of being such a
holder.
(11) Authorization of Preferred Stock and/or Depositary Shares. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Preferred Stock and/or Depositary Shares, such
Underwritten Securities 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. The
applicable Preferred Stock, when issued and delivered by the Company
pursuant to this Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor, or for the related Depositary
Shares, as the case may be, specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights arising by operation of law, under the
certificate of incorporation and bylaws of the Company or under any
agreement to which the Company or any of its subsidiaries is a party. In
addition, upon deposit by the Company of any Preferred Stock represented by
Depositary Shares with the applicable Depositary and the execution and
delivery by such Depositary of the Depositary Receipts evidencing such
Depositary Shares, in each case pursuant to the applicable Deposit
Agreement, such Depositary Shares will represent legal and valid interests
in such Preferred Stock. No holder of Preferred Stock or Depositary
Receipts evidencing Depositary Shares will be subject to personal liability
by reason of being such a holder. The applicable Certificate of Amendment
will be in full force and effect prior to the Closing Time.
(12) Authorization of Deposit Agreement. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Depositary Shares or if Debt Securities are convertible into Preferred
Stock represented by Depositary Shares, the applicable Deposit Agreement
has been, or prior to the issuance of such Depositary Shares 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 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. Each registered holder of a Depositary Receipt under
the applicable Deposit Agreement will be entitled to the proportional
rights, preferences and limitations of the Preferred Stock represented by
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<PAGE>
the Depositary Shares evidenced by such Depositary Receipt and to such
other rights as are granted to such registered holder in such Deposit
Agreement.
(13) Authorization of Senior Debt Securities and/or Subordinated Debt
Securities. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underwritten Securities 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 be in a form
permitted by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(14) Authorization of the Indentures. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities or if Preferred Stock is, or
Depositary Shares represented by Preferred Stock are, convertible into Debt
Securities, each applicable Indenture 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.
(15) Authorization of Warrants. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Warrants, such
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<PAGE>
Underwritten Securities 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 Warrant Agreement and delivered against
payment of the consideration therefor specified in such Terms Agreement,
will constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by such Warrant Agreement and enforceable
against the Company in accordance with their terms, except as 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.
(16) Authorization of Warrant Agreement. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Warrants, each applicable Warrant Agreement has been, or prior to the
issuance of such Underwritten Securities 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 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.
(17) Authorization of Underlying Securities. If the Underlying
Securities related to the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Class A Common Stock, Preferred
Stock or Depositary Shares, such Underlying Securities have been, or as of
the date of such Terms Agreement will have been, duly authorized and
reserved for issuance by the Company upon exercise of the Class A Common
Stock Warrants, Preferred Stock Warrants or Depository Shares Warrants, as
applicable, or upon conversion of the related Preferred Stock, Depositary
Shares, Senior Debt Securities or Subordinated Debt Securities, as
applicable. If the Underlying Securities include Class A Common Stock or
Preferred Stock, such Underlying Securities, when issued upon such exercise
or conversion, as applicable, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights arising by operation of law, under the certificate of incorporation
and bylaws of the Company or under any agreement to which the Company or
any of its subsidiaries is a party. If the Underlying Securities include
Depositary Shares, such Underlying Securities, upon deposit by the Company
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<PAGE>
of the Preferred Stock represented thereby with the applicable Depositary
and the execution and delivery by such Depositary of the Depositary
Receipts evidencing such Depositary Shares, in each case pursuant to the
applicable Deposit Agreement, will represent legal and valid interests in
such Preferred Stock. No holder of such Class A Common Stock, Preferred
Stock or Depositary Receipts evidencing Depositary Shares will be subject
to personal liability by reason of being such a holder. If the Underlying
Securities related to the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Debt Securities, such Underlying
Securities have been, or as of the date of such Terms Agreement will have
been, duly authorized for issuance by the Company upon the exercise of the
Debt Security Warrants or upon conversion of the related Preferred Stock or
Depositary Shares, as applicable. Such Underlying Securities, when issued
and authenticated in the manner provided for in the applicable Indenture
and delivered in accordance with the terms of the Debt Security Warrants or
the related Preferred Stock or Depositary Shares, as applicable, 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.
(18) Descriptions of the Underwritten Securities, Underlying
Securities, Indentures, Deposit Agreement and Warrant Agreement. The
Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture, Deposit Agreement and Warrant
Agreement, as of the date of the Prospectus, and any Underlying Securities,
when issued and delivered in accordance with the terms of the related
Underwritten Securities, will conform in all material respects to the
description thereof 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.
(19) Absence of Defaults and Conflicts. Neither the Company nor any of
its subsidiaries is in violation of its certificate or articles of
incorporation, other charter documents, or bylaws or in default in the
performance or observance of any obligation, agreement, covenant or
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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 any of
them may be bound, or to which any of the property or assets of the Company
or any subsidiary 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,
Warrant Agreement and Deposit Agreement 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" in the
Prospectus) and compliance by the Company with its obligations hereunder
and thereunder have been duly authorized by any such necessary corporate
action as may be required 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
subsidiary 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 certificate or articles of
incorporation, other charter documents, or bylaws of the Company or any
subsidiary 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
subsidiary or any of their assets, properties or operations except such as
will not result in a Material Adverse Effect. 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
subsidiary.
(20) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any subsidiary 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
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suppliers, manufacturers, customers or contractors, which, in either case,
may reasonably be expected to result in a Material Adverse Effect.
(21) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or 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 subsidiary thereof
which is required to be disclosed in the Registration Statement and the
Prospectus (other than as stated or incorporated by reference therein or as
contemplated thereby), or which might reasonably be expected to materially
and adversely affect the consummation of this Underwriting Agreement, the
applicable Terms Agreement or any applicable Indenture, Warrant Agreement
or Deposit Agreement or the transactions contemplated herein or therein.
The aggregate of all pending legal or governmental proceedings to which
the Company or any subsidiary thereof is a party or of which any of their
respective assets, properties or operations is the subject which 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.
(22) Accuracy of Exhibits. There are no contracts or documents which
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 which have not been so described and/or filed as required.
(23) 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
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,
Warrant Agreement or Deposit Agreement, except such as have been already
obtained or as may be required under state securities laws.
(24) Possession of Intellectual Property. Except as otherwise
disclosed or incorporated by reference or contemplated in the Prospectus
and the Registration Statement, the Company and the Subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents, patent
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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
which 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.
(25) 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 except where the
failure to obtain a Governmental License would not result in a Material
Adverse Effect. The Company and its subsidiaries are in compliance with
the terms 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 which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(26) 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 or incorporated by reference in or contemplated by the Registration
Statement and the Prospectus or (B) those which do not, singly or in the
aggregate, result in a Material Adverse Effect. 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 subsidiary
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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 subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease except for such claims
as would not result in a Material Adverse Effect.
(27) Commodity Exchange Act. If the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Debt Securities or if
any related Underlying Securities include Debt Securities, as the case may
be, such Debt Securities, upon issuance, will be excluded or exempted
under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of the
Commodity Futures Trading Commission under the Commodity Exchange Act (the
"Commodity Exchange Act Regulations").
(28) 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").
(29) Environmental Laws. Except as otherwise stated or incorporated by
reference in the Registration Statement and the Prospectus and except for
such matters 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 and 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) there are no pending or, to the Company's knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand
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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 (C) 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 any Hazardous Materials or
the violation of any Environmental Laws.
(30) Compliance with Cuba Act. The Company has complied with, and is
and will be in compliance, in all material respects, with the provisions of
that certain Florida act relating to disclosure of doing business with
Cuba, codified as Section 517.075 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 subsidiary 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) Option Underwritten Securities. In addition, subject to the terms and
conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number or aggregate principal amount, as the case
may be, of the Option Underwritten Securities set forth therein at a price per
Option Underwritten Security equal to the price per Initial Underwritten
Security, less an amount equal to any dividends or distributions declared by the
Company and paid or payable on the Initial Underwritten Securities but not
payable on the Option Underwritten Securities. Such option, if granted, will
expire 30 days after the date of such Terms Agreement, and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon notice by _____________
to the Company setting forth the number or aggregate principal amount, as the
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case may be, of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten Securities. Any such time and
date of payment and delivery (each, a "Date of Delivery") shall be determined by
______________, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, unless
otherwise agreed upon by _______________ and the Company. If the option is
exercised as to all or any portion of the Option Underwritten Securities, each
of the Underwriters, severally and not jointly, will purchase that proportion of
the total number or aggregate principal amount, as the case may be, of Option
Underwritten Securities then being purchased which the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number or aggregate principal amount, as the case
may be, of Initial Underwritten Securities, subject to such adjustments as
_____________ in its sole discretion shall make to eliminate any sales or
purchases of a fractional number or aggregate principal amount, as the case may
be, of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the location specified in the
applicable Terms Agreement, or at such other place as shall be agreed upon by
____________ and the Company, at 10:00 A.M. Eastern time (7:00 A.M. Pacific
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 hereof (unless postponed in
accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by
____________ and the Company (such time and date of payment and delivery being
herein called the "Closing Time"). In addition, in the event that the
Underwriters have exercised their option, if any, to purchase any or all of the
Option Underwritten Securities, payment of the purchase price for, and delivery
of such Option Underwritten Securities, shall be made at the above-described
location, or at such other place as shall be agreed upon by _____________ and
the Company, on the relevant Date of Delivery as specified in the notice from
_____________ to the Company.
Payment shall be made to the Company by certified or official bank in
federal or other same-day funds, against delivery to _____________ for the
respective accounts of the Underwriters of the Underwritten Securities to be
purchased by them. It is understood that each Underwriter has authorized
_____________, 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. ___________, individually and not as
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representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for Underwritten Securities to be purchased by any
Underwriter whose check has not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities, certificates
for the Underwritten Securities or Depositary Receipts evidencing the Depositary
Shares, as applicable, shall be in such denominations and registered in such
names as ______________ may request in writing at least one full business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
The Underwritten Securities, certificates for the Underwritten Securities or
Depositary Receipts evidencing the Depositary Shares, as applicable, which may
be in temporary form, will be made available for examination and packaging by
_____________ in The City of New York or such other place as the Representatives
and the Company shall agree upon not later than 10:00 A.M. (Eastern time) on the
business day prior to the Closing Time or the relevant Date of Delivery, as the
case may be.
(e) Delayed Delivery Contracts. If authorized by the applicable Terms
Agreement, __________ and the other Underwriters named therein may solicit
offers to purchase Securities from the Company pursuant to delayed delivery
contracts ("Delayed Delivery Contracts") substantially in the form of Exhibit B
hereto, with such changes therein as the Company may approve. As compensation
for arranging any such Delayed Delivery Contracts, the Company will pay to
____________ at the Closing Time, for the accounts of the Underwriters, a fee
equal to that percentage of the principal amount of Securities for which Delayed
Delivery Contracts are made at the Closing Time as is specified in the
applicable Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types which will be set forth in the applicable
Prospectus. In such instance, at the Closing Time the Company will enter into
Delayed Delivery Contracts (for not less than the minimum principal amount of
Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by __________ and previously approved by
the Company as provided below, but not for an aggregate principal amount of
Securities in excess of that specified in the applicable Terms Agreement. The
Underwriters will not have any responsibility for the validity or performance of
Delayed Delivery Contracts.
_____________ will submit to the Company, at least three business days prior
to the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
principal amount of Securities to be purchased by each of them, and the Company
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will advise ______________, at least two business days prior to the Closing
Time, of the names of the institutions, if any, with which the making of Delayed
Delivery Contracts is approved by the Company and the principal amount of
Securities to be covered by each such Delayed Delivery Contract.
The principal amount of Securities agreed to be purchased by the respective
Underwriters pursuant to the applicable Terms Agreement shall be reduced by the
principal amount of Securities covered by Delayed Delivery Contracts, as to each
Underwriter as set forth in a written notice delivered by ________________ to
the Company; provided, however, that the total principal amount of Securities to
be purchased by all Underwriters shall be the total amount of Securities covered
by the applicable Terms Agreement, less the principal amount of Securities
covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. With respect to each offering of the
Underwritten Securities pursuant hereto and to a Terms Agreement, the Company
covenants with ______________ 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 Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify _______________ 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 made with
respect to the Registration Statement, the Prospectus (including any Prospectus
Supplement) or any of the documents incorporated by reference therein or
otherwise relating to the Company or such offering, (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 Rule 424 and will
take such steps as it deems necessary to ascertain promptly whether the
Prospectus transmitted for filing under Rule 424 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
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issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest practicable moment.
(b) Filing of Amendments. The Company will give _____________ notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(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 ______________ 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 _____________ or counsel for the Underwriters
shall object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to _______________ and counsel for the Underwriters, without charge, two
signed (or, if the Registration Statement is not manually signed, then two
appropriately conformed) 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 ______________, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters. If
applicable, the copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the 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.
If applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the 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
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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
reasonable 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, in
the light of the circumstances under which they were made, 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 reasonable 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 and
any related Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
_____________ 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
at the time of such request or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject at the time
of such request. In each jurisdiction in which the Underwritten Securities or
any related Underlying 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
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security holders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Reservation of Securities. If the applicable Terms Agreement specifies
that any related Underlying Securities include Class A Common Stock, Preferred
Stock and/or Depositary Shares, the Company will reserve and keep available at
all times, free of preemptive or other similar rights, a sufficient number of
shares of Class A Common Stock and/or Preferred Stock, as applicable, for the
purpose of enabling the Company to satisfy any obligations to issue such
Underlying Securities upon exercise of the related Warrants, as applicable, or
upon conversion of the Preferred Stock, Depositary Shares, Senior Debt
Securities or Subordinated Debt Securities, as applicable.
(i) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities substantially in the manner
specified in the Prospectus under "Use of Proceeds."
(j) Listing. The Company will use its best efforts to effect the listing
of the Underwritten Securities and any related Underlying Securities, prior to
the Closing Time, on any national securities exchange or quotation system if and
as specified in the applicable Terms Agreement.
(k) 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 the
Underwriters, 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, except pursuant to any then existing agreement which
requires such issuance or sale at such time.
(l) 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
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and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, the Indentures, any Deposit
Agreement, any Warrant Agreement and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Underwritten
Securities or any related Underlying Securities, (iii) the preparation, issuance
and delivery of the Underwritten Securities and any related Underlying
Securities, any certificates for the Underwritten Securities or such Underlying
Securities or Depositary Receipts evidencing the Depositary Shares, as
applicable, to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors or agents (including transfer
agents and registrars), as well as the fees and disbursements of the Trustees,
any Depositary and any Warrant Agent, and their respective counsel, (v) the
qualification of the Underwritten Securities and any related Underlying
Securities under state securities laws in accordance with the provisions of
Section 3(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 Legal Investment 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 and any related Underlying Securities,
if applicable and (viii) the fees and expenses incurred with respect to the
listing of the Underwritten Securities and any related Underlying Securities,
if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by _______________ in accordance with the provisions of Section 5 or
Section 9(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, relating to the offering contemplated by such
Terms Agreement.
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 subsidiary 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 Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
- 26 -
<PAGE>
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated 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 and any
related Underlying Securities, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance with Rule
424(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 the Closing Time, ______________
shall have received the favorable opinion, dated as of the Closing Time, of
Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C., 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 C hereto and to such further effect as
counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At the Closing Time,
________________ shall have received the favorable opinion, dated as of the
Closing Time, of Mayer, Brown & Platt, 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), (6), (7) to (14), as
applicable, (15), (16) (solely as to the information in the Prospectus under
"Description of Securities" or any caption purporting to describe any such
Securities), (22), (23) and the penultimate paragraph of Exhibit C 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 ______________. 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 the 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 or incorporated by reference 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
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<PAGE>
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and ______________ shall have received a
certificate of the Chairman and Chief Executive Officer, the President, an
Executive Vice President, or another senior officer acceptable to
______________, of the Company and of the Chief Financial Officer, Controller,
Treasurer or Assistant Treasurer of the Company, dated as of the 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 formally initiated or, to
the Company's knowledge, threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, _____________ shall have received from Deloitte &
Touche a letter dated such date, to the effect set forth in Exhibit D hereto and
to such further effect as counsel to the Underwriters may reasonably request,
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 the Closing Time, _______________ shall
have received from Deloitte & Touche a letter, dated as of the Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, 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 the Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to
______________ a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the ______________, 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
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<PAGE>
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Underwritten Securities or any
of the Company's other securities.
(h) Approval of Listing. At the 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 National Association of
Securities Dealers Inc. (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) Lock-up Agreements. On the date of the applicable Terms Agreement,
_______________ shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(k) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms Agreement and
the Underwriters exercise their option to purchase all or any portion of the
Option Underwritten Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company hereunder shall be true and correct as of each Date of Delivery, and, at
the relevant Date of Delivery, ______________ shall have received:
(1) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company and the chief financial officer or chief
accounting officer of the Company, confirming that the certificate delivered
at the Closing Time pursuant to Section 5(d) hereof remains true and correct
as of such Date of Delivery.
(2) The favorable opinion of Lowenstein, Sandler, Kohl, Fisher &
Boylan, P.C., counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(3) The favorable opinion of Mayer, Brown & Platt, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
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<PAGE>
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Deloitte & Touche, in form and substance
satisfactory to ______________ and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
_______________ pursuant to Section 5(f) hereof, except that the "specified
date" on the letter furnished pursuant to this paragraph shall be a date not
more than three business days prior to such Date of Delivery.
(l) Additional Documents. At the Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably 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 _____________ and counsel for the
Underwriters in their reasonable judgement.
(m) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by _____________ by notice to the Company at any
time at or prior to the Closing Time (or such Date of Delivery, as applicable),
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 and 7 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 Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) 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
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<PAGE>
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;
(ii) 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
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by _____________), 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 ______________ expressly for use in the Registration
Statement (or any amendment thereto), including the 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided, further, that such indemnity with respect to any
preliminary prospectus supplement shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such loss, liability, claim, damage or expense
purchased the Underwritten Securities which are the subject thereof if such
untrue statement or omission or alleged untrue statement or omission made in
such preliminary prospectus supplement is eliminated or remedied in the
Prospectus (as amended or supplemented if the Company shall have furnished any
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<PAGE>
amendments or supplements thereto) and a copy of the Prospectus (as so amended
or supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Underwritten Securities to such person,
unless such failure is the result of non-compliance by the Company with its
obligations under Section 3(d) of this Agreement.
(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 6, 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 Rule 430A Information and the Rule 434
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 ______________ 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 which 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 _______________, 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
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<PAGE>
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 in accordance with this
Agreement, 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)
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<PAGE>
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
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which 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 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'
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<PAGE>
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial 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 _______________ upon the giving of 30 days' prior written notice
of such termination to the other party hereto.
(b) Terms Agreement. ______________ may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, 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 or any related Underlying
Securities include Debt Securities 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 adverse change or development involving a prospective adverse 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
_____________, 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 New
York Stock Exchange, or if trading generally on the New York Stock Exchange or
the American Stock Exchange or in the over-the-counter market has been suspended
or limited, or minimum or maximum prices for trading have been fixed, or maximum
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<PAGE>
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 or any related
Underlying Securities include Debt Securities 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 and 7 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 or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then ______________ 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, ______________ 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 (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to sell, such
Option Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter.
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<PAGE>
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 which does not result in (i) a termination
of the applicable Terms Agreement or (ii) in the case of a Date of Delivery
after the Closing Time, a termination of the obligations of the Underwriters and
the Company with respect to the related Option Underwritten Securities, as the
case may be, either _______________ or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
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.
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 ________________ at ________ ________ ________
attention of ________ ________; and notices to the Company shall be directed to
it at 4000 Metropolitan Drive, Orange, California 92668-3510, attention of Milan
A. Sawdei, Executive Vice President, Chief Legal Officer and Secretary.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
______________ 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 UNLESS OTHERWISE SPECIFIED.
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<PAGE>
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.
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 ____________ and the Company in accordance with its terms.
Very truly yours,
BERGEN BRUNSWIG CORPORATION
By:_______________________
Name:_____________________
Title:____________________
CONFIRMED AND ACCEPTED,
as of the date first
above written:
By: __________________________
Authorized Signatory
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<PAGE>
Exhibit A
---------
BERGEN BRUNSWIG CORPORATION
(a New Jersey corporation)
TERMS AGREEMENT
---------------
To: Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, California 92668-3510
Ladies and Gentlemen:
We understand that Bergen Brunswig Corporation, a New Jersey corporation
(the "Company"), proposes to issue and sell [ shares of its Class A common
stock, par value $1.50 per share (the "Class A Common Stock")] [ shares of
its preferred stock, no par value (the "Preferred Stock")] [in the form of
depositary shares (the "Depositary Shares") each representing of a share of
Preferred Stock] [$ aggregate principal amount of its [senior]
[subordinated] debt securities (the "Debt Securities")] [ warrants (the
"Class A Common Stock Warrants") to purchase common stock, par value $1.50 per
share] [ warrants (the "Preferred Stock Warrants") to purchase
preferred stock, no par value [ warrants (the "Debt Security Warrants")
to purchase $ aggregate principal amount of [senior] [subordinated]
debt securities] [ warrants (the "Depositary Share Warrants to purchase
depositary shares and each representing a share of Preferred Stock] ([such
securities also being hereinafter referred to as] the "[Initial] 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 [[number] [principal amount] of]
Underwritten Securities [opposite their names set forth below] at the purchase
price set forth below [, and a proportionate share of Option Underwritten
Securities set forth below, to the extent any are purchased].
A-1
<PAGE>
[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
___________________________
Total [$]________________________
The Underwritten Securities shall have the following terms:
[Class A Common Stock]
--------------------
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
---------------
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $_____ plus accumulated dividends, if
any, from ___________
Purchase price per share: $_____ plus accumulated dividends, if any, from
_________
Other terms and conditions:
Closing date and location:
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[Depositary Shares]
-----------------
Title:
Fractional amount of Preferred Stock represented by each Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from _____________
Purchase price per share: $______ plus accumulated dividends, if any, from ____
Other terms and conditions:
Closing date and location:
[Debt Securities]
---------------
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering:
If Fixed Price Offering, initial public offering price per share: ____% of the
principal amount, plus accrued interest [amortized original issue discount], if
any, from ______________
Purchase price per share: ____% of principal amount, plus accrued interest
[amortized original issue discount], if any, from __________ (payable in federal
or other same-day funds).
Form:
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Other terms and conditions:
Closing date and location:
[Class A Common Stock] [Preferred Stock] [Debt Security]
[Depositary Share] Warrants
------------------------------------------------------
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Class A Common Stock] [Preferred Stock]
[Debt Securities] [Depositary Share]: [Yes] [No]
Number of [Class A Common Stock] [Preferred Stock] [Debt Security]
Warrants issued with each [share of Common Stock] [share of Preferred
Stock] [$__________ principal amount of Debt Securities]:
Date(s) from which or period(s) during which [Class A Common Stock]
[Preferred Stock] [Debt Security] [Depositary Share] Warrants are
exercisable:
Date(s) on which [Class A Common Stock] [Preferred Stock] [Debt Security]
[Depositary Share] Warrants expire:
Exercise price(s):
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
[Number of shares] [Principal amount] purchasable upon exercise of one
[Class A Common Stock] [Preferred Stock] [Debt Security] [Depositary Share]
Warrant:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "Bergen Brunswig -- Class A Common Stock, Warrants to Purchase Common
Stock, Preferred Stock, Warrants to Purchase Preferred Stock, Depositary Shares,
Warrants to Purchase Depositary Shares, Debt Securities and Warrants to Purchase
Debt Securities -- Underwriting Agreement" are hereby incorporated by reference
in their entirety herein and shall be deemed to be a part of this Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Terms defined in such document are used herein as therein defined.
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<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,
____________________
By___________________________
Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
BERGEN BRUNSWIG CORPORATION
By_________________________
Name:
Title:
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<PAGE>
EXHIBIT B
---------
BERGEN BRUNSWIG CORPORATION
(a New Jersey corporation)
DELAYED DELIVERY CONTRACT
-------------------------
Dated: ___________, 199_
Bergen Brunswig Corporation
c/o ___________________
_______________________
_______________________
Attention:_____________________
Dear Sirs:
The undersigned hereby agrees to purchase from Bergen Brunswig Corporation
(the "Company"), and the Company agrees to sell to the undersigned on , 199 ,
(the "Delivery Date"), $ principal amount of the Company's due , 199
(the "Securities"), offered by the Company's Prospectus dated
____________________, as supplemented by its Prospectus Supplement dated
_________________, receipt of which is hereby acknowledged, at a purchase price
of % of the principal amount thereof, plus accrued interest from , 199_, to
the Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in federal or other same-day funds, at the office of
___________, on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before , 199_,
shall have sold to __________ and the other Underwriters of the Securities (the
"Underwriters") such principal amount of the Securities as is to be sold to them
pursuant to the Terms Agreement dated _________, 199_ among the Company,
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<PAGE>
__________ and the other Underwriters. The obligation of the undersigned to
take delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payment for Securities
pursuant to other contracts similar to this contract. The undersigned
represents and warrants to you that its investment in the Securities is not, as
of the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery Contracts
for an aggregate principal amount of Securities in excess of $ and
that the acceptance of any Delayed Delivery Contract is in the Company's sole
discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance on a copy hereof and mail
or deliver a signed copy hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
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<PAGE>
This Agreement shall be governed by the laws of the State of New
York.
Yours very truly,
___________________________________
(Name of Purchaser)
By_________________________________
(Title)
___________________________________
___________________________________
(Address)
Accepted as of the date
first above written.
BERGEN BRUNSWIG CORPORATION
By_________________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed is as follows:
(Please print.)
Name Telephone No. (Including Area Code)
- ---- ------------
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<PAGE>
Exhibit C
---------
FORM OF OPINION OF COMPANY'S COUNSEL
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 New Jersey.
(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 with
only such exceptions as are not material to the business of the Company and its
subsidiaries considered as a whole and to enter into and perform its obligations
under, or as 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 to so qualify or
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 with only
such exceptions as are not material to the business of the Company and its
subsidiaries considered as a whole 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 or incorporated by reference 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, to the best of our knowledge and information, 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 the Subsidiaries was issued in violation
of preemptive or other similar rights arising under statutes or common law or
under any contracts or agreements known to such counsel.
(5) [Include if the Prospectus contains a "Capitalization" section--] The
authorized, issued and outstanding shares of capital stock of the Company is as
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set forth in the column entitled "Actual" under such section (except for
subsequent issuances thereof, if any, contemplated under the Underwriting
Agreement, pursuant to 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 were issued in violation of preemptive or other similar
rights arising under statutes or common law or under any contracts or agreements
known to such counsel.
(6) The Underwriting Agreement, the applicable Terms Agreement, and any
Delayed Delivery Contract have been duly authorized, executed and delivered by
the Company.
(7) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Class A Common Stock --] 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 delivered by the Company pursuant to
the Underwriting Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to preemptive or
other similar rights arising under statutes or common law or under any contracts
or agreements known to such counsel. The form of certificate used to evidence
the Underwritten Securities is in due and proper form and complies with the
applicable statutory requirements, with any applicable requirements of the
certificate of incorporation or bylaws of the Company and with the requirements
of the New York Stock Exchange.
(8) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Preferred Stock and/or Depositary Shares --]
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 applicable Preferred Stock, when issued and delivered by
the Company pursuant to the Underwriting Agreement and such Terms Agreement
against payment of the consideration [therefor] [for the related Depositary
Shares] specified in such Terms Agreement, will be validly issued, fully paid
and non-assessable and will not be subject to preemptive or other similar rights
arising under statutes or common law or under any contracts or agreements known
to such counsel. In addition, upon deposit by the Company of any Preferred
Stock represented by Depositary Shares with the applicable Depositary and the
execution and delivery by such Depositary of the Depositary Receipts evidencing
such Depositary Shares, in each case pursuant to the applicable Deposit
Agreement, such Depositary Shares will represent legal and valid interests in
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such Preferred Stock. The form of certificate used to evidence the [Preferred
Stock] [Depositary Receipts evidencing Depositary Shares] is in due and proper
form and complies with the applicable statutory requirements, with any
applicable requirements of the certificate of incorporation or bylaws of the
Company and with the requirements of the [New York Stock Exchange/Nasdaq
National Market]. The applicable Certificate of Amendment is in full force and
effect.
(9) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Depositary Shares --] The applicable Deposit
Agreement has been duly authorized, executed and delivered by the Company and
(assuming due authorization, execution and delivery by the applicable
Depositary) constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
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. Each registered holder of a
Depositary Receipt under the applicable Deposit Agreement will be entitled to
the proportional rights, preferences and limitations of the Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipt and to
such other rights as are granted to such registered holder in such Deposit
Agreement.
(10) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or Subordinated
Debt Securities --] 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 in
foreign currencies or composite currencies or payments outside the United
States. The Underwritten Securities are in a form permitted by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
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(11) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities, Subordinated Debt
Securities and/or LYONs or if Preferred Stock is, or Depositary Shares
represented by Preferred Stock are, convertible into Debt Securities --] [The]
[Each] applicable Indenture has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery thereof by
the applicable Trustee) constitutes 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, and except
further as rights to indemnification may be limited under Federal or State
securities laws or by considerations of public policy.
(12) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Warrants --] 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 Warrant Agreement and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided by such
Warrant Agreement and enforceable against the Company in accordance with their
terms, except as 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.
(13) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Warrants --] [The] [Each] applicable Warrant
Agreement has been duly authorized, executed and delivered by the Company and
(assuming due authorization, execution and delivery thereof by the applicable
Warrant Agent) constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
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.
(14) [Include if the Underlying Securities related to the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include Class A
Common Stock, Preferred Stock or Depositary Shares --] The Underlying Securities
have been duly authorized and reserved for issuance by the Company [upon
exercise of the [Class A Common Stock] [Preferred Stock] Warrants] [upon
conversion of the related [Preferred Stock] [Depositary Shares] [Senior Debt
Securities] [Subordinated Debt Securities]]. The Underlying Securities, when
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issued upon such [exercise] [conversion], will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar rights
arising under statutes or common law or under any contracts or agreements known
to such counsel. [In addition, the Underlying Securities, upon deposit by the
Company of the Preferred Stock represented thereby with the applicable
Depositary and the execution and delivery by such Depositary of the Depositary
Receipts evidencing such Underlying Securities, in each case pursuant to the
applicable Deposit Agreement, will represent legal and valid interests in such
Preferred Stock.] [Include if the Underlying Securities related to the
Underwritten Securities being sold pursuant to the applicable Terms Agreement
include Senior Debt Securities and/or Subordinated Debt Securities --] The
Underlying Securities have been duly authorized for issuance by the Company
[upon exercise of the Debt Security Warrants] [upon conversion of the related
[Preferred Stock] [Depositary Shares]]. The Underlying Securities, when issued
and authenticated in the manner provided for in the applicable Indenture and
delivered in accordance with the terms of the [Debt Security Warrants [related
[Preferred Stock] [Depositary Shares]], 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.
(15) The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and [the] [each] applicable [Indenture] [Deposit Agreement] [Warrant
Agreement] conform, and any Underlying Securities, 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 are in substantially the form filed or incorporated by reference,
as the case may be, as an exhibit to the Registration Statement.
(16) The information in the Prospectus under "Description of Securities," or
any caption purporting to describe any such Securities, [and "Certain Federal
Income Tax Considerations"], to the extent that it constitutes matters of law,
summaries of legal matters, the Company's certificate of incorporation and
bylaws or legal proceedings, or legal conclusions, has been reviewed by them and
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<PAGE>
is correct in all material respects [Include the following if the Prospectus
includes a tax opinion --] and our opinion set forth under "Certain Federal
Income Tax Considerations" is confirmed].
(17) To the best of our knowledge and information, neither the Company nor
any of the Subsidiaries is in violation of its certificate or articles of
incorporation, other charter documents, or bylaws 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 with only such exceptions as are not material to the
business of the Company and its subsidiaries considered as a whole.
(18) The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and [the] [each] applicable [Indenture] [Warrant
Agreement] [Deposit Agreement] 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 in the Registration Statement and the Prospectus
and the consummation of the transactions contemplated in the Underwriting
Agreement and such Terms Agreement 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 thereunder 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 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 assets, properties
or operations of the Company or any Subsidiary is subject, 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 certificate or articles of incorporation,
other charter documents, or bylaws 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
assets, properties or operations, except for such violations as are not material
to the Company and its subsidiaries taken as a whole.
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(19) To the best of our knowledge and information, there is no action, suit,
proceeding, inquiry or investigation before or by any court or governmental
agency or body, domestic or foreign, now pending or threatened, against or
affecting the Company or any subsidiary thereof which is required to be
disclosed in the Registration Statement and the Prospectus (other than as stated
or incorporated by reference therein or as contemplated thereby), or which might
reasonably be expected to materially and adversely affect the consummation of
the Underwriting Agreement, the applicable Terms Agreement or [the] [any]
applicable [Indenture] [Warrant Agreement] [Deposit Agreement] or the
transactions contemplated therein.
(20) All descriptions in the Prospectus 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 and information, 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.
(21) To the best of our knowledge and information, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(22) The 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). To the
best of our knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission.
(23) The Registration Statement, [the Rule 430A Information,] [the Rule 434
Information,] 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,
including the notes thereto, and supporting schedules included therein and each
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1s"), as to which no
opinion need be rendered) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(24) The documents incorporated by reference in the Prospectus (other than
the financial statements, including the notes thereto, and supporting
schedules therein, as to which no opinion need be rendered), when they
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became effective or] were filed with the Commission , as the case may be,]
complied as to form in all material respects with the requirements of [the
1933 Act or] the 1934 Act, as applicable, and the rules and regulations of
the Commission thereunder.
(25) No filing with, or authorization, approval, consent, license, order
registration, qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of its
obligations under the Underwriting Agreement or the applicable Terms Agreement
or in connection with the transactions contemplated under the Underwriting
Agreement, such Terms Agreement or the [any] applicable [Indenture] [Warrant
Agreement] [Deposit Agreement] other than under the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations, which have been
obtained, or as may be required under state securities or blue sky laws.
(26) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Debt Securities or if any related Underlying
Securities include Debt Securities --] The [Underwritten] [Underlying]
Securities, upon issuance, will be excluded or exempted under, or beyond the
purview of, the Commodity Exchange Act, as amended (the "Commodity Exchange
Act"), and the rules and regulations of the Commodity Futures Trading Commission
under the Commodity Exchange Act (the "Commodity Exchange Act Regulations").
(27) The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
Nothing has come to our attention that would lead us to believe that the
Registration Statement (except for financial statements and schedules and other
financial data included therein and for the Form T-1s, as to which we make no
statement), at the time Registration Statement or any post-effective amendment
thereto (including the filing of the Company's Annual Report on Form 10-K with
the Commission) 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, including the notes
thereto, and schedules and other financial data included therein as to which we
make no statement), at the time the Prospectus was issued (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Representatives by the Company for use in connection with the offering of the
Underwritten Securities which differs from the Prospectus on file at the
Commission at the Representation Date, in which case, at the time it is provided
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to the Representatives for such use) 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 (A) as to matters involving
the application of the laws of jurisdictions other than New Jersey upon the
opinion of special counsel to the Company, (which opinion or opinions shall be
dated and furnished to ______________ at the Closing Time, shall be satisfactory
in form and substance to counsel for the Underwriters and shall expressly state
that the Underwriters may rely on such opinion as if it were addressed to them),
provided, that Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C. shall state in
their opinion that they believe that they and the Underwriters are justified in
relying upon such opinion, and (B) 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).
C-9
<PAGE>
Exhibit D
---------
FORM OF ACCOUNTANTS' COMFORT LETTER
PURSUANT TO SECTION 5(e)
[We are independent public accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the applicable published
1933 Act Regulations.]
(i) in our opinion, the audited financial statements [and the related
financial statement schedules] included or incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in accordance
with generally accepted auditing standards) consisting of a reading of the
unaudited interim [consolidated] financial statements of the Company for the
[three month periods ended _________, 19__ and ________, 19__, the three and
six month periods ended _________, 19__ and ________, 19__, and the three
and nine month periods ended _________, 19__ and ________, 19__ included or
incorporated by reference in the Registration Statement and the Prospectus
(collectively, the "10-Q Financials")]1/ [, a reading of the unaudited
interim [consolidated] financial statements of the Company for the
____-month periods ended ____________, 19__ and ____________, 19__, included
in the Registration Statement and the Prospectus (the ___-month financials"
)]2/ [, a reading of the latest available unaudited interim [consolidated]
financial statements of Company],3/ a reading of the minutes of all meetings
of the stockholders and directors the Company and its subsidiaries and the
Committees of the Company's Board of Directors [and any subsidiary
committees] since [day after end of last audited period], inquiries of
certain officials of the Company and its subsidiaries responsible for
financial and accounting matters, a review of interim financial information
in accordance with standards established by the American Institute of
Certified Public Accountants in Statement on Auditing Standards No. 71,
- ----------------------
[FN]
1/ Include the appropriate dates of the 10-Q Financials.
2/ Include if non-10-Q interim financial statements are included in
the Registration Statement and the Prospectus.
3/ Include if the most recent unaudited financial statements are not
included in the Registration Statement and the Prospectus.
D-1
<PAGE>
Interim Financial Information ("SAS 71"), with respect to the [description
of relevant periods]4/ and such other inquiries and procedures as may be
specified in such letter, nothing came to our attention that caused us to
believe that:
[(A) the 10-Q Financials incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and
1934 Act Regulations applicable to unaudited financial statements included
in Form 10-Q or any material modifications should be made to the 10-Q
Financials incorporated by reference in the Registration Statement and the
Prospectus for them to be in conformity with generally accepted accounting
principles;]5/
[( ) the __________-month financials included in the Registration
Statement and the Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the 1933 Act and the
1933 Act Regulations applicable to unaudited interim financial statements
included in registration statements or any material modifications should be
made to the ________-month financials included in the Registration Statement
and the Prospectus for them to be in conformity with generally accepted
accounting principles;]6/
- ---------------------------------
[FN]
4/ The relevant periods include the periods covered by all interim
unaudited condensed consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus.
5/ Include if the 10-Q Financials are incorporated by reference in
the Registration Statement and the Prospectus.
6/ Include if unaudited financial statements, not just selected
unaudited data, are included in the Registration Statement and
the Prospectus.
Annex I-2
<PAGE>
[( ) at [____________, 19__ and at]7/ a specified date not more than
five days8/ prior to the date of the applicable Terms Agreement, there was
any change in the _______________ of the Company and its subsidiaries or any
decrease in the _______________ of the Company and its subsidiaries or any
increase in the _______________ of the Company and its subsidiaries, in each
case as compared with amounts shown in the latest balance sheet included in
the Registration Statement and the Prospectus, except in each case for
changes, decreases or increases that the Registration Statement and the
Prospectus disclose have occurred or may occur; or
( ) [for the period from ______________, 19__ to ____________, 19__
and]9/ for the period from ___________, 19__ to a specified date not more
than five days prior to the date of the applicable Terms Agreement, there
was any decrease in __________, _____________ or _________________, in each
case as compared with the comparable period in the preceding year, except in
each case for any decreases that the Registration Statement and the
Prospectus discloses have occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above and a
reading of the [Selected Financial Data] included in the Registration Statement
and the Prospectus [and a reading of the financial statements from which such
- --------------------------
[FN]
7/ Include, and insert the date of most recent balance sheet of the
Company, if those statements are more recent than the unaudited
financial statements included in the Registration Statement and
the Prospectus.
8/ According to Example A of SAS No. 72, the specified date should
be five calendar days prior to the date of the applicable Terms
Agreement.
9/ Include, and insert dates to describe the period from the date of
the most recent financial statements in the Registration
Statement and the Prospectus to the date of the most recent
unaudited financial statements of the Company, if those dates are
different. Regardless of whether this language is inserted or
not, the period including five days prior to the date of the
applicable Terms Agreement should run from the date of the last
financial statement included in the Registration Statement and
the Prospectus, not from the later one that is not included in
the Registration Statement and the Prospectus.
Annex I-3
<PAGE>
data were derived],10/ nothing came to our attention that caused us to believe
that the [Selected Financial Data] included in the Registration Statement an the
Prospectus do not comply as to form in all material respects with the disclosure
requirements of Item 301 of Regulation S-K of the 1933 Act [, that the amounts
included in the [Selected Financial Data] are not in agreement with the
corresponding amounts in the audited [consolidated] financial statements for the
respective periods or that the financial statements not included in the
Registration Statement and the Prospectus from which certain of such data were
derived are not in conformity with generally accepted accounting principles];
(iv) we have compared the information in the Registration Statement and the
Prospectus under selected captions with the disclosure requirements of
Regulation S-K of the 1933 Act and on the basis of limited procedures specified
herein. Nothing came to our attention that caused us to believe that this
information does not comply as to form in all material respects with the
disclosure requirements of Items 302, 402 and 503(d), respectively, of
Regulation S-K;
[(v) based upon the procedures set forth in clause (ii) above, a reading of
the unaudited financial statements of the Company for [the most recent period]
that have not been included in the Registration Statement and the Prospectus and
a review of such financial statements in accordance with SAS 71, nothing came to
our attention that caused us to believe that the unaudited amounts for
_________________ for the [most recent period] do not agree with the amounts set
forth in the unaudited consolidated financial statements for those periods or
that such unaudited amounts were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited [consolidated]
financial statements;]11/
- ------------------------------
[FN]
10/ Include only if there are selected financial data that have been
derived from financial statements not included in the
Registration Statement and the Prospectus.
11/ This language should be included when the Registration Statement
and the Prospectus include earnings or other data for a period
after the date of the latest financial statements in the
Registration Statement and the Prospectus, but the unaudited
interim financial statements from which the earnings or other
data is derived is not included in the Registration Statement and
the Prospectus. The blank should be filled in with a description
of the financial statement item(s) included.
Annex I-4
<PAGE>
[(vi)] we are unable to and do not express any opinion on the [Pro Forma
Combining Statement of Operations] (the "Pro Forma Statement") included the
Registration Statement and the Prospectus or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statement; however,
for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed [an audit] [a review in accordance with SAS 71] of the
financial statements to which the pro forma adjustments were applied;
(C) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis for
their determination of the pro forma adjustments and whether the Pro Forma
Statement complies as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the Pro Forma Statement; and on the
basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe
that the Pro Forma Statement included in the Registration Statement does not
comply as to form in all material respects with the applicable requirements
of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of those
statements; and
[(vii)] in addition to the procedures referred to in clause (ii) above, we
have performed other procedures, not constituting an audit, with respect to
certain amounts, percentages, numerical data and financial information appearing
in the Registration Statement and the Prospectus, which are specified herein,
and have compared certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the Company; and
[(viii)] In addition, we [comfort on a financial forecast that is included
in the Registration Statement and the Prospectus].
Annex I-5
EXHIBIT 4.4
BERGEN BRUNSWIG CORPORATION
TO
CHEMICAL TRUST COMPANY OF CALIFORNIA,
as Trustee
__________________________
Indenture
Dated as of March 1, 1996
__________________________
Senior Debt Securities
<PAGE>
<TABLE>
<CAPTION>
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
------- ---------
<S> <C>
310 (a)(1) ............................................... 6.09
(a)(2) ............................................... 6.09
(a)(3) ............................................... N.A.
(a)(4) ............................................... N.A.
(a)(5) ............................................... 6.09
(b) ............................................... 6.08
(c) ............................................... N.A.
311 (a) ............................................... 6.13
(b) ............................................... 6.13
(c) ............................................... N.A.
312 (a) ............................................... 7.01, 7.02
(b) ............................................... 7.02
(c) ............................................... 7.02
313 (a) ............................................... 7.03
(b) ............................................... 7.03
(c) ............................................... 7.03
(d) ............................................... 7.03
314 (a) ............................................... 7.04, 10.06
(b) ............................................... N.A.
(c)(1) ............................................... 1.02
(c)(2) ............................................... 1.02
(c)(3) ............................................... N.A.
(d) ............................................... N.A.
(e) ............................................... 1.02
315 (a) ............................................... 6.01 (a)
(b) ............................................... 6.02, 7.03
(c) ............................................... 6.01 (b)
(d) ............................................... 6.01 (c)
(e) ............................................... 5.14
316 (a)(last sentence) .................................... 1.01 ("outstanding")
(a)(1)(A) ............................................. 5.12
(a)(1)(B) ............................................. 5.13
(a)(2) ............................................... N.A.
(b) ............................................... 5.08
(c) ............................................... 1.04
317 (a)(1) ............................................... 5.03
(a)(2) ............................................... 5.04
(b) ............................................... 10.03
318 (a) ............................................... 1.07
- ------------------------
<FN>
1 This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture, N.A. means Not Applicable.
</TABLE>
- ii -
<PAGE>
TABLE OF CONTENTS(1)
PAGE
----
PARTIES................................................................ 1
RECITALS OF THE COMPANY................................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01.......................................................... 1
Definitions:
Act............................................................... 2
Affiliate; control................................................ 2
Authenticating Agent.............................................. 2
Authorized Newspaper.............................................. 2
Bearer Security................................................... 2
Board of Directors; Board......................................... 3
Board Resolution.................................................. 3
Business Day...................................................... 3
Capital Stock..................................................... 3
CEDEL; CEDEL SA................................................... 3
Closing Price..................................................... 3
Commission........................................................ 3
Common Stock...................................................... 4
Company........................................................... 4
Company Request; Company Order.................................... 4
Component Currency................................................ 4
Conversion Date................................................... 4
Conversion Event.................................................. 4
Corporate Trust Office............................................ 4
corporation....................................................... 4
coupon............................................................ 4
Covenant Defeasance............................................... 4
Curreny; currency................................................. 4
Defaulted Interest................................................ 4
Defeasance........................................................ 4
Defeasible Series................................................. 4
Depositary........................................................ 5
Designated Currency............................................... 5
Dollar; $......................................................... 5
Dollar Equivalent................................................. 5
ECU............................................................... 5
Election Date..................................................... 5
Euroclear......................................................... 5
European Communities.............................................. 5
- --------------
[FN]
(1) This table of contents shall not, for any purpose, be deemed to
be a part of the Indenture.
- iii -
<PAGE>
PAGE
----
European Monetary System.......................................... 5
Event of Default.................................................. 5
Exchange Act...................................................... 5
Exchange Date..................................................... 5
Exchange Rate Agent............................................... 5
Exchange Rate Officer's Certificate............................... 5
Foreign Currency.................................................. 6
Global Security................................................... 6
Holder............................................................ 6
Indenture......................................................... 6
Indexed Security.................................................. 6
interest.......................................................... 6
Interest Payment Date............................................. 6
Long Term Debt.................................................... 6
Market Exchange Rate.............................................. 6
Maturity.......................................................... 7
non-electing share................................................ 7
Notice of Default................................................. 7
Officers' Certificate............................................. 7
Opinion of Counsel................................................ 7
Original Issue Discount Security.................................. 7
Outstanding....................................................... 7
Paying Agent...................................................... 9
Person............................................................ 9
Place of Payment.................................................. 9
Predecessor Security.............................................. 9
Redemption Date................................................... 9
Redemption Price.................................................. 9
Reference Date.................................................... 9
Registered Security............................................... 9
Regular Record Date............................................... 9
Remarketing Entity................................................ 9
Repayment Date.................................................... 9
Repayment Price................................................... 9
Responsible Officer............................................... 10
Securities........................................................ 10
Security Register; Security Registrar............................. 10
Special Record Date............................................... 10
Specified Amount.................................................. 10
Stated Maturity................................................... 10
Subsidiary........................................................ 10
Trading Day....................................................... 10
Trigger Event..................................................... 10
Trustee........................................................... 10
Trust Indenture Act; TIA.......................................... 10
United States..................................................... 10
United States Alien............................................... 11
U.S. Government Obligations....................................... 11
Valuation Date.................................................... 11
Vice President.................................................... 11
SECTION 1.02. Compliance Certificates and Opinions................... 11
SECTION 1.03. Form of Documents Delivered to Trustee................. 12
- iv -
<PAGE>
PAGE
----
SECTION 1.04. Acts of Holders; Record Dates.......................... 12
SECTION 1.05. Notices, Etc., to Trustee and Company.................. 14
SECTION 1.06. Notice to Holders; Waiver.............................. 14
SECTION 1.07. Conflict with Trust Indenture Act...................... 16
SECTION 1.08. Effect of Headings and Table of Contents............... 16
SECTION 1.09. Successors and Assigns................................. 16
SECTION 1.10. Separability Clause.................................... 16
SECTION 1.11. Benefits of Indenture.................................. 16
SECTION 1.12. Governing Law.......................................... 16
SECTION 1.13. Legal Holidays......................................... 16
SECTION 1.14. Counterparts........................................... 17
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally........................................ 17
SECTION 2.02. Form of Trustee's Certificate of Authentication........ 17
SECTION 2.03. Securities Issuable in Global Form..................... 18
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series................... 19
SECTION 3.02. Denominations.......................................... 22
SECTION 3.03. Execution, Authentication, Delivery and Dating......... 22
SECTION 3.04. Temporary Securities................................... 25
SECTION 3.05. Registration, Registration of Transfer and Exchange.... 27
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities....... 30
SECTION 3.07. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset................................ 31
SECTION 3.08. Optional Extension of Maturity......................... 34
SECTION 3.09. Persons Deemed Owners.................................. 35
SECTION 3.10. Cancellation........................................... 36
SECTION 3.11. Computation of Interest................................ 36
SECTION 3.12. Currency and Manner of Payments in Respect of
Securities............................................. 36
SECTION 3.13. Appointment and Resignation of Successor Exchange
Rate Agent............................................. 40
SECTION 3.14. CUSIP Numbers.......................................... 40
SECTION 3.15. Certification by a Person Entitled to Delivery of
Bearer Security........................................ 41
SECTION 3.16. Judgments.............................................. 41
SECTION 3.17 Medium Term Securities................................. 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture................ 42
SECTION 4.02. Application of Trust Money............................. 43
- v -
<PAGE>
PAGE
----
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default...................................... 44
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment..... 45
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................. 46
SECTION 5.04. Trustee May File Proofs of Claim....................... 47
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities or Coupons.................................. 48
SECTION 5.06. Application of Money Collected......................... 48
SECTION 5.07. Limitation on Suits.................................... 49
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................... 50
SECTION 5.09. Restoration of Rights and Remedies..................... 50
SECTION 5.10. Rights and Remedies Cumulative......................... 50
SECTION 5.11. Delay or Omission Not Waiver........................... 50
SECTION 5.12. Control by Holders..................................... 50
SECTION 5.13. Waiver of Past Defaults................................ 50
SECTION 5.14. Undertaking for Costs.................................. 50
SECTION 5.15. Waiver of Usury, Stay or Extension Laws................ 52
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.................... 52
SECTION 6.02. Notice of Defaults..................................... 53
SECTION 6.03. Certain Rights of Trustee.............................. 54
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities. 55
SECTION 6.05. May Hold Securities.................................... 55
SECTION 6.06. Money Held in Trust.................................... 55
SECTION 6.07. Compensation and Reimbursement......................... 55
SECTION 6.08. Disqualification; Conflicting Interests................ 56
SECTION 6.09. Corporate Trustee Required; Eligibility................ 57
SECTION 6.10. Resignation and Removal; Appointment of Successor...... 57
SECTION 6.11. Acceptance of Appointment by Successor................. 59
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business............................................ 60
SECTION 6.13. Preferential Collection of Claims Against Company...... 60
SECTION 6.14. Appointment of Authenticating Agent.................... 61
- vi -
<PAGE>
PAGE
----
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders............................................. 62
SECTION 7.02. Preservation of Information; Communications to Holders. 63
SECTION 7.03. Reports by Trustee..................................... 63
SECTION 7.04. Reports by Company..................................... 63
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms... 64
SECTION 8.02. Successor Person Substituted........................... 64
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders...... 65
SECTION 9.02. Supplemental Indentures with Consent of Holders......... 66
SECTION 9.03. Execution of Supplemental Indentures.................... 67
SECTION 9.04. Effect of Supplemental Indentures....................... 68
SECTION 9.05. Conformity with Trust Indenture Act..................... 68
SECTION 9.06. Reference in Securities to Supplemental Indentures...... 68
SECTION 9.07 Notice of Supplemental Indenture........................ 68
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.............. 68
SECTION 10.02. Maintenance of Office or Agency......................... 69
SECTION 10.03. Money for Securities Payments to Be Held in Trust....... 70
SECTION 10.04. Purchase of Securities by Company or Subsidiary......... 71
SECTION 10.05. Payment of Additional Amounts........................... 71
SECTION 10.06. Statement by Officers as to Default..................... 72
SECTION 10.07. Existence............................................... 72
- vii -
<PAGE>
PAGE
----
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article................................ 72
SECTION 11.02. Election to Redeem; Notice to Trustee................... 73
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed....... 73
SECTION 11.04. Notice of Redemption.................................... 74
SECTION 11.05. Deposit of Redemption Price............................. 75
SECTION 11.06. Securities Payable on Redemption Date................... 75
SECTION 11.07. Securities Redeemed in Part............................. 76
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article................................ 76
SECTION 12.02. Provisions with Respect to any Sinking Funds............ 77
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.01. Applicability of Article................................ 78
SECTION 13.02. Repayment of Securities................................. 78
SECTION 13.03. Exercise of Option; Notice.............................. 78
SECTION 13.04. Election of Repayment by Remarketing Entities........... 79
SECTION 13.05. Securities Payable on the Repayment Date................ 79
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.01. Purposes for Which Meetings May Be Called............... 80
SECTION 14.02. Call, Notice and Place of Meetings...................... 80
SECTION 14.03. Persons Entitled to Vote at Meetings.................... 80
SECTION 14.04. Quorum; Action.......................................... 81
SECTION 14.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings............................................. 81
SECTION 14.06. Counting Votes and Recording Action of Meetings......... 82
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Company's Option to Effect Defeasance or
Covenant Defeasance..................................... 83
SECTION 15.02. Defeasance and Discharge................................ 83
- viii -
<PAGE>
PAGE
----
SECTION 15.03. Covenant Defeasance..................................... 84
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance......... 84
SECTION 15.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions........... 85
SECTION 15.06. Reinstatement........................................... 86
ARTICLE SIXTEEN
CONVERSION OF SECURITIES
SECTION 16.01. Conversion Privilege and Conversion Price............... 87
SECTION 16.02. Exercise of Conversion Privilege........................ 88
SECTION 16.03. Fractions of Shares..................................... 88
SECTION 16.04. Adjustment of Conversion Price.......................... 89
SECTION 16.05. Notice of Adjustments of Conversion Price............... 92
SECTION 16.06. Notice of Certain Corporate Action...................... 93
SECTION 16.07. Company to Reserve Common Stock......................... 93
SECTION 16.08. Taxes on Conversions.................................... 93
SECTION 16.09. Covenant as to Common Stock............................. 94
SECTION 16.10. Cancellation of Converted Securities, etc............... 94
SECTION 16.11. Provision in the Case of Consolidation, Merger
or Sales of Assets...................................... 94
SECTION 16.12. Trustee's Adjustment Disclaimer......................... 95
TESTIMONIUM............................................................ 95
SIGNATURES AND SEALS................................................... 95
ACKNOWLEDGMENTS........................................................ 96
FORMS OF CERTIFICATION................................................. A-1-1
- ix -
<PAGE>
THIS INDENTURE, dated as of March 1, 1996, is between BERGEN BRUNSWIG
CORPORATION, a New Jersey corporation having offices at 4000 Metropolitan Drive,
Orange, California 92668-3510(herein called the "Company"), and CHEMICAL TRUST
COMPANY OF CALIFORNIA, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its debentures, notes or other
evidences of indebtedness (herein called the "Securities"), to be issued in one
or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of one or more series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
-----------
For all purposes of this Indenture and of any indenture supplemental hereto,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, or by
Commission rule or regulation under the TIA, either directly or by reference
therein, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05, have the meanings assigned to them
therein; the terms "cash transaction" and "self-liquidating" paper, as used
in TIA Section 311, shall have the meanings assigned to them in the rules of
the Commission adopted under the TIA; and the following TIA terms used in
this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means the Holder;
"indenture to be qualified" means this Indenture;
- 1 -
<PAGE>
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such computation;
(4) the words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain other terms are defined elsewhere herein.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, partnerships or other
ownership interests, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section 2.01
which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Security in global bearer form.
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"Board of Directors" or "Board" means either the board of directors of the
Company or any duly authorized committee of such board or any committee of
officers of the Company acting pursuant to authority granted by such board or
any committee of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms
thereof), such action may be taken by any committee of the Board of Directors or
the Company or any officer or employee of the Company authorized to take such
action by a Board Resolution.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock" for any corporation means any and all shares, interest,
rights to purchase, warrants, options, participants or other equivalents of or
interests (however designated) in stock issued by that corporation.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
S.A., or its successor.
"Closing Price" for any day means the last reported sale price of the Common
Stock regular way on such day or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked prices regular way
on such day, in either case on the New York Exchange or, if the Common Stock is
not listed or admitted to trading on such exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange, on
the NASDAQ National Market System or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System, the average of the closing bid and asked prices in the
over-the- counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose. If the Common Stock
is not listed or admitted to trading on any national securities exchange, quoted
on such National Market System or listed in any list of bid and asked prices in
the over-the-counter market, "Closing Price" shall mean the fair market value of
the Common Stock as determined in good faith by the Board of Directors.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
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"Common Stock" shall mean the Class A Common Stock, par value $1.50 per
share, of the Company as it exists on the date of this Indenture or any other
shares of Capital Stock of the Company into which such Class A Common Stock
shall be reclassified or changed.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person. The foregoing sentence shall likewise apply to any
subsequent such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 3.12(h).
"Conversion Date" has the meaning specified in Section 3.12(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency both
by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee in San Francisco,
California at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 50 California
Street, San Francisco, California 94111.
"corporation" means a corporation, association, company, joint stock company
or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 15.03.
"Currency" or "currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 15.02.
"Defeasible Series" has the meaning specified in Section 15.01.
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"Depositary" means, with respect to the Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.01 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Designated Currency" has the meaning specified in Section 3.16.
"Dollar" or "$" means a dollar or other equivalent within the coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"Dollar Equivalent" has the meanings specified in paragraphs (f) and (g) of
Section 3.12.
"Election Date" has the meaning specified in Section 3.12(h).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means Morgan Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established by
the Resolution of December 5, 1978 of the Council of the European Communities.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor thereto, and the rules and regulations
promulgated thereunder.
"Exchange Date" shall have the meaning specified in Section 3.04(b).
"Exchange Rate Agent" shall mean the person designated pursuant to Section
3.01(17).
"Exchange Rate Officer's Certificate", means a certificate setting forth the
applicable Market Exchange Rate or applicable bid quotation and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest, if any, on Securities denominated in ECU and
other composite Currency or Foreign Currency, and signed by the Chairman of the
Board, the President, any Vice President, the Treasurer or any Assistant
Treasurer of the Company or the Exchange Rate Agent appointed pursuant to
Section 3.01, and delivered to the Trustee.
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"Foreign Currency" means any Currency, including, without limitation, the
ECU issued by the government of one or more countries other than the United
States or by any recognized confederation or association of such governments.
"Global Security" means a Security evidencing all or part of a series of
Securities, authenticated and delivered to the Depositary for such series or its
nominee, and registered in the name of such Depositary or nominee, in accordance
with Section 3.03.
"Holder" means, with respect to a Registered Security, a Person in whose
name a Registered Security is registered in the Security Register and, with
respect to a Bearer Security, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 3.01.
"Indexed Security" means a Security as to which all or certain interest
payments and/or the principal amount payable at Maturity are determined by
reference to prices, changes in prices, or differences between prices, or
securities or Currencies as specified pursuant to Section 3.01 hereof.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security, and, when used
with respect to a Security which provides for the payment of additional amounts
pursuant to Section 10.05, includes such additional amounts.
"Long Term Debt" means, indebtedness of the Company or its Subsidiaries
classified as long-term debt under generally accepted accounting principles.
"Market Exchange Rate" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, (i) for any conversion involving a Currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
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could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case as
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 3.01, in the event of the unavailability
of any of the exchange rates provided for in the foregoing clauses (i), (ii)
and (iii), the Exchange Rate Agent shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of
New York as of the most recent available date, or quotations from one or more
major banks in New York City, London or other principal market for such
currency or currency unit in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange
Rate Agent, if there is more than one market for dealing in any currency or
currency unit by reason of foreign exchange regulations or otherwise, the
market to be used in respect of such currency or currency unit shall be that
upon which a nonresident issuer of securities designated in such currency or
currency unit would purchase such currency or currency unit in order to make
payments in respect of such securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether on a Repayment Date, at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"non-electing share" shall have the meaning specified in Section 16.11.
"Notice of Default" means a written notice of the kind specified in Section
5.01(4) or 5.01(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or any Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or any Assistant Secretary, of the Company, and
delivered to the Trustee, which shall comply with Section 1.02 to the extent
applicable.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company, and who shall be acceptable to the
Trustee, which shall comply with Section 1.02 to the extent applicable.
"Original Issue Discount Security" means any (i) Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02 and
(ii) other Security deemed an original issue discount security for United
States federal income tax purposes.
"Outstanding", when used with respect to Securities of a particular series,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(1) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(2) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
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in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities in accordance with Section 4.01; provided
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) such Securities as to which Defeasance has been effected pursuant
to Section 15.02 or 15.03; and
(4) such Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a Person in whose hands
such Securities are legal, valid and binding obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (A) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, (B) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such Security is
originally issued by the Company as set forth in an Exchange Rate Officer's
Certificate delivered to the Trustee, of the principal amount (or in the case of
an Original Issue Discount Security or Indexed Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in
clause (A) above or (C) below, respectively) of such Security, (C) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such purpose shall
be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 3.01, and (D) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (or any premium) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Sections 3.01 and 10.02, or if no such place shall be specified, at the offices
of the Paying Agent.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Date" shall have the meaning specified in Section 16.04(4).
"Registered Security", means any Security in the form of Registered
Securities established pursuant to Section 2.01 which is registered in the
Security Register.
"Regular Record Date", for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Remarketing Entity", when used with respect to Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of an option for repayment by the Holder, means the date fixed for such
repayment.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of an option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
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"Responsible Officer" means the President or any Vice President, Assistant
Vice President or Trust Officer of the Trustee to whom any matter has been
referred because of such officer's knowledge and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section 3.12(h).
"Stated Maturity", when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as amended in
accordance with the terms hereof.
"Subsidiary" shall mean (i) a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries, or (ii) a partnership in which the Company or a Subsidiary of the
Company is at the date of determination, a general partner of such partnership,
or (iii) any other Person (other than a corporation or a partnership) in which
the Company, a Subsidiary of the Company or the Company and one or more
Subsidiaries of the Company, directly or indirectly, at the date of
determination, has (x) at least a majority ownership interest or (y) the power
to elect or direct the election of a majority of the directors or other
governing body of such Person. For the purposes of this definition, the term
"voting stock" means stock having ordinary voting power for the election of
directors irrespective of whether or not stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency.
"Trading Day" means, with respect to the Common Stock, each Monday, Tuesday,
Wednesday, Thursday and Friday, other than any day on which securities are not
traded on the exchange or market on which the Common Stock is traded.
"Trigger Event" shall have the meaning specified in Section 16.04(7).
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean each Trustee with respect to Securities of that series.
"Trust Indenture Act", or "TIA", means the Trust Indenture Act of 1939 and
the rules and regulations promulgated thereunder as in force at the date as of
which this instrument was executed, except as provided in Section 9.05;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" or "TIA" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended and the rules
and regulations promulgated thereunder.
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"United States" means the United States of America (including the District
of Columbia) and its possessions and territories and other areas subject to its
jurisdiction (including the Commonwealth of Puerto Rico).
"United States Alien" means any Person who, for United States Federal income
tax purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Valuation Date" has the meaning specified in Section 3.12(c).
"Vice President", when used with respect to the Company or the Trustee,
means any elected vice president, whether or not designated by a word or words
added before the title "Vice President".
SECTION 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture (other than delivery of any
Security to the Trustee for authentication pursuant to Section 3.03), the
Company shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture. In the case of any such application
or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, however, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 10.06)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
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(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable in whole or in
part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities duly
called and held in accordance with the provisions of Article Fourteen, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are received by the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 14.06.
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<PAGE>
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness to such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(b) The ownership of Registered Securities shall be proved by the Security
Register.
(c) The ownership, principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), if such record date is fixed by Board Resolution, such record date shall
be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. In the event no such record date is fixed
- 13 -
<PAGE>
by Board Resolution, such record date shall be the later of 10 days prior to the
first solicitation of such action or the date of the most recent list of Holders
furnished to the Trustee pursuant to Section 7.01. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date, and that no such authorization, agreement or
consent may be amended, withdrawn or revoked once given by a Holder, unless the
Company shall provide for such amendment, withdrawal or revocation in
conjunction with such solicitation of authorizations, agreements or consents or
unless and to the extent required by law.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
SECTION 1.05. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument, Attention: Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed
for the giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders of Registered
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<PAGE>
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 3.01, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in the City
of New York and, if a Responsible Officer has actual knowledge that the
Securities of such series are then listed on the International Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, in London, and, if a Responsible Officer has actual knowledge that the
Securities of such series are then listed on the Luxembourg Stock Exchange and
such stock exchange shall so require, in Luxembourg and, if a Responsible
Officer has actual knowledge that the Securities of such series are then listed
on any other stock exchange outside the United States and such stock exchange
shall so require, in any other required city outside the United States or, if
not practicable, in Europe on a Business Day at least twice, the first such
publication to be not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice, and in such other city
or cities as may be specified in such Securities on a Business Day, such
publication to be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of such publication or, if published
more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be given with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture or any Security 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.
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SECTION 1.07. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision of
the TIA that is required under such Act to be a part of and govern this
Indenture, the TIA provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA 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 1.08. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Paying Agent, Security Registrar and Authenticating
Agent and the Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12. Governing Law.
-------------
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the State of New York, but without
regard to principles of conflicts of law.
SECTION 1.13. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities or coupons (other than a provision of the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section)) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, Repayment
Date, Stated Maturity or Maturity, provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity, as the case may be.
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SECTION 1.14. Counterparts.
------------
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
---------------
The Registered Securities, if any, and the Bearer Securities and related
coupons, if any, of each series shall be in substantially such form (including
temporary or permanent global form) as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or market or as may, consistently herewith, be determined by the officers
executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If the form of Securities of any series or coupons is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities other than Securities in temporary or permanent global form shall
have coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities or coupons, as evidenced by their execution
of such Securities or coupons.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication on each Security shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
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<PAGE>
____________________________________
, as Trustee
By:_________________________________
(Authorized Officer)
SECTION 2.03. Securities Issuable in Global Form.
----------------------------------
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 3.01, then, notwithstanding clause (9) of
Section 3.01 and the provisions of Section 3.02, any such Global Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 3.03 or 3.04. Subject to the provisions of
Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.03 or 3.04
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement, delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.03(g) shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03(g).
Notwithstanding the provisions of Section 3.07, unless otherwise specified
as contemplated by Section 3.01, payment of principal of (and premium, if any)
and interest, if any, on any permanent Global Security shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.09 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent Global Security (i) in the case of a
permanent Global Security in registered form, the Holder of such permanent
Global Security in registered form, or (ii) in the case of a permanent Global
Security in bearer form, Euroclear, CEDEL or such other Person as may be known
to the Trustee to be the bearer thereof.
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<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities shall rank equally and pari passu and may be issued in one or
more series. There shall be established in or pursuant to a Board Resolution,
and, subject to Section 3.03, set forth, or determined in the manner provided,
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series, any or
all of the following, as applicable (each of which (except for the matters in
clauses (1) and (2)), if so provided, may be determined by the Company with
respect to unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.03 and except
for any Securities which, pursuant to Section 3.03, are deemed never to have
been authenticated and delivered hereunder);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities (and
premium, if any), of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, or the method or methods by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall accrue,
or the method by which such date or dates will be determined or extended,
the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Registered Security
on any Interest Payment Date, the circumstances, if any, in which the
Company may defer interest payments and the manner of computing interest if
other than as specified in Section 3.11;
(5) the place or places where, subject to the provisions of Section
10.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered for exchange and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served and where notices to Holders pursuant to Section 1.06 will be
published;
- 19 -
<PAGE>
(6) the period or periods within which or the date or dates on which,
the price or prices at which, and the terms and conditions upon which,
Securities of the series may be redeemed, in whole or in part, at the option
of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the other terms and
conditions upon which, Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(8) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both, the terms upon which Bearer
Securities of the series may be exchanged for Registered Securities of the
series (and vice versa) if other than as provided in Sections 3.04 and 3.05,
and, in the case of Bearer Securities (or any temporary Global Security
representing the same), the date as of which such Bearer Securities shall be
dated if other than the date of original issuance of the first Security of
such series of like tenor and term to be issued;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global
form shall be permanent or temporary and, if so, whether beneficial owners
of interests in any such permanent Global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided in
this Article Three, and, if applicable, the Exchange Date;
(10) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 10.05;
(11) the denominations in which any Registered Securities of the series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which any Bearer Securities of
such series shall be issuable, if other than denominations of $5,000 and any
integral multiple thereof;
(12) if other than Dollars, the Currency or Currencies of denomination
of the Securities of any series, which may be in any Foreign Currency or any
composite Currency or index, including but not limited to the ECU, and, if
any such Currency of denomination is a composite Currency other than the
ECU, the agency or organization, if any, responsible for overseeing such
composite Currency;
(13) whether either, both or neither of Section 15.02 or Section 15.03
shall apply to the Securities of the series;
(14) if other than Dollars, the Currency, Currencies or currency units
in which payment of the principal of (and premium, if any) and interest, if
- 20 -
<PAGE>
any, on any Securities of the series shall be payable and the Currency or
Currencies, if any, in which payment of the principal of (and premium, if
any) or the interest, if any, on Registered Securities at the election of
each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the time and manner of determining the exchange rate between Currency or
Currencies in which such Securities are denominated or stated to be paid and
the Currency or Currencies in which such Securities are to be paid, in each
case in accordance with, in addition to or in lieu of Section 3.12;
(15) if the amount of payments of principal of (or premium, if any) or
interest, if any, on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be determined;
(16) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if other than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary Global
Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 3.04;
(17) the designation of the initial Exchange Rate Agent, if any;
(18) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable;
(19) 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 pursuant to Section
5.02;
(20) if other than the Trustee, the identity of the Security Registrar
and/or Paying Agent; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(5)).
Except as set forth below, all Securities of any one series and the coupons
appertaining to Bearer Securities of such series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and (subject to Section 3.03) set forth, or
determined in the manner provided, in such Officers' Certificate or in any
indenture supplemental hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
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<PAGE>
rates of interest, if any, may be determined, with different dates on which such
interest may be payable and with different Redemption or Repayment Dates and may
be denominated in different Currencies or payable in different Currencies.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
-------------
Securities of each series shall be issuable in such form and denominations
as shall be specified in the form of Security for such series approved or
established pursuant to Section 2.01 or in the Officers' Certificate delivered
pursuant to Section 3.01. In the absence of any specification with respect to
the Securities of any series, the Registered Securities of such series, if any
(other than Registered Securities in global form, which may be in any
denomination), shall be issuable in denominations of $1,000 and any integral
multiples thereof and the Bearer Securities of such series, if any (other than
Bearer Securities in global form, which may be in any denomination), shall be
issuable in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
(a) The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon, and shall be attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile. Coupons shall bear
the facsimile signature of an authorized officer of the Company.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
coupons or did not hold such offices at the date of such Securities or coupons.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, executed by
the Company, to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and, except as otherwise
provided in this Article Three, the Trustee in accordance with the Company Order
shall authenticate and deliver such Securities; provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 3.01, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 3.01, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
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<PAGE>
Indenture. If any Security shall be represented by a permanent Global Bearer
Security, then, for purposes of this Section 3.03 and Section 3.04, the notation
of a beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary Global Security shall be deemed to
be delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section
3.06, the Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached and
canceled. If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate, maturity date, date
of issuance and date from which interest shall accrue. If the form or terms of
the Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(i) if the form of such Securities and coupons, if any, has been
established by or pursuant to a Board Resolution as permitted by Section
2.01, that such form has been established in conformity with the provisions
of this Indenture;
(ii) if the terms of such Securities and coupons, if any, have been
established by or pursuant to a Board Resolution as permitted by Section
3.01, that such terms have been established in conformity with the
provisions of this Indenture; and
(iii) that such Securities and coupons, if any, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles and except further as enforcement thereof may be limited
by (1) requirements that a claim with respect to any Securities denominated
other than in Dollars (or a Foreign Currency or Currency unit judgment in
respect of such claim) be converted into Dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (2)
governmental authority to limit, delay or prohibit the making of payments in
Foreign Currencies or Currency units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section 3.03, Section 3.04, if and to the extent
applicable, and the Company Order with respect to such series, authenticate and
deliver one or more Global Securities in permanent or temporary form that (i)
shall represent and shall be denominated in an aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more Global
Securities, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary and (iii) shall
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<PAGE>
be delivered by the Trustee to such Depositary or a custodian pursuant to such
Depositary's instructions.
(d) If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
(e) Notwithstanding the provisions of Section 3.01 and this Section 3.03,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise
required pursuant to this Section 3.03 at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.
(f) Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated the date contemplated by Section 3.01.
(g) No Security or attached coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless executed and
issued by the Company and there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.10, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
(h) To the extent required by law, each Depositary designated pursuant to
Section 3.01 for a Global Security must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
(i) The Securities may contain such notations, legends or endorsements as
may be required by law, stock exchange rule or usage.
SECTION 3.04. Temporary Securities.
--------------------
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
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omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 3.04(b) or as otherwise provided in or
pursuant to a Board Resolution), or as otherwise provided in or pursuant to a
Board Resolution, if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by any
non-matured coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations;
provided, however, that unless otherwise contemplated or specified with respect
to any series of Securities pursuant to Section 3.01, no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided further that a Bearer Security shall be delivered in exchange for a
Bearer Security only in compliance with the applicable conditions set forth in
Sections 3.03, 3.04 and 3.05. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 3.04(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a Depositary, for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or after
the Exchange Date, such temporary Global Security shall be surrendered by the
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary Global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 3.01, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Depositary, such temporary Global Security is
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary Global Security held for
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its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary Global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 3.01; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 3.03, 3.04 and 3.05, as
applicable.
Unless otherwise specified in such temporary Global Security, the interest
of a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear,
CEDEL or another Person, as the case may be, to request such exchange on his
behalf and delivers to Euroclear, CEDEL or such other Person, as the case may
be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or
in such other form as may be established pursuant to Section 3.01), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the officers of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary Global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary Global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on a temporary Global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
3.01), for credit without further interest on or after such Interest Payment
Date to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 3.01). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 3.04(b) and of Section 3.03(b) of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary
Global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary Global Security will be made unless and until such interest in such
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temporary Global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company.
SECTION 3.05. Registration; Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 3.05
and Section 10.02, with respect to the Securities of each series which are
Registered Securities, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. Pursuant to Section 3.01, the Company shall
appoint, with respect to Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such
Securities and transfers and exchanges of such Securities as herein provided.
The Trustee, at its Corporate Trust office, is initially appointed Security
Registrar for such Registered Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations,
of like tenor and terms and aggregate principal amount, all as requested by the
transferor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of like tenor and terms and aggregate principal
amount, upon surrender of the Registered Securities to be exchanged at such
office or agency. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 3.01, Bearer Securities may not be issued
in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be issued
in exchange for Bearer Securities (except as otherwise specified as contemplated
by Section 3.01 with respect to a Bearer Security in global form) of the same
series, of any authorized denominations and of like tenor and terms and
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 10.02, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
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<PAGE>
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the same
series and like tenor and terms after the close of business at such office or
agency of (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03(h), the Company shall
appoint a successor Depositary with respect to the Securities of such series.
If a successor Depositary for the Securities of such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 3.01(9)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(a) to each Person specified by such Depositary in writing a new
Security or Securities of the same series, of like tenor and terms and of
any authorized denominations as requested by such person in aggregate
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principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount
of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Securities
(a) in definitive registered form in authorized denominations, if the Securities
of such series are issuable as Registered Securities, (b) in definitive bearer
form in authorized denominations, with coupons attached, if the Securities of
such series are issuable as Bearer Securities or (c) as either Registered or
Bearer Securities, as shall be specified by the beneficial owner thereof, if the
Securities of such series are issuable in either form; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company knows or has reason to know that any such
certificate is false.
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Registered Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the persons in whose names such
Securities are so registered. The Trustee shall deliver Bearer Securities
issued in exchange for a Global Security pursuant to this Section to the
persons, and in such authorized denominations, as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee in writing; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary Global
Security unless the Company or its agent shall have received from the person
entitled to receive the definitive Bearer Security a certificate substantially
in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and
provided further that delivery of a Bearer Security shall occur only outside the
United States; and provided further that no definitive Bearer Security will be
issued if the Company has reason to know that any such certificate is false.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
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<PAGE>
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer, registration of transfer or exchange of Securities, other than
exchanges of Securities expressly provided in this Indenture to be made at the
Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any particular series to be redeemed for a period of
fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Securities of
such series selected for redemption under Section 11.03 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of such Registered Security being redeemed in
part, or (iii) to exchange any Bearer Security so selected for redemption except
that such a Bearer Security may be exchanged for a Registered Security of like
tenor and terms of that series, provided that such Registered Security shall be
simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchange the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchange thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to a Paying Agent outside the United States or, in the case of a
Registered Security, to the Trustee or (ii) the Company and the Trustee receive
evidence to their satisfaction of the loss, destruction or theft of any Security
or coupon together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them or any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor (together with all coupons not destroyed, lost or stolen) a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding with coupons corresponding to any
coupons appertaining to the surrendered Security; provided, that any such Bearer
Security will be delivered only in compliance with Section 3.03, 3.04 and 3.05,
as applicable.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon; provided, however, that payment of
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principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 10.02, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security or coupon under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved; Optional
--------------------------------------------------------
Interest Reset.
--------------
(a) Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.01, interest, if any, on any
Registered Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 10.02; provided,
however, that each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 3.09, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee inside the
United States.
Unless otherwise provided as contemplated by Section 3.01 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, at the Holder's option by (i) check in the
Currency designated for such payment pursuant to the terms of the Bearer
Security presented or mailed to an address outside the United States or (ii)
transfer to an account in such Currency maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 3.01, every
permanent Global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with respect
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respect to that portion of such permanent Global Security held for its account
by the Depositary, for the purpose of permitting each of Euroclear and CEDEL
to credit the interest, if any, received by it in respect of such permanent
Global Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.01, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 30 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and 3.12(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
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Date and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or agency
on any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to
such proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security issued
in exchange for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 3.07(b) may be made applicable to any
series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 75 days prior to an Optional Reset Date for such Security. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 1.06, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or, if there is no such next Optional Reset Date, to the Stated
Maturity of such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to an Optional
Reset Date, the Company may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
provided for in the Reset Notice and establish an interest rate (or a spread or
spread multiplier used to calculate such interest rate, if applicable) that is
higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period
by causing the Trustee to transmit, in the manner provided for in Section 1.06,
notice of such higher interest rate (or such higher spread or spread multiplier,
if applicable) to the Holder of any such Security. Such notice shall be
irrevocable. All Securities with respect to which the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
is reset on an Optional Reset Date, and with respect to which the Holders of
such Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to the next succeeding paragraph, will bear
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such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date,
the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section 3.07 and Section 3.05,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Security that is converted after any Regular Record Date
and on or prior to the next succeeding Interest Payment Date (other than any
Security whose Maturity is prior to such Interest Payment Date), interest shall
be payable on such Interest Payment Date notwithstanding such conversion, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding sentence, in
the case of any Security that is converted, interest after the date of
conversion of such Security shall not be payable.
SECTION 3.08. Optional Extension of Maturity.
------------------------------
The provisions of this Section 3.08 may be made applicable to any series of
Securities pursuant to Section 3.01 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 3.01). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 75 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 1.06, to the Holder of any such Security not later than
40 days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
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Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 1.06, notice of such higher interest rate to
the Holder of any such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended will bear such
higher interest rate.
If the Company extends the Stated Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Stated Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 3.09. Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 3.05 and 3.07) any interest on such
Registered Security and for all other purposes whatsoever, whether or not such
Registered Security is overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass
by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with respect to such
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Global Security or impair, as between such Depositary and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Global Security.
SECTION 3.10. Cancellation.
------------
All Securities and coupons surrendered for payment, redemption, repayment at
the option of the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities and coupons held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.11. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.01 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
SECTION 3.12. Currency and Manner of Payments in Respect of Securities.
--------------------------------------------------------
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 3.12 may be modified or superseded with
respect to any Securities pursuant to Section 3.01.
(b) It may be provided pursuant to Section 3.01 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (or premium,
if any) or interest, if any, on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
3.01, not later than the close of business on the Election Date (as defined
below) immediately preceding the applicable payment date. If a Holder so elects
to receive such payments in any such Currency, such election will remain in
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effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Election Date immediately preceding the next payment date to
be effective for the payment to be made on such payment date and no such change
of election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Fifteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in Section 3.12(a). The Trustee for each such
series of Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 3.01, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
3.01, then, unless otherwise specified pursuant to Section 3.01, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 3.01 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.01, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b) above. Such
amounts shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 3.01, the
Dollar amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency (as defined below) or, in the case of a currency unit, the Dollar
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Equivalent of the Currency Unit (as defined below), in each case as determined
by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 3.12.
(f) "Dollar Equivalent" when used with respect to any Foreign Currency
shall be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) "Dollar Equivalent" when used with respect to any currency unit shall
be determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting the
Specified Amount (as defined below) of each Component Currency (as defined
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12, the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including, but
not limited to, the ECU. A "Specified Amount" of a Component Currency shall
mean the number of units of such Component Currency or fractions thereof
which were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion Date
the official unit of any Component Currency is altered by way of combination
or subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single currency, and such amount shall thereafter be a
Specified Amount and such single currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more currencies, having
an aggregate Dollar Equivalent value at the Market Exchange Rate on the date
of such replacement equal to the Dollar Equivalent of the Specified Amount
of such former Component Currency at the Market Exchange Rate immediately
before such division, and such amounts shall thereafter be Specified Amounts
and such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not limited
to, the ECU, a Conversion Event (other than any event referred to above in
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this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as
the case may be, or such other prior date for any series of Registered
Securities as specified pursuant to Section 3.01(14) by which the written
election referred to in Section 3.12(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and Exchange Rate Agent (and such Trustee will promptly thereafter
give notice in the manner provided in Section 1.06 to the affected Holders)
specifying the Conversion Date. In the event the Company so determines that a
Conversion Event has occurred with respect to the ECU or any other currency unit
in which Securities are denominated or payable, the Company will immmediately
give written notice thereof to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders).
The Trustee of the appropriate series of Securities shall be fully justified
and protected in relying and acting upon information received by it from the
Company and the Exchange Rate Agent and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such information independent
of the Company or the Exchange Rate Agent.
SECTION 3.13. Appointment and Resignation of Successor Exchange Rate Agent.
------------------------------------------------------------
(a) Unless otherwise specified pursuant to Section 3.01, if and so long as
the Securities of any series (i) are denominated in a Foreign Currency or (ii)
may be payable in a Foreign Currency, or so long as it is required under any
other provision of this Indenture, then the Company will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate
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Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified pursuant
to Section 3.01 for the purpose of determining the applicable rate of exchange
and, if applicable, for the purpose of converting the issued Foreign Currency
into the applicable payment Currency for the payment of principal (and premium,
if any) and interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
SECTION 3.14. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; provided
that neither the Company nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Security, check, advice of
payment or notice, and any such document may contain a statement to the effect
that CUSIP numbers have been assigned by an independent service for convenience
of reference and that neither the Company nor the Trustee shall be liable for
any inaccuracy in such numbers; and provided further that any such document may
state that no representation is made as to the correctness or accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
SECTION 3.15. Certification by a Person Entitled to Delivery of
-------------------------------------------------
Bearer Security.
---------------
Whenever any provision of this Indenture or a Security contemplates that
certification be given by a Person entitled to delivery of a Bearer Security,
such certification shall be provided substantially in the form of Exhibit A-1
and, if applicable, A-2 hereto, with only such changes as shall be approved by
the Company and consented to by the Trustee whose consent shall not unreasonably
be withheld.
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SECTION 3.16. Judgments.
---------
The Company may provide, pursuant to Section 3.01, for the Securities of any
series that, to the fullest extent possible under applicable law and except as
may otherwise be specified as contemplated in Section 3.01, (a) the obligation,
if any, of the Company to pay the principal of (and premium, if any) and
interest, if any, on the Securities of any series and any appurtenant coupons in
a Foreign Currency, composite Currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 3.01 is of the essence and agrees that
judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest, if any, on such
Securities and any appurtenant coupons shall notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day of such payment; (c)
if the amount in the Designated Currency that may be purchased falls short of
the amount originally due for any reason, the Company shall pay such additional
amounts needed to compensate for any short fall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
SECTION 3.17. Medium Term Securities.
-----------------------
Notwithstanding any contrary provision herein, if all Securities of a series
are not to be originally issued at one time, it shall not be necessary for the
Company to deliver to the Trustee an Officers' Certificate, Board Resolution,
supplemental indenture, Opinion of Counsel or Company Order otherwise required
pursuant to Sections 1.02, 3.01 and 3.03 at or prior to the time of
authentication of each Security of such series if such documents are delivered
to the Trustee or its agent at or prior to the authentication upon original
issuance of the first Security of such series to be issued; provided that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such request, the statements made
in the Officers' Certificate or other certificates delivered pursuant to
Sections 1.02 and 2.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount established
for such series pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by Company Order upon the telephonic, electronic or
written order of persons designated in such Company Order, Officers'
Certificate, supplemental indenture or Board Resolution (any such telephonic or
electronic instructions to be promptly confirmed in writing by such persons) and
that such persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution, such
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terms and conditions of said Securities as are specified in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect with respect to any
series of Securities (except as to any surviving rights of conversion or
transfer or exchange of Securities of such series expressly provided for herein
or in the form of Security for such series and rights to receive payments of
principal (and premium, if any) and interest, if any, thereon and any right to
receive additional amounts, as provided in Section 10.05), and the Trustee, on
the demand and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) all Securities of that series theretofore authenticated, issued
and delivered and all coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities of that series surrendered in exchange for
Registered Securities of that series and maturing after such exchange, surrender
of which is not required or has been waived as provided in Section 3.05; (ii)
Securities of that series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06; (iii) coupons
appertaining to Bearer Securities of that series called for redemption or
surrendered for repayment and maturing after the relevant Redemption Date or
Repayment Date, as appropriate, surrender of which has been waived as provided
in Section 11.06 or 13.03; and (iv) Securities of that series for whose payment
money has theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 10.03), have been delivered to the Trustee for
cancellation; or
(B) all such Securities of that series and, in the case of (B) (i) or
(ii) below, any coupons appertaining thereto, not theretofore delivered to the
Trustee cancelled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
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and the Company, in the case of (B) (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount, which shall be immediately due and payable, sufficient to pay and
discharge the entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee cancelled or for cancellation, for
principal (and any premium, if any) and interest, if any, to the date of such
deposit (in the case of Securities which have become due and payable), or to the
Stated Maturity or Redemption Date, or any Repayment Dates, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Securities of such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of such series, the obligations of the Company to the
Trustee with respect to that series under Section 6.07, the obligations of the
Trustee to any Authenticating Agent with respect to that series under Section
6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money.
--------------------------
(a) Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01 or 15.04 shall be held
in trust and applied by it, in accordance with the provisions of the series of
Securities in respect of which it was deposited, the appurtenant coupons and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except to
the extent required by law.
(b) If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Four with respect to the Securities of any series
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Four with respect to Securities of such series until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to this Section 4.02 with respect to Securities of such series in
accordance with this Article Four; provided, however, that if the Company makes
any payment of principal, premium or interest on any Security of such series
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of Securities of such series to receive payment
from the money so held in trust.
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ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to any series of
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body);
unless such event is either inapplicable to a particular series or it is
specifically deleted or modified in or pursuant to the supplemental indenture or
Board Resolution creating such series of Securities or in the form of Security
for such Series:
(1) default in the payment of any installment of interest upon any Security
of that series or of any coupon appertaining thereto when it becomes due and
payable and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or analogous
obligation when and as the same becomes due by the terms of the Securities of
such series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture 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 of which or the breach of which is elsewhere in this
Section specifically dealt with), all of such covenants and warrants in this
Indenture which are not expressly stated to be for the benefit of a particular
series of Securities being deemed in respect of the Securities of all series for
this purpose, and continuance of such default or breach for a period of 90
consecutive days after receipt by the Company from the Trustee or by the Company
and the Trustee from the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, of a written notice, by registered or
certified mail, specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(5)(i) a default occurs under any instrument or instruments (including
this Indenture) under which there is at the time outstanding, or by which there
may be secured or evidenced, any indebtedness of the Company or any Subsidiary
for money borrowed by the Company or any Subsidiary or any guarantee of payment
by the Company or any Subsidiary of any obligation of any Person which results
in acceleration (whether by declaration or automatically) of, or the nonpayment
at maturity (after giving effect to any applicable grace of period) of, such
indebtedness or guarantee in an aggregate amount exceeding $15,000,000, in which
case the Company shall immediately give notice to the Trustee of such
acceleration or nonpayment and (ii) there shall have been a failure to cure such
default or to discharge all such defaulted indebtedness or guarantee or such
default is not otherwise waived and such acceleration has not been rescinded or
annulled within fifteen (15) days after receipt by the Company from the Trustee
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<PAGE>
or by the Company and the Trustee from the Holders of at least 25% in aggregate
principal amount of the Securities then Outstanding (excluding, if such
defaulted indebtedness includes any series of Securities, such series of
Securities) of a written notice thereof, by registered or certified mail, and
stating that such notice is a "Notice of Default" hereunder; or
(6) the entry of an order for relief against the Company under the Federal
Bankruptcy Code by a court having jurisdiction in the premises or a decree or
order by a court having jurisdiction in the premises adjudging the Company
bankrupt or insolvent under any other applicable Federal or State law, or the
entry of a decree or order approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under the Federal Bankruptcy Code or any other applicable Federal or
State law, or appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of
90 consecutive days; or
(7) the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable Federal or State law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(8) any other Event of Default provided in the supplemental indenture or
Board Resolution under which such series of Securities is issued or in the form
of Security for such series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, unless the principal amount of all the
Securities of such series shall have already become due and payable, then in
every such case either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of that series (acting
as a separate class) may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Outstanding Securities of that
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and payable.
Upon payment to the Holders of such amount, all obligations of the Company in
respect of the payment of principal of the Securities of such series shall
terminate.
At any time after such acceleration with respect to Securities of any series
has occurred and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
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<PAGE>
Holders of a majority in principal amount of the Outstanding Securities of that
series (and without notice to any Holder of that Series), by written notice to
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay, in the Currency in which the Securities of that series are payable (except
as may otherwise be specified pursuant to Section 3.01 for such series and
except as may be provided in Section 3.12, if and to the extent applicable):
(A) all overdue installments of interest on all Outstanding Securities
of that series, and any related coupons,
(B) the principal of (and premium, if any, on) all Outstanding
Securities of that series which have become due otherwise than by such
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities, to the extent that payment of such interest is
lawful,
(C) interest upon the Defaulted Interest at the rate or rates
prescribed therefor in such Securities and any related coupons, to the
extent that payment of such interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder, and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and all other amounts due the Trustee under
Section 6.07,
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of (or premium, if any) or interest, if
any, on Securities of that series which have become due solely by such
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if an Event of Default specified in Sections
5.01(1), 5.01(2) or 5.01(3) occurs with respect to Securities of any series, the
Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of
the Holders of such Securities and any coupons appertaining thereto, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
premium, if any) and on any overdue installments of interest, at the rate or
rates prescribed therefor in such Securities and coupons, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all
other amounts due the Trustee under Section 6.07.
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<PAGE>
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon Securities of
such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of a series or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal (and
premium, if any) or interest, if any, in respect) of the Securities of that
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any such amount) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (or in the
case of Original Issue Discount Securities or Indexed Securities, such portion
of the principal as may be provided in the terms thereof) (and premium, if any)
and interest, if any, owing and unpaid in respect of such Securities and any
appurtenant coupons and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for such reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 6.07.
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<PAGE>
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy
or similar official and be a member of a creditors' or other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities or Coupons.
---------------------
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07, be for the ratable benefit of the
Holders of the Securities and coupons in respect of which such judgment has been
recovered.
SECTION 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, if any, upon presentation of the Securities or coupons, or both,
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, including
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest, if any, on the Securities and coupons
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal (and premium,
if any) and interest, if any, respectively. The Holders of each series of
Securities denominated in ECU, any other composite Currency or a Foreign
Currency and any matured coupons relating thereto shall be entitled to
receive a ratable portion of the amount determined by the Exchange Rate
Agent by converting the principal amount Outstanding of such series of
Securities and matured but unpaid interest on such series of Securities in
the Currency in which such series of Securities is denominated into Dollars
at the Exchange Rate as of the date of declaration of acceleration of the
Maturity of the Securities; and
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<PAGE>
THIRD: The balance, if any, to the Company, its successors or assigns,
or to whomever may be lawfully entitled to receive same, or as a court of
competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 5.06. At least 15 days before such record date, the
Company shall, upon written request of the Trustee, mail to each Holder a notice
that states the record date, payment date and amount to be paid.
SECTION 5.07. Limitation on Suits.
-------------------
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
--------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.05 or 3.07) interest, if any, on such Security or coupon on the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption or repayment, on the Redemption Date or Repayment Date, as
the case may be) and to institute suit for the enforcement of any such payment
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on and after the respective Stated Maturities or applicable Redemption Date or
Repayment Date, and such rights shall not be impaired without the consent of
such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of any Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders of any Security or coupon shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of any Security or coupon is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 5.12. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that:
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall determine that the
proceedings so directed would involve it in personal liability or be
unjustly prejudicial to the Holders not taking part in such direction, and
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(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
This Section 5.12 shall be in lieu of Section 316 (a)(1)(A) of the Trust
Indenture Act and such Section 316 (a)(1)(A) is hereby expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
SECTION 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may by notice to the Trustee (and without
notice to any other Holder) on behalf of the Holders of all the Securities of
such series and any related coupons waive any past default hereunder with
respect to such series and its consequences, except (if not theretofore cured):
(1) an Event of Default described in Section 5.01(1), (2) or (3) or
(2) a default in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series or coupons affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereto. This Section 5.13 shall be in
lieu of Section 316 (a)(1)(B) of the Trust Indenture Act and such Section 316
(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the
Trust Indenture Act.
SECTION 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
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
or the Company, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series to which the suit relates, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest, if any, on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date, as the case may
be).
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
---------------------------------------
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<PAGE>
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to any series of Securities,
(1) the Trustee shall not be liable except for the performance of
such duties and only such duties as are specifically set forth in this
Indenture with respect to the Securities of such series, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
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<PAGE>
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder of which the
Trustee has knowledge with respect to Securities of any series, the Trustee
shall transmit by mail, in the manner and to the extent provided in TIA Section
313(c), to all Holders of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series or in the payment of
any sinking or purchase fund installment or analogous obligation with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of such series; and provided; further, that in the case of any default of the
character specified in Section 5.01(4) with respect to Securities of such series
no such notice to Holders of such series shall be given until at least 90 days
after the occurrence thereof. For the purpose of this Section, the term
"default", with respect to Securities of any series, means any event which is,
or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series. The Trustee shall not be deemed to have
knowledge of any Event of Default or of any event or condition which, with the
giving of notice, the passage of time or both, might constitute an Event of
Default unless (i) the Trustee has received written notice thereof from the
Company or a Holder or (ii) a Responsible Officer of the Trustee shall have
actual knowledge thereof.
SECTION 6.03. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or other
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certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any instruction, request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting to take any action hereunder, the Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction:
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent, reasonably acceptable to the Company, or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys reasonably acceptable to the Company and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder, and no Depositary or
Paying Agent shall be deemed an agent of the Trustee and the Trustee shall
not be responsible for any act or omission by any of them;
(h) the Trustee shall not be responsible for the computation of any
adjustment to the Conversion Price or for any determination as to whether an
adjustment is required; and
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(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this
Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities or any
coupons, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
-------------------
Subject to the provisions of Section 10.03, all moneys received by the
Trustee shall, until used or applied as herein provided, be held by the Trustee
in trust hereunder for the purposes for which they were received, and shall be
segregated from the funds of the Trustee, other than funds held in trust. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed to in writing by the Company and the
Trustee.
SECTION 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as the Company and the Trustee shall from
time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
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disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and each of the Trustee's
directors, officers, employees, agents, successors and assigns (the
"Indemnitees") or any predecessor Trustee for, and to hold them harmless
against, any and all losses, damages, claims, liabilities or expenses,
including taxes (other than taxes based upon, measured by or determined by
the income of the Trustee), incurred without negligence or bad faith on
their part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending the Indemnitees against any claim or liability in
connection with the exercise or performance of any of their powers or duties
hereunder as Trustee, Authenticating Agent, Security Registrar or Paying
Agent.
The obligations of the Company under this Section 6.07 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the termination of this
Indenture. As security for the performance of such obligations of the Company,
the Trustee shall have a claim prior to the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any, on) or interest, if any, on
particular Securities. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(6) or Section
5.01(7), the expenses (including reasonable fees and expenses of its counsel)
and the compensation for the service in connection therewith are intended to
constitute expense of administration under any applicable bankruptcy, insolvency
or other similar law.
The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (3) of
this Section 6.07 within a reasonable amount of time after a Responsible Officer
becomes actually aware of such claim or liability.
SECTION 6.08. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under (i) this Indenture with
respect to Securities of any particular series of Securities other than that
series and (ii) any other indenture or indentures in each case as and to the
extent that such series or indenture satisfies the requirements set forth in
Section 310(b)(i) of the Trust Indenture Act. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
penultimate paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
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(a) There shall at all times be a Trustee hereunder with respect to
each series of Securities, which shall be either:
(i) a corporation organized and doing business under the laws of
the United States of America or of any State, the District of Columbia
or, for Bearer Securities only, any Territory authorized under such
laws to exercise corporate trust powers and subject to supervision or
examination by Federal, State, District of Columbia or Territory
authority, or
(ii) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees,
in either case having a combined capital and surplus of at least
$50,000,000, except that the initial Trustee hereunder shall be required to
maintain a combined capital and surplus of at least $10,000,000. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as
trustee for the Securities of any series issued hereunder. If at any time
the Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in Section 6.10.
(b) The Company may appoint a separate Trustee for any one or more
series of Securities. The Trustee for each such series shall be identified
in a supplemental indenture and shall be the sole Trustee with respect to
such series of Securities and shall have all the rights, duties and
obligations as with respect to such series as reserved to the Trustee
hereunder as if set forth in such supplemental indenture.
SECTION 6.10. Resignation and Removal, Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
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jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any
series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee subject to removal may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 6.08 with respect to any series of
Securities after written request therefor by the Company or by any Holder of
a Security of that series who has been a bona fide Holder of such Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(5) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series, or in the case of clauses (4) or (5), with
respect to all series of Securities, or (ii) subject to Section 5.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series, or in the case
of clauses (4) or (5), with respect to all series of Securities.
If the Trustee shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of Trustee for any cause, with respect to
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the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of such series and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 1.06. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its reasonable charges, if any, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
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or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first two paragraphs of this Section 6.11, as the case may be.
No successor Trustee with respect to any series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article
and under the Trust Indenture Act.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article and under the Trust Indenture Act, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor, directly or
indirectly, of the Company (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of Section 311(a) of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor), excluding any creditor relationships described in Section
311(b) of the Trust Indenture Act. A Trustee who resigned or has been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.
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SECTION 6.14. Appointment of Authenticating Agent.
-----------------------------------
The Trustee, with the prior written approval of the Company, may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent appointed by the Trustee shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia or, for Bearer Securities only, any Territory of the United
States of America, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and, if other
than the Company itself, subject to supervision or examination by Federal,
State, District of Columbia or such Territory authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then, for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent appointed by the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.14, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.14, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and, if other than the Company, to the Company. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent, if other than the
Company, and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section 6.14, the
Trustee, with the approval of the Company, may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
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hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.14.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.14.
If an appointment with respect to one or more series is made pursuant to
this Section 6.14, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within mentioned Indenture.
Chemical Trust Company of California,
as Trustee
By:__________________________________
As Authenticating Agent
By:__________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company and any other obligor upon the Securities will furnish or cause
to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular Record
Date for each series of Securities at the time Outstanding, a list, in such
form as the Trustee may reasonably require, containing all information in
the possession or control of the Company or any other such obligor, or of
any of the Company's or such other obligor's Paying Agents, as to the names
and addresses of the Holders of Registered Securities of such series as of
the preceding Regular Record Date (or a date to be determined pursuant to
Section 3.01 for Original Issue Discount Securities), and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished. The Trustee shall preserve for at least two years the
names and addresses of Holders of Bearer Securities filed with the Trustee by
such Holders.
The rights of the Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by Section 312(b) of
the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to Section 313
of the Trust Indenture Act at the times and in the manner provided pursuant
thereto, if so required.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee in writing when any Securities are listed on any stock
exchange.
SECTION 7.04. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to Section 314(a) of the Trust Indenture
Act at the times and in the manner provided pursuant to the TIA; provided that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company, in a single transaction or through a series of related
transactions, shall not consolidate with or merge with or into any other Person
or transfer (by lease, assignment, sale or otherwise) all or substantially all
of its properties and assets to another Person or group of affiliated Persons,
unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which all or substantially all of the
properties and assets of the Company are transferred (i) shall be a
corporation, partnership or trust organized and validly existing under the
laws of the United States of America or any State thereof or the District of
Columbia and (ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, and the
assumption contemplated by clause (a) above, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event
of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with
this Article VIII and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries (other than
to the Company or another wholly-owned Subsidiary), which, if such assets were
owned by the Company, would constitute all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
SECTION 8.02. Successor Person Substituted.
----------------------------
The successor Person formed by such consolidation or into which the Company
is merged or the successor Person to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein, and thereafter, except in the
case of a lease of its properties and assets substantially as an entirety, the
Company shall be discharged and released from all obligations and covenants
under this Indenture and the Securities. The Trustee shall enter into a
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supplemental indenture to evidence the succession and substitution of such
successor Person and such discharge and release of the Company.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company, or to surrender any right
or power herein conferred upon the Company, for the benefit of the Holders
of all or any series of Securities or coupons (and if such covenants or the
surrender of such right or power are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being
included or such surrenders are expressly being made solely for the benefit
of such series); provided that such action pursuant to this clause (2) shall
not adversely affect the interests of the Holders of any series or any
appurtenant coupons in any material respect; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series): or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest, if any, on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series or
any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination provided for in this clause (5): (i)
shall neither (A) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security with
respect to such provision or (ii) shall become effective only when there is
no Outstanding Security; or
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<PAGE>
(6) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at
the date as of which this instrument was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 6.11; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Indenture; provided that such action pursuant to this clause (9) shall not
adversely affect the interests of the Holders of Securities of any series or
any appurtenant coupons in any material respect; or
(10) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of each such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(1) change the Maturity of the principal of, or the Stated Maturity of
any premium on, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof (or premium, if any) or the
rate of interest, if any, thereon or any premium payable upon the redemption
thereof, or repayment thereof, or change any obligation of the Company to
pay additional amounts pursuant to Section 10.05 (except as contemplated by
Section 8.01(1) and permitted by Section 9.01(1)) or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 5.02, or change any Place of Payment where, or the Currency in
which, any Security (or premium, if any) or interest, if any, thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Maturity or Stated Maturity thereof (or, in the
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case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as applicable); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture or reduce the quorum or voting requirements of Section 14.04; or
(3) modify any of the provisions of this Section 9.02 or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby,
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 9.02, or the deletion of
this proviso, in accordance with the requirements of Section 6.11 and
9.01(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 120 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 9.03. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
SECTION 9.07. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture applicable to the Holders of Securities of one or more
series pursuant to Section 9.02, the Company shall transmit to such Holders a
notice setting forth the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of the Securities, any appurtenant coupons and this Indenture.
Any interest due on Bearer Securities on or before Maturity, other than
additional amounts, if any, payable as provided in Section 10.05 in respect of
principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Securities of any series pursuant to Section
3.01, at the option of the Company, all payments of principal may be paid by
check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security. Unless otherwise specified
as contemplated by Section 3.01 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable only
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upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 10.02. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain, subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for such series which is located outside the United
States where Securities of such series and the related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Securities of such series pursuant to Section 10.05); provided, however, that
if the Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the principal Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all the presentations, surrenders, notices and demands, except
that Bearer Securities of that series and the related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Bearer Securities of that series pursuant to Section 10.05) at the place
specified for the purpose pursuant to Section 3.01(5).
No payment of principal of (or premium, if any) or interest, if any, on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, payment of principal of and any premium and interest
denominated in Dollars (including additional amounts payable in respect thereof)
on any Bearer Security may be made at an office or agency of, and designated by,
the Company located in the United States if (but only if) payment of the full
amount of such principal, premium, interest or additional amounts in Dollars at
all offices outside the United States maintained for the purpose by the Company
in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions and the Trustee receives an
Opinion of Counsel that such payment within the United States is legal. Unless
otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the Currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such Currency
maintained by the payee with a bank located outside the United States.
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The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 10.03. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company, a Subsidiary or any of their respective Affiliates shall at
any time act as the Paying Agent with respect to any series of Securities, it
will, on or before each due date of the principal of (or premium, if any) or
interest, if any, on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) and interest, if any, so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of (or premium, if
any) or interest, if any, on any Securities of that series, and any appurtenant
coupons, deposit with the appropriate Paying Agent a sum sufficient to pay such
amount so becoming due, such sum to be held as provided by the Trust Indenture
Act, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section 10.03, that such Paying Agent will (i) comply with the provisions
of the Trust Indenture Act applicable to it as a Paying Agent, (ii) give the
Trustee notice in wrting of any default by the Company (or any other obligor
upon the Securities of such series) in the making of any payment of principal
(and premium, if any) or interest, if any, on the Securities of such series and
(iii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series and any appurtenant coupons, and upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any series of Securities or for
any other purpose, pay, or by Company Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or such Paying Agent, in
respect of each and every series of Securities as to which it seeks to discharge
this Indenture or, if for any other purpose, all sums so held in trust by the
Company in respect of all Securities, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
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Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (or premium, if any)
or interest, if any, on any Security of any series or any related coupons and
remaining unclaimed for two years after such principal (or premium) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City
of New York, New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company free of the trust formerly impressed
upon it.
SECTION 10.04. Purchase of Securities by Company or Subsidiary.
-----------------------------------------------
If and so long as the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any
Subsidiary to, purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
SECTION 10.05. Payment of Additional Amounts.
-----------------------------
If the Securities of a series provide for the payment of amounts in addition
to principal, premium or interest ("additonal amounts"), the Company will pay to
the Holder of any security of any such series or any coupon appertaining thereto
additional amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest, if any, on, or in
respect of, any Security of any series, any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided
for in the terms of such Securities and this Section 10.05 to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of additional amounts,
at least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest, if any, if there has been any
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change with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's Paying Agent
or Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest, if any, on the
Securities of that series shall be made to Holders of Securities of that series
or the related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts, if
any, required by the terms of such Securities and the first paragraph of this
Section 10.05. The Company covenants to indemnity the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section 10.05.
SECTION 10.06. Statement by Officers as to Default.
-----------------------------------
(a) Each obligor upon the Securities (including the Company) will deliver
to the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, a certificate from each such obligor's principal
executive officer, principal financial officer or principal accounting officer,
stating that a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has been
made under his supervision and whether or not to the best knowledge of the
signer(s) thereof such obligor is in default in the performance and observance
of any of the terms, conditions and covenants of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder), and if such
obligor shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee as soon as possible, and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default, an Officers' Certificate specifying such Event of Default,
the period of existence thereof and what action the Company is taking or
proposes to take with respect thereto.
SECTION 10.07. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its legal existence.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.
------------------------
The Company may reserve the right to redeem and pay before Stated Maturity
all or any part of the Securities of any series, either by optional redemption,
sinking or purchase fund or analogous obligation or otherwise, by provision
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therefor in the form of Security for such series established and approved
pursuant to Article Two and Article Three and on such terms as are specified in
such form or in the indenture supplemental hereto provided in Section 3.01.
Redemption of Securities of any series shall be made in accordance with the
terms of such Securities and, to the extent that this Article does not conflict
with such terms, the succeeding Sections of this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities redeemable at the
election of the Company shall be evidenced by or pursuant to authority granted
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of like tenor and terms of any series (a
"Tranche") are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such Tranche not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
include provision for the selection for redemption of portions of the principal
of Securities of such Tranche of a denomination larger than the minimum
authorized denomination for Securities of that series. Unless otherwise
provided in the terms of a particular series of Securities, the portions of the
principal of Securities so selected for partial redemption shall be equal to the
minimum authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of such series.
If less than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Tranche of Securities to be redeemed shall be selected
by the Company.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
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SECTION 11.04. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in Section 1.06
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(6) that the redemption is on account of a sinking fund, purchase fund
or other obligation, if such is the case,
(7) that Bearer Securities may be surrendered for payment only at such
place or places outside of the United States, except as otherwise specified
in Section 10.02 and unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on the Redemption Date pursuant to Section 3.05 or otherwise, the
last date, as determined by the Company, on which such exchanges may be
made, and
(9) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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Failure to give such notice to the Holder of any Security or any defect in
such notice given to the Holder of any Security shall not affect the validity of
the proceedings for any other Security or part thereof.
SECTION 11.05. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money in the Currency in which such Securities are payable sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date;
provided that such amount shall be so deposited with the Trustee or Paying Agent
in time for the Trustee or the Paying Agent, as the case may be, to pay such
Redemption Price in accordance with its normal procedures.
SECTION 11.06. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption
Price; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at an office
or agency located outside the United States except as otherwise provided in
Section 10.02) and provided further, that, unless otherwise specified in Section
3.01, installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Registered Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 10.02.
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If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 11.07. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Security without service charge, a new Registered Security or Securities of
the same series and Stated Maturity and of like tenor and terms, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
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SECTION 12.02. Provisions with Respect to any Sinking Funds.
--------------------------------------------
Unless the form or terms of any series of Securities shall provide
otherwise, in lieu of making all or any part of any mandatory sinking fund
payment with respect to such series of Securities in cash, the Company may at
its option (1) deliver to the Trustee for cancellation any Securities of such
series theretofore acquired by the Company, or (2) receive credit for any
Securities of such series (not previously so credited) acquired by the Company
(including by way of optional redemption (pursuant to the sinking fund or
otherwise) but not by way of mandatory sinking fund redemption) and theretofore
delivered to the Trustee for cancellation, and if it does so then (i) Securities
so delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to Securities of such series, and (ii) on or
before the 60th day next preceding each sinking fund Redemption Date with
respect to such series of Securities, the Company will deliver to the Trustee
(A) an Officers' Certificate specifying the portions of such sinking fund
payment to be satisfied by payment of cash and by delivery or credit of
Securities of such series acquired by the Company, and (B) such Securities, to
the extent not previously surrendered. Such Officers' Certificate shall also
state the basis for such credit and that the Securities for which the Company
elects to receive credit have not been previously so credited and were not
acquired by the Company through operation of the mandatory sinking fund, if any,
provided with respect to such Securities and shall also state that no Event of
Default with respect to Securities of such series has occurred and is
continuing. All Securities so delivered to the Trustee shall be cancelled by
the Trustee and no Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with respect
to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 11.06. The Trustee shall select, in the manner provided in
Section 11.03, for redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize that cash and shall
thereupon cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 11.04 (and with the
effect provided in Section 11.06) for the redemption of Securities in part at
the option of the Company. Any sinking fund moneys not so applied or allocated
by the Trustee to the redemption of Securities of such series shall be added to
the next cash sinking fund payment with respect to Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 12.02. Any and all sinking fund
moneys with respect to Securities of any series held by the Trustee at the
Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
On or before such sinking fund Redemption Date provided with respect to
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Securities of any series, the Company shall deposit with the Trustee cash in a
sum equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 12.02; provided that such cash shall be so deposited with the Trustee in
time for the Trustee to make the payment of such accrued interest in accordance
with its normal procedures.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.01. Applicability of Article.
------------------------
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with their
terms and (except as otherwise specified pursuant to Section 3.01 for Securities
of such series) in accordance with this Article.
SECTION 13.02. Repayment of Securities.
-----------------------
Each Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall, unless otherwise
provided in its terms, be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 13.03. Exercise of Option; Notice.
--------------------------
Each Holder desiring to exercise such Holder's option for repayment shall,
as conditions to such repayment, surrender the Security to be repaid in whole or
in part together with written notice of the exercise of such option at any
office or agency of the Company in a Place of Payment, not less than 30 nor more
than 45 days prior to the Repayment Date; provided, however, that surrender of
Bearer Securities together with written notice of exercise of such option shall
be made at an office or agency located outside the United States except as
otherwise provided in Section 10.02. Such notice, which shall be irrevocable,
shall specify the principal amount of such Security to be repaid, which shall be
equal to the minimum authorized denomination for such Security or an integral
multiple thereof, and shall identify the Security to be repaid and, in the case
of a partial repayment of the Security, shall specify the denominations of the
Security or Securities of the same series to be issued to the Holder for the
portion of the principal of the Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied by
all unmatured coupons and all matured coupons in default, such Bearer Security
may be paid after deducting from the Repayment Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Repayment Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States except as otherwise
provided in Section 10.02.
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The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series of any authorized denomination or denominations
specified in the foregoing notice, in an aggregate principal amount equal to any
portion of the principal of the Security so surrendered which is not to be paid;
provided, however, that the issuance of a Registered Security therefor shall be
subject to applicable laws and regulations in effect at the time of the
exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the Company would suffer adverse
consequences under the United States Federal income tax laws then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such issuances thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the case
of any Security repaid or to be repaid in part, to the portion of the principal
of such Security which has been or is to be repaid.
SECTION 13.04. Election of Repayment by Remarketing Entities.
---------------------------------------------
The Company may elect with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Date, Securities of such
series from the Holders thereof who give notice and surrender their Securities
in accordance with Section 13.03.
SECTION 13.05. Securities Payable on the Repayment Date.
----------------------------------------
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 13.04, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate borne by such Securities from time to time until payment in full of
such principal amount.
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.01. Purposes for which Meetings May be Called.
-----------------------------------------
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 14.02. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series issuable as Bearer Securities for any purpose
specified in Section 14.01, to be held at such time and at such place in the
Borough of Manhattan, the City of New York, the City of San Francisco,
California or in London as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section
1.06, not less than 21 no more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series, shall have requested the Trustee to call a meeting
of the Holders of Securities of such series for any purpose specified in
Section 14.01, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, the City
of New York, the City of San Francisco, California or in London for such
meeting and may call such meeting for such purposes by giving notice thereof
as provided in subsection (a) of this Section.
SECTION 14.03. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
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SECTION 14.04. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent which this Indenture
expressly provides may be given by the Holders of not less than 66 2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66 2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In the absence
of a quorum in any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such adjourned meeting. Notice of this reconvening of any
adjourned meeting shall be given as provided in Section 14.02(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series,
provided, however, that, except as limited by the proviso to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid only by the affirmative vote of the Holders of 66 2/3% in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 9.02, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 14.05. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
-----------------------
(a) Notwithstanding any other provisions of this Indenture, the
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Company may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 1.04 and the appointment of any proxy
shall be proved in the manner specified in Section 1.04 or, in the case of
Bearer Securities, by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.04 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the proof specified
in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
14.02(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint
a temporary chairperson. A permanent chairperson and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1.00 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of
Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairperson of the
meeting not to be Outstanding. The chairperson of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 14.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at a meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 14.06. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of vote who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
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knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 14.02 and, if
applicable, Section 14.01. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may elect, at its option by Board Resolution at any time, to
have either Section 15.02 or Section 15.03 applied to the Outstanding Securities
of any series designated pursuant to Section 3.01 as being defeasible, and any
related coupon, pursuant to this Article Fifteen (hereinafter called a
"Defeasible Series"), upon compliance with the conditions set forth below in
this Article Fifteen.
SECTION 15.02. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 15.01 to have
this Section 15.02 applied to the Outstanding Securities of any Defeasible
Series, the Company shall be deemed to have been discharged from its obligations
with respect to the Outstanding Securities of such series and any related
coupons as provided in this Section on and after the date the conditions set
forth in Section 15.04 are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under
the Securities of such series and this Indenture insofar as the Securities of
such series are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of Securities of such series to receive, solely from the trust
fund described in Section 15.04 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities of such series when payments are due, (2) the Company's
obligations with respect to the Securities of such series under Sections 3.04,
3.05, 3.06, 10.02, 10.03 and any additional amounts under Section 10.05, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
including, but not limited to, pursuant to Section 6.07 and (4) this Article
Fifteen. Subject to compliance with this Article Fifteen, the Company may
exercise its option provided in Section 15.01 to have this Section 15.02 applied
to the Outstanding Securities of any Defeasible Series notwithstanding the prior
exercise of its option provided in Section 15.01 to have Section 15.03 applied
to the Outstanding Securities of such series and any related coupons.
SECTION 15.03. Covenant Defeasance.
-------------------
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Upon the Company's exercise of the option provided in Section 15.01 to have
this Section 15.03 applied to the Outstanding Securities of any Defeasible
Series and any related coupons, (1) the Company shall be released from its
obligations under Sections 8.01 and 10.07 and (2) the occurrence of any event
specified in Sections 5.01(3), 5.01(4) (with respect to any of Sections 8.01 and
10.07) and 5.01(8) shall be deemed not to be or result in an Event of Default,
in each case with respect to the Outstanding Securities of such series as
provided in this Section 15.03 on and after the date the conditions set forth in
Section 15.04 are satisfied (hereinafter called "Covenant Defeasance"). For
this purpose, such Covenant Defeasance means that the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such specified Section (to the extent so specified in the case
of Section 5.01(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of such series shall be
unaffected thereby.
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section 15.02
or Section 15.03 to the Outstanding Securities of any Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.09 and agrees to comply with the
provisions of this Article Fifteen applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Outstanding Securities of such series, (A) money in an amount (in such
Currency in which such Securities and any coupons appertaining thereto are
then specified as payable at Stated Maturity), (B) U.S. Government
Obligations that through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such other qualifying Trustee)
to pay and discharge, the principal of (and premium, if any) and interest,
if any, on the Securities of such series on the respective Stated
Maturities, in accordance with the terms of this Indenture and the
Securities of such series.
(2) In the case of an election under Section 15.02, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date first set forth hereinabove,
there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
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if such deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 15.03, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize gain
or loss for Federal income tax purposes as result of the deposit and
Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then listed
on any securities exchange, will not be delisted as a result of such
deposit.
(5) No Event of Default or event that (after notice or lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 5.01 (6) and (7), at any
time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day), .
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act.
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified or exempt from regulation thereunder.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 15.05. Deposited Money and U.S. Government Obligations to be Held
----------------------------------------------------------
In Trust, Other Miscellaneous Provisions.
----------------------------------------
Subject to the provisions of the last paragraph of Section 10.03, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
15.05 and Section 15.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 15.04 in respect of the
Securities of any Defeasible Series and any related coupons shall be held in
trust and applied by the Trustee, in accordance with the provisions of the
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Securities and the related coupons, if any, of such series and this Indenture,
to the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of Securities of such series, of all sums due and to become due thereon
in respect of principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
3.01, if, after a deposit referred to in Section 15.04(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.12(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 15.04(a) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms of
any Security in respect of which the deposit pursuant to Section 15.04(a) has
been made, the indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 15.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Fifteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 15.04 with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
SECTION 15.06. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Fifteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fifteen with respect to Securities of such series until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 15.05 with respect to Securities of such series in
accordance with this Article Fifteen; provided, however, that if the Company
makes any payment of principal of (or premium, if any) or interest, if any, on
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any Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Securities of such
series to recover such payment from the money so held in trust.
ARTICLE SIXTEEN
CONVERSION OF SECURITIES
SECTION 16.01. Conversion Privilege and Conversion Price.
-----------------------------------------
If, pursuant to Section 3.01, the Securities of a series are convertible
into Common Stock, then, unless otherwise provided in a Board Resolution or
supplemental indenture, the provisions of this Article Sixteen shall apply with
respect to the conversion of such Securities.
If the Securities of a series are convertible into Common Stock, which shall
be specified in the manner contemplated in Section 3.01, then upon compliance
with the provisions of this Article, at the option of the Holder thereof, any
such Security or any portion of the principal amount thereof may be converted
into fully paid and nonassessable shares of Common Stock of the Company, at the
conversion price in effect at the time of conversion. The periods within which
or the dates on which, the prices at which and the terms and conditions upon
which Securities may be so converted shall be specified in the manner
contemplated by Section 3.01. In case a Security or portion thereof is called
for redemption or is repurchased, such conversion right in respect of the
Security or portion so called shall expire at the close of business on the
Redemption Date or the repurchase date, unless the Company defaults in making
the payment due upon redemption or repurchase.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in paragraph (4) of Section 16.04,
the Holder of each Security, upon the conversion thereof pursuant to this
Article subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution and prior to
the effectiveness of the conversion price adjustment in respect of such
distribution pursuant to paragraph (4) of Section 16.04, shall also be entitled
to receive for each share of Common Stock into which such Security is converted,
the portion of the evidences of indebtedness, shares of Capital Stock, cash and
assets so distributed applicable to one share of Common Stock, provided that, at
the election of the Company (whose election shall be evidenced by a Board
Resolution) with respect to all Holders so converting, the Company may, in lieu
of distributing to such Holder any portion of such distribution not consisting
of cash or securities of the Company, pay such Holder an amount in cash equal to
the fair market value thereof (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution). If any
conversion of a Security described in the immediately preceding sentence occurs
prior to the payment date for a distribution to holders of Common Stock that the
Holder of the Security so converted is entitled to receive in accordance with
the immediately preceding sentence, the Company may elect (such election to be
evidenced by a Board Resolution) to distribute to such Holder a due bill for the
evidences of indebtedness, shares of Capital Stock, cash or assets to which such
Holder is so entitled, provided that such due bill (i) meets any applicable
requirements of the principal national securities exchange or other market on
which the Common Stock is then traded and (ii) requires payment or delivery of
such evidences of indebtedness, shares of Capital Stock, cash or assets no later
than the date of payment or delivery thereof to holders of Common Stock
receiving such distribution.
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SECTION 16.02. Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege referred to in this Article
16, the Holder of any Security to be converted shall surrender such Security,
duly endorsed or assigned to the Company or in blank in the case of Registered
Securities, together in the case of Bearer Securities with all matured coupons
and any matured coupons in default appertaining thereto, at any office or agency
of the Company maintained for that purpose pursuant to Section 10.02,
accompanied by written notice to the Company at such office or agency that the
Holder elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted.
Registered Securities surrendered for conversion during the period from the
close of business on any Regular Record Date next preceding any Interest Payment
Date to the opening of business on such Interest Payment Date shall (except in
the case of Registered Securities or portions thereof that have been called for
redemption, or are to be repurchased, on such Interest Payment Date or a
Redemption Date or a repurchase date within the period beginning on such Regular
Record Date and ending on such Interest Payment Date) be accompanied by payment
by wire transfer or certified check or other funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on the
principal amount of the Registered Security then being converted. Except as
provided in the preceding sentence and subject to the last paragraph of Section
3.07, no payment or adjustment shall be made upon any conversion on account of
any interest accrued on the securities surrendered for conversion or on account
of any dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the person or persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 16.03.
In the case of any Security that is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security, along with any
coupons appertaining thereto, if applicable.
SECTION 16.03. Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares that shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or, in the case of Registered Securities,
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock that would otherwise be issuable upon conversion of any Security or
Securities (or, in the case of Registered Securities, specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction in
an amount equal to the same fraction of the Closing Price at the close of
business on the date of conversion.
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SECTION 16.04. Adjustment of Conversion Price.
------------------------------
(1) In case the Company shall pay or make a dividend or other distribution
on its Common Stock exclusively in stock or shall pay or make a dividend or
other distribution on any other class of Capital Stock of the Company which
dividend or distribution includes Common Stock, the conversion price in effect
at the opening of business on the day following the day fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion price by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day following
the date fixed for such determination. For the purposes of this paragraph (1),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company shall not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in case
the Company shall pay or make a dividend or other distribution on its Common
Stock consisting exclusively of, or shall otherwise issue to all holders of its
Common Stock, rights or warrants entitling the holders thereof to subscribe for
or purchase shares of Common Stock at a price per share less than the current
market price per share (determined as provided in paragraph (8) of this Section)
of the Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights or warrants, the conversion price in effect at
the opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered for subscription or
purchase would purchase at such current market price and the denominator shall
be the number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company.
(3) In the event that outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the conversion price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and,
conversely, in the event that outstanding shares of Common Stock shall each be
combined into a smaller number of shares of Common Stock, the conversion price
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in effect at the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such subdivision
or combination becomes effective.
(4) Subject to the last sentence of this paragraph (4) and the provisions
of paragraph (7), in the event that the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness,
shares of any class of Capital Stock, cash or other assets (including
securities, but excluding any rights or warrants referred to in paragraph (2) of
this Section, excluding any dividend or distribution paid exclusively in cash
and excluding any dividend or distribution referred to in paragraph (1) of this
section), the conversion price shall be reduced to be equal to the price
determined by multiplying the conversion price in effect immediately prior to
the effectiveness of the conversion price reduction contemplated by this
paragraph (4) by a fraction of which the numerator shall be the current market
price per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date of such effectiveness less the fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), on the date of such
effectiveness, of the portion of the evidences of indebtedness, shares of
Capital Stock, cash and other assets so distributed applicable to one share of
Common Stock and the denominator shall be such current market price per share of
the Common Stock, such reduction to become effective immediately prior to the
opening of business on the day following the later of (a) the date fixed for the
payment of such distribution and (b) the date 20 days after the notice relating
to such distribution is given pursuant to Section 16.06(a) (such later date of
(a) and (b) being referred to as the "Reference Date"). If the Board of
Directors determines the fair market value of any distribution for purposes of
this paragraph (4) by reference to the actual or when issued trading market for
any securities comprising such distribution, it must in doing so consider the
prices in such market over the same period used in computing the current market
price per share pursuant to paragraph (8) of this Section. For purposes of this
paragraph (4), any dividend or distribution that includes shares of Common
Stock, rights or warrants to subscribe for or purchase shares of Common Stock or
other securities convertible into or exchangeable for shares of Common Stock
shall be deemed instead to be (a) a dividend or distribution of the evidences of
indebtedness, cash, assets or shares of Capital Stock other than such shares of
Common Stock, such rights or warrants or such other convertible or exchangeable
securities (making any conversion price reduction subject to this paragraph
(4)), immediately followed by (b) in the case of such shares of Common Stock or
such rights or warrants, a dividend or distribution thereof (making any further
conversion price reduction subject to paragraph (1) or (2) of this Section,
except (i) the Reference Date of such dividend or distribution as defined in
this paragraph (4) shall be substituted for "the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution" or "the date fixed for determination of stockholders entitled to
receive such rights or warrants" and "the date fixed for such determination"
within the meaning of paragraphs (1) and (2) of this Section and (ii) any shares
of Common Stock included in such dividend or distribution shall not be deemed
"outstanding at the close of business on the date fixed for such determination"
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within the meaning of paragraph (1) of this Section) or (c) in the case of such
other convertible or exchangeable securities, a dividend or distribution of such
number of shares of Common Stock as would then be issuable upon the conversion
or exchange thereof, whether or not the conversion or exchange of such
securities is subject to any conditions (making any further conversion price
reduction subject to paragraph (1) of this Section, except (i) the Reference
Date of such dividend or distribution as defined in this paragraph (4) shall be
substituted as "the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution" and "the date fixed for such
determination" and (ii) the shares deemed to constitute such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination", each within the meaning of paragraph (1) of
this Section).
(5) Intentionally ommitted.
(6) Intentionally ommitted.
(7) The reclassification of Common Stock into any security or securities
other than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 16.11 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be the
"Reference Date" within the meaning of paragraph (4) of this Section), and (b) a
subdivision or combination, as the case may be, of the shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
becomes effective", or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section). Rights
or warrants issued by the Company to all holders of its Common Stock entitling
the holders thereof to subscribe for or purchase shares of Common Stock or
preferred stock of the Company, which rights or warrants (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuance of Common Stock, in the case of
each of clauses (i) through (iii), until the occurrence of a specified event or
events ("Trigger Event"), shall for purposes of this Section 16.04 not be deemed
issued and the distribution thereof not be deemed made or paid until the
occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under this paragraph and paragraphs
(2) and (4) of this Section, the current market price per share of Common
Stock on any date shall be deemed to be the average of the Closing Prices for
the five consecutive Trading Days selected by the Company commencing not more
than 20 Trading Days before, and ending not later than, the date in question;
provided, that such market price shall be appropriately adjusted by the Board
(which adjustment shall be conclusive and shall be evidenced by a Board
Resolution) to take into account the occurrence, during the period commencing on
the first of such Trading Days during such five Trading Day period and ending on
the date in question, of any event that requires an adjustment in the conversion
price under this Section 16.04.
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(9) The Company may make such reductions in the conversion price, in
addition to those required by this Section, as it considers to be advisable in
order that any event treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
(10) No adjustment in the conversion price shall be required unless such
adjustment (plus any adjustments not previously made by reason of this paragraph
(10)) would require an increase or decrease of at least 1% in the conversion
price; provided, however, that any adjustments which by reason of this paragraph
(10) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this paragraph (10) shall
be made to the nearest percent.
(11) Notwithstanding any other provision of this Section 16.04, no
adjustment to the conversion price shall (unless permitted by New Jersey law)
reduce the conversion price below the then par value per share of the Common
Stock, and any such purported adjustment shall instead reduce the conversion
price to such par value. The Company hereby covenants not to take any action
that would or does result in any adjustment in the conversion price that, if
made without giving effect to the previous sentence, would cause the conversion
price to be less than the then par value per share of the Common Stock, unless
such action is permitted by New Jersey law.
(12) If all of the shares of the Common Stock issuable upon exercise or
conversion of such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the conversion price shall promptly be
readjusted to the conversion price which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options have been made
on the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
SECTION 16.05. Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the conversion prices are adjusted as herein provided and at such
other times as the Trustee shall request:
(a) the Company shall compute the adjusted conversion price in
accordance with Section 16.04 and shall prepare a certificate signed by the
Chief Financial Officer of the Company setting forth the adjusted conversion
price and showing in reasonable detail the facts upon which such adjustment
is based, and such certificate shall forthwith be delivered to the Trustee
and filed at each office or agency maintained for the purpose of conversion
of Securities pursuant to Section 10.02. The certificate shall be
conclusive evidence that the adjustment is correct. The Trustee shall not
be under any duty or responsibility with respect to any such certificate
except to exhibit the same to any Holder desiring inspection thereof, and
(b) a notice stating that the conversion price has been adjusted and
setting forth the adjusted conversion price shall forthwith be required,
and, when the conversion price is adjusted, as soon as practicable after it
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is required, the Company shall cause such notice to be mailed to all Holders
of Registered Securities at their last address as they shall appear in the
Security Register.
SECTION 16.06 Notice of Certain Corporate Action.
----------------------------------
In the event:
(a) that the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
(b) that the Company shall authorize the granting to the holders of
its Common Stock generally of rights or warrants to subscribe for or
purchase any shares of Capital Stock of any class or of any other rights; or
(c) of the occurrence of any reclassification of the Common Stock of
the Company (other than a subdivision or combination of the outstanding
shares of Common Stock), or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the Company
is required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company.
then the Company shall notify the Trustee and cause to be filed at each office
or agency maintained for the purpose of conversion of securities pursuant to
Section 10.02, and shall cause to be mailed to all Holders of Registered
Securities which are subject to the provisions of this Article Sixteen, at their
last addresses as they shall appear in the Security Register, at least 20 days
(or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution,
rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution,
rights or warrants are to be determined or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
SECTION 16.07. Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Securities.
SECTION 16.08. Taxes on Conversions.
--------------------
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The Company will pay any and all taxes, other than any franchise or income
taxes, that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. The Company shall
not, however, be required to pay any tax that may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
SECTION 16.09. Covenant as to Common Stock.
---------------------------
The Company covenants that all shares of Common Stock that may be issued
upon conversion of Securities will upon issue be fully paid and nonassessable
and, except as provided in Section 16.08, the Company will pay all taxes, liens
and charges with respect to the issue thereof.
SECTION 16.10. Cancellation of Converted Securities, etc.
------------------------------------------
All Securities delivered for conversion shall be delivered to the Trustee to
be canceled by or at the direction of the Trustee, which shall dispose of the
same as provided in Section 3.10.
SECTION 16.11. Provision in the Case of Consolidation, Merger or
-------------------------------------------------
Sales of Assets.
---------------
In the event of any consolidation of the Company with, or merger of the
Company into, any other corporation, or in the event of any merger of another
corporation into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), or in the event of any sale or transfer of all or
substantially all of the assets of the Company, the corporation formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security subject to the provisions
of this Article Sixteen then outstanding shall have the right thereafter, during
the period such Security shall be convertible as specified in Section 16.01, to
convert such Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by a
holder of the number of shares of Common Stock of the Company into which such
Security might have been converted immediately prior to such consolidation,
merger, sale or transfer, assuming such holder of Common Stock of the Company
failed to exercise its rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer is
not the same for each share of Common Stock in respect of which such rights of
election shall not have been exercised ("non-electing share"), then for the
purpose of this Section, the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares).
Such supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as
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nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
SECTION 16.12. Trustee's Adjustment Disclaimer.
-------------------------------
The Trustee has no duty to determine when an adjustment under this Article
16 should be made, how it should be made or what it should be. The Trustee has
no duty to determine whether a supplemental indenture under Section 16.11 need
be entered into or whether any provisions of any supplemental indenture are
correct. The Trustee shall not be accountable for and makes no representation
as to the validity or value of any securities or assets issued upon conversion
of Securities. The Trustee shall not be responsible for the Company's failure
to comply with the Article 16.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BERGEN BRUNSWIG CORPORATION
By___________________________________
Attest
______________________________
CHEMICAL TRUST COMPANY OF
CALIFORNIA, as Trustee
By___________________________________
Attest
______________________________
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STATE OF CALIFORNIA
COUNTY OF ORANGE
On the _____ day of _____________, 1996 before me personally appeared
______________ to me known, who, being by me duly sworn, did depose and say that
he resides at _______________________________, California and that he is
______________ of Bergen Brunswig Corporation, one of the corporations described
in and which executed the foregoing instrument; and that he signed his name
thereto by authority of the board of directors of Bergen Brunswig Corporation.
________________________________
Notary Public
________________________________
(Notarial Seal)
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STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
On the _____ day of _____________, 1996 before me personally came
_____________ to me known, who, being by me duly sworn, did depose and say that
he resides at _______________________________, California and that he is
____________ of Chemical Trust Company of California, one of the parties
described in and which executed the above instrument; and that he signed his
name thereto by authority of the board of directors of Chemical Trust Company of
California.
________________________________
Notary Public
________________________________
(Notarial Seal)
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FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States Person(s) that are
(a) foreign branch(es) of United States financial Institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v), are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own behalf or through its
agent, that you may advise Bergen Brunswig Corporation, or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Codes of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (including the Commonwealth of Puerto
Rico).
A-1-1
<PAGE>
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] ______________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________________, 19 __
[To be dated no earlier than (i) the
Exchange Date or (ii) the relevant
Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
_______________________________
(Authorized Signatory)
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the persons appearing in our records as persons entitled to a portion of the
principal amount set forth below (our "Member Organizations") substantially in
the form attached hereto, as of the date hereof, [U.S.$]_________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v), are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Bergen Brunswig
Corporation or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (including the
Commonwealth of Puerto Rico).
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
A-2-1
<PAGE>
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.
Dated: ______________, 19__
[To be dated no earlier than the
Exchange Date or the relevant
Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[Cedal S.A.]
By_______________________________
A-2-2
EXHIBIT 4.5
BERGEN BRUNSWIG CORPORATION
TO
CHEMICAL TRUST COMPANY OF CALIFORNIA,
as Trustee
___________________________
Indenture
Dated as of March 1, 1996
___________________________
Subordinated Debt Securities
<PAGE>
<TABLE>
<CAPTION>
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
- ------- ---------
<S> <C>
310 (a)(1) ............................................... 6.09
(a)(2) ............................................... 6.09
(a)(3) ............................................... N.A.
(a)(4) ............................................... N.A.
(a)(5) ............................................... 6.09
(b) ............................................... 6.08
(c) ............................................... N.A.
311 (a) ............................................... 6.13
(b) ............................................... 6.13
(c) ............................................... N.A.
312 (a) ............................................... 7.01, 7.02
(b) ............................................... 7.02
(c) ............................................... 7.02
313 (a) ............................................... 7.03
(b) ............................................... 7.03
(c) ............................................... 7.03
(d) ............................................... 7.03
314 (a) ............................................... 7.04, 10.06
(b) ............................................... N.A.
(c)(1) ............................................... 1.02
(c)(2) ............................................... 1.02
(c)(3) ............................................... N.A.
(d) ............................................... N.A.
(e) ............................................... 1.02
315 (a) ............................................... 6.01 (a)
(b) ............................................... 6.02, 7.03
(c) ............................................... 6.01 (b)
(d) ............................................... 6.01 (c)
(e) ............................................... 5.14
316 (a)(last sentence) ..................................... 1.01("outstanding")
(a)(1)(A)............................................... 5.12
(a)(1)(B)............................................... 5.13
(a)(2) ............................................... N.A.
(b) ............................................... 5.08
(c) ............................................... 1.04
317 (a)(1) ............................................... 5.03
(a)(2) ............................................... 5.04
(b) ............................................... 10.03
318 (a) ............................................... 1.07
N.A. means Not Applicable.
- ----------------------
<FN>
1 This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
</TABLE>
- i -
<PAGE>
TABLE OF CONTENTS (1)
PAGE
----
PARTIES................................................................. 1
RECITALS OF THE COMPANY................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01............................................................ 1
Definitions:
Act................................................................. 2
Affiliate........................................................... 2
Authenticating Agent................................................ 2
Authorized Newspaper................................................ 2
Bearer Security..................................................... 2
Board of Directors; Board........................................... 3
Board Resolution.................................................... 3
Business Day........................................................ 3
Capital Stock....................................................... 3
CEDEL; CEDEL SA..................................................... 3
Closing Price....................................................... 3
Commission.......................................................... 3
Common Stock........................................................ 4
Company............................................................. 4
Company Request; Company Order...................................... 4
Component Currency.................................................. 4
Conversion Date..................................................... 4
Conversion Event.................................................... 4
Corporate Trust Office.............................................. 4
corporation......................................................... 4
coupon.............................................................. 4
Covenant Defeasance................................................. 4
Currency; currency.................................................. 4
Defaulted Interest.................................................. 4
Defeasance.......................................................... 4
Defeasible Series................................................... 4
Depositary.......................................................... 5
Designated Currency................................................. 5
Dollar; $........................................................... 5
Dollar Equivalent................................................... 5
ECU................................................................. 5
Election Date....................................................... 5
Euroclear........................................................... 5
European Communities................................................ 5
_____________________
[FN]
1 This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
- ii -
<PAGE>
European Monetary System............................................ 5
Event of Default.................................................... 5
Exchange Act........................................................ 5
Exchange Date....................................................... 5
Exchange Rate Agent................................................. 5
Exchange Rate Officer's Certificate................................. 5
Foreign Currency.................................................... 6
Global Security..................................................... 6
Holder.............................................................. 6
Indenture........................................................... 6
Indexed Security.................................................... 6
interest............................................................ 6
Interest Payment Date............................................... 6
Market Exchange Rate................................................ 6
Maturity............................................................ 7
non-electing share.................................................. 7
Notice of Default................................................... 7
Officers' Certificate............................................... 7
Opinion of Counsel.................................................. 7
Original Issue Discount Security.................................... 7
Outstanding......................................................... 7
Paying Agent........................................................ 8
Person.............................................................. 9
Place of Payment.................................................... 9
Predecessor Security................................................ 9
Redemption Date..................................................... 9
Redemption Price.................................................... 9
Reference Date...................................................... 9
Registered Security................................................. 9
Regular Record Date................................................. 9
Remarketing Entity.................................................. 9
Repayment Date...................................................... 9
Repayment Price..................................................... 9
Responsible Officer................................................. 9
Securities.......................................................... 10
Security Register; Security Registrar............................... 10
Senior Indebtedness................................................. 10
Senior Indebtedness Default......................................... 10
Special Record Date................................................. 10
Specified Amount.................................................... 10
Stated Maturity..................................................... 10
Subsidiary.......................................................... 10
Trading Day......................................................... 11
Trigger Event....................................................... 11
Trustee............................................................. 11
Trust Indenture Act; TIA............................................ 11
United States....................................................... 11
United States Alien................................................. 11
U.S. Government Obligations......................................... 11
Valuation Date...................................................... 12
Vice President...................................................... 12
- iii -
<PAGE>
SECTION 1.02. Compliance Certificates and Opinions..................... 12
SECTION 1.03. Form of Documents Delivered to Trustee................... 12
SECTION 1.04. Acts of Holders; Record Dates............................ 13
SECTION 1.05. Notices, Etc., to Trustee and Company.................... 15
SECTION 1.06. Notice to Holders; Waiver................................ 15
SECTION 1.07. Conflict with Trust Indenture Act........................ 16
SECTION 1.08. Effect of Headings and Table of Contents................. 17
SECTION 1.09. Successors and Assigns................................... 17
SECTION 1.10. Separability Clause...................................... 17
SECTION 1.11. Benefits of Indenture.................................... 17
SECTION 1.12. Governing Law............................................ 17
SECTION 1.13. Legal Holidays........................................... 17
SECTION 1.14. Counterparts............................................. 18
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.......................................... 18
SECTION 2.02. Form of Trustee's Certificate of Authentication.......... 18
SECTION 2.03. Securities Issuable in Global Form....................... 19
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series..................... 20
SECTION 3.02. Denominations............................................ 23
SECTION 3.03. Execution, Authentication, Delivery and Dating........... 23
SECTION 3.04. Temporary Securities..................................... 26
SECTION 3.05. Registration; Registration of Transfer and Exchange...... 28
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities......... 32
SECTION 3.07. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset........................................... 33
SECTION 3.08. Optional Extension of Maturity........................... 36
SECTION 3.09. Persons Deemed Owners.................................... 37
SECTION 3.10. Cancellation............................................. 37
SECTION 3.11. Computation of Interest.................................. 38
SECTION 3.12. Currency and Manner of Payments in Respect of Securities. 38
SECTION 3.13. Appointment and Resignation of Successor Exchange
Rate Agent............................................... 41
SECTION 3.14. CUSIP Numbers............................................ 42
SECTION 3.15. Certification by a Person Entitled to Delivery of
Bearer Security.......................................... 42
SECTION 3.16. Judgments................................................ 42
SECTION 3.17. Medium Term Securities................................... 43
ARTICLE FOUR
SATISFACTION AND DISCHARGE
- iv -
<PAGE>
SECTION 4.01. Satisfaction and Discharge of Indenture.................. 43
SECTION 4.02. Application of Trust Money............................... 45
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default........................................ 45
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment....... 47
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................... 48
SECTION 5.04. Trustee May File Proofs of Claim......................... 49
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities or Coupons.................................... 50
SECTION 5.06. Application of Money Collected........................... 50
SECTION 5.07. Limitation on Suits...................................... 51
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................... 51
SECTION 5.09. Restoration of Rights and Remedies....................... 52
SECTION 5.10. Rights and Remedies Cumulative........................... 52
SECTION 5.11. Delay or Omission Not Waiver............................. 52
SECTION 5.12. Control by Holders....................................... 52
SECTION 5.13. Waiver of Past Defaults.................................. 53
SECTION 5.14. Undertaking for Costs.................................... 53
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.................. 53
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities...................... 54
SECTION 6.02. Notice of Defaults....................................... 55
SECTION 6.03. Certain Rights of Trustee................................ 55
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities... 57
SECTION 6.05. May Hold Securities...................................... 57
SECTION 6.06. Money Held in Trust...................................... 57
SECTION 6.07. Compensation and Reimbursement........................... 57
SECTION 6.08. Disqualification; Conflicting Interests.................. 58
SECTION 6.09. Corporate Trustee Required; Eligibility.................. 59
SECTION 6.10. Resignation and Removal; Appointment of Successor........ 59
SECTION 6.11. Acceptance of Appointment by Successor................... 61
- v -
<PAGE>
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business.............................................. 62
SECTION 6.13. Preferential Collection of Claims Against Company........ 62
SECTION 6.14. Appointment of Authenticating Agent...................... 63
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders............................................... 64
SECTION 7.02. Preservation of Information; Communications to Holders... 65
SECTION 7.03. Reports by Trustee....................................... 65
SECTION 7.04. Reports by Company....................................... 65
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms..... 66
SECTION 8.02. Successor Person Substituted............................. 66
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders....... 67
SECTION 9.02. Supplemental Indentures with Consent of Holders.......... 68
SECTION 9.03. Execution of Supplemental Indentures..................... 69
SECTION 9.04. Effect of Supplemental Indentures........................ 70
SECTION 9.05. Conformity with Trust Indenture Act...................... 70
SECTION 9.06. Reference in Securities to Supplemental Indentures....... 70
SECTION 9.07 Notice of Supplemental Indenture......................... 70
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest............... 70
SECTION 10.02. Maintenance of Office or Agency.......................... 71
SECTION 10.03. Money for Securities Payments to Be Held in Trust........ 72
SECTION 10.04. Purchase of Securities by Company or Subsidiary.......... 73
SECTION 10.05. Payment of Additional Amounts............................ 73
SECTION 10.06. Statement by Officers as to Default...................... 74
SECTION 10.07. Existence................................................ 74
- vi -
<PAGE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article................................. 75
SECTION 11.02. Election to Redeem; Notice to Trustee.................... 75
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed........ 75
SECTION 11.04. Notice of Redemption..................................... 76
SECTION 11.05. Deposit of Redemption Price.............................. 77
SECTION 11.06. Securities Payable on Redemption Date.................... 77
SECTION 11.07. Securities Redeemed in Part.............................. 79
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article................................. 78
SECTION 12.02. Provisions with Respect to any Sinking Funds............. 79
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.01. Applicability of Article................................. 80
SECTION 13.02. Repayment of Securities.................................. 80
SECTION 13.03. Exercise of Option; Notice............................... 80
SECTION 13.04. Election of Repayment by Remarketing Entities............ 81
SECTION 13.05. Securities Payable on the Repayment Date................. 81
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.01. Purposes for Which Meetings May Be Called................ 82
SECTION 14.02. Call, Notice and Place of Meetings....................... 82
SECTION 14.03. Persons Entitled to Vote at Meetings..................... 82
SECTION 14.04. Quorum; Action........................................... 83
SECTION 14.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings.............................................. 83
SECTION 14.06. Counting Votes and Recording Action of Meetings.......... 84
- vii -
<PAGE>
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Company's Option to Effect Defeasance or
Covenant Defeasance...................................... 85
SECTION 15.02. Defeasance and Discharge................................. 85
SECTION 15.03. Covenant Defeasance...................................... 86
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance.......... 86
SECTION 15.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions............ 87
SECTION 15.06. Reinstatement............................................ 88
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 16.01. Securities Subordinate to Senior Indebtedness............ 89
SECTION 16.02 Payment over of Proceeds upon Dissolution, Etc........... 89
SECTION 16.03 Default on Senior Indebtedness........................... 91
SECTION 16.04 Prior Payment to Senior Indebtness Upon
Acceleration of Securities............................... 91
SECTION 16.05 Payment Permitted if No Default.......................... 92
SECTION 16.06 Subrogation to Rights of Holders of Senior Indebtedness.. 92
SECTION 16.07 Provisions Solely to Define Relative Rights.............. 93
SECTION 16.08 Trustee to Effectuate Subordination...................... 93
SECTION 16.09 No Waiver of Subordination Provisions.................... 93
SECTION 16.10 Notice to Trustee........................................ 94
SECTION 16.11 Reliance on Judicial Order or Certificate of
Liquidating Agent........................................ 95
SECTION 16.12 Trustee Not Fiduciary for Holders of Senior Indebtedness. 95
SECTION 16.13 Rights of Trustee as Holders of Senior Indebtedness;
Preservation of Trustee's Rights......................... 95
SECTION 16.14 Article Sixteen Applicable to Paying Agents.............. 96
ARTICLE SEVENTEEN
CONVERSION OF SECURITIES
SECTION 17.01 Conversion Privilege and Conversion Price................ 96
SECTION 17.02 Exercise of Conversion Privilege......................... 97
SECTION 17.03 Fractions of Shares...................................... 98
SECTION 17.04 Adjustment of Conversion Price........................... 98
SECTION 17.05 Notice of Adjustments of Conversion Price................ 101
SECTION 17.06 Notice of Certain Corporate Action....................... 102
- viii -
<PAGE>
SECTION 17.07 Company to Reserve Common Stock.......................... 103
SECTION 17.08 Taxes on Conversions..................................... 103
SECTION 17.09 Covenant as to Common Stock.............................. 103
SECTION 17.10 Cancellation of Converted Securities, etc................ 103
SECTION 17.11 Provision in the Case of Consolidation,
Merger or Sales of Assets................................ 103
SECTION 17.12 Trustee's Adjustment Disclaimer.......................... 104
TESTIMONIUM............................................................. 104
SIGNATURES AND SEALS.................................................... 104
ACKNOWLEDGMENTS......................................................... 106
FORMS OF CERTIFICATION.................................................. A-1-1
- ix -
<PAGE>
THIS INDENTURE, dated as of March 1, 1996, is between BERGEN BRUNSWIG
CORPORATION, a New Jersey corporation having offices at 4000 Metropolitan Drive,
Orange, California 92668-3510 (herein called the "Company"), and CHEMICAL TRUST
COMPANY OF CALIFORNIA, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured subordinated
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of one or more series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
-----------
For all purposes of this Indenture and of any indenture supplemental hereto,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, or by
Commission rule or regulation under the TIA, either directly or by reference
therein, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05, have the meanings assigned to them
therein; the terms "cash transaction" and "self-liquidating" paper, as used
in TIA Section 311, shall have the meanings assigned to them in the rules of
the Commission adopted under the TIA; and the following TIA terms used in
this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means the Holder;
- 1 -
<PAGE>
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such computation;
(4) the words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain other terms are defined elsewhere herein.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, partnerships or other
ownership interests, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
- 2 -
<PAGE>
"Bearer Security" means any Security established pursuant to Section 2.01
which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Security in global bearer form.
"Board of Directors" or "Board" means either the board of directors of the
Company or any duly authorized committee of such board or any committee of
officers of the Company acting pursuant to authority granted by such board or
any committee of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms
thereof), such action may be taken by any committee of the Board of Directors or
the Company or any officer or employee of the Company authorized to take such
action by a Board Resolution.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
S.A., or its successor.
"Closing Price" for any day means the last reported sale price of the Common
Stock regular way on such day or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked prices regular way
on such day, in either case on the New York Exchange or, if the Common Stock is
not listed or admitted to trading on such exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange, on
the NASDAQ National Market System or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System, the average of the closing bid and asked prices in the
over-the- counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose. If the Common Stock
is not listed or admitted to trading on any national securities exchange, quoted
on such National Market System or listed in any list of bid and asked prices in
the over-the-counter market, "Closing Price" shall mean the fair market value of
the Common Stock as determined in good faith by the Board of Directors.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
- 3 -
<PAGE>
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" shall mean the Class A Common Stock, par value $1.50 per
share of the Company as it exists on the date of this Indenture or any other
shares of Capital Stock of the Company into which such Class A Common Stock
shall be reclassified or changed.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person. The foregoing sentence shall likewise apply to any
subsequent such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 3.12(h).
"Conversion Date" has the meaning specified in Section 3.12(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency both
by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee in San Francisco,
California at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 50 California
Street, San Francisco, California 94111.
"corporation" means a corporation, association, company, joint stock company
or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 15.03.
"Currency" or "currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 15.02.
"Defeasible Series" has the meaning specified in Section 15.01.
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"Depositary" means, with respect to the Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.01 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Designated Currency" has the meaning specified in Section 3.16.
"Dollar" or "$" means a dollar or other equivalent within the coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"Dollar Equivalent" has the meanings specified in paragraphs (f) and (g) of
Section 3.12.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.12(h).
"Euroclear" means Morgan Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established by
the Resolution of December 5, 1978 of the Council of the European Communities.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor thereto, and the rules and regulations
promulgated thereunder.
"Exchange Date" shall have the meaning specified in Section 3.04(b).
"Exchange Rate Agent" shall mean the person designated pursuant to Section
3.01(17).
"Exchange Rate Officer's Certificate", means a certificate setting forth the
applicable Market Exchange Rate or applicable bid quotation and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest on Securities denominated in ECU and other
composite Currency or Foreign Currency, and signed by the Chairman of the Board,
the President, any Vice President, the Treasurer or any Assistant Treasurer of
the Company or the Exchange Rate Agent appointed pursuant to Section 3.01, and
delivered to the Trustee.
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"Foreign Currency" means any Currency, including, without limitation, the
ECU issued by the government of one or more countries other than the United
States or by any recognized confederation or association of such governments.
"Global Security" means a Security evidencing all or part of a series of
Securities, authenticated and delivered to the Depositary for such series or its
nominee, and registered in the name of such Depositary or nominee, in accordance
with Section 3.03.
"Holder" means, with respect to a Registered Security, a Person in whose
name a Registered Security is registered in the Security Register and, with
respect to a Bearer Security, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 3.01.
"Indexed Security" means a Security as to which all or certain interest
payments and/or the principal amount payable at Maturity are determined by
reference to prices, changes in prices, or differences between prices, or
securities or Currencies as specified pursuant to Section 3.01 hereof.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security, and, when used
with respect to a Security which provides for the payment of additional amounts
pursuant to Section 10.05, includes such additional amounts.
"Market Exchange Rate" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, (i) for any conversion involving a Currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case as
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determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 3.01, in the event of the unavailability
of any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or other principal market for such currency or currency
unit in question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether on a Repayment Date, at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"non-electing share" shall have the meaning specified in Section 17.11.
"Notice of Default" means a written notice of the kind specified in Section
5.01(4) or 5.01(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or any Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or any Assistant Secretary, of the Company, and
delivered to the Trustee, which shall comply with Section 1.02 to the extent
applicable.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company, and who shall be acceptable to the
Trustee such acceptance, which shall comply with Section 1.02 to the extent
applicable.
"Original Issue Discount Security" means any (i) Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02 and
(ii) other Security deemed an original issue discount security for United
States federal income tax purposes.
"Outstanding", when used with respect to Securities of a particular series,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(1) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
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(2) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities in accordance with Section 4.01; provided
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) such Securities as to which Defeasance has been effected pursuant
to Section 15.02 or 15.03; and
(4) such Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a Person in whose hands
such Securities are legal, valid and binding obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (A) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, (B) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such Security is
originally issued by the Company as set forth in an Exchange Rate Officer's
Certificate delivered to the Trustee, of the principal amount (or in the case of
an Original Issue Discount Security or Indexed Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in
clause (A) above or (C) below, respectively) of such Security, (C) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such purpose shall
be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 3.01, and (D) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (or any premium) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Sections 3.01 and 10.02, or if no such place shall be specified, at the offices
of the Paying Agent.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Date" shall have the meaning specified in Section 17.04(4).
"Registered Security", means any Security in the form of Registered
Securities established pursuant to Section 2.01 which is registered in the
Security Register.
"Regular Record Date", for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Remarketing Entity", when used with respect to Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of an option for repayment by the Holder, means the date fixed for such
repayment.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of an option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
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"Responsible Officer", means the President or any Vice President, Assistant
Vice President or Trust Officer of the Trustee to whom any matter has been
referred because of such officer's knowledge and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any, on (a) all indebtedness of the Company (including indebtedness
of others guaranteed by the Company) (other than (w) the Securities, (x)
indebtedness outstanding under the indenture between the Company and Chemical
Trust Company of California ("Chemical") dated as of July 15, 1986, (y) the
subordinated indenture between the Company and Chemical dated as of December 1,
1992 and (z) indebtedness as to which the instruments creating or evidencing the
same provide that such indebtedness is not senior in right or payment to the
Securities (collectively, the "Pari Passu Debt")), whether outstanding on the
date of this Indenture or hereafter created, incurred or assumed, that is (i)
for money borrowed or (ii) evidenced by a note or similar instrument given in
connection with the acquisition of any businesses, properties or assets of any
kind, except in the ordinary course of business, (b) obligations of the Company
as lessee under leases required to be capitalized on the consolidated balance
sheet of the Company under generally accepted accounting principles or leases of
property made as part of any sale and leaseback transaction to which the Company
is a party and (c) amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations; unless in any case referred
to in clauses (a), (b) or (c) above, in the instrument creating or evidencing
any such indebtedness or obligation or pursuant to which the same is outstanding
it is provided that such indebtedness or obligation is not superior in right of
payment to the Securities or to any Pari Passu Debt.
"Senior Indebtedness Default" means the happening of an event of default
with respect to any Senior Indebtedness, as defined therein or in the instrument
under which the same is outstanding, which, if occurring prior to the stated
maturity of such Senior Indebtedness, permits any holder thereof (immediately,
or with notice, lapse of time or both) to accelerate the maturity thereof.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section 3.12(h).
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"Stated Maturity", when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as amended in
accordance with the terms hereof.
"Subsidiary" shall mean (i) a corporation, a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries, or (ii) a partnership in which the Company or a Subsidiary of the
Company is at the date of determination, a general partner of such partnership,
or (iii) any other Person (other than a corporation or a partnership) in which
the Company, a Subsidiary of the Company or the Company and one or more
Subsidiaries of the Company, directly or indirectly, at the date of
determination, has (x) at least a majority ownership interest or (y) the power
to elect or direct the election of a majority of the directors or other
governing body of such Person. For the purposes of this definition, the term
"voting stock" means stock having ordinary voting power for the election of
directors irrespective of whether or not stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency.
"Trading Day" means, with respect to the Common Stock, each Monday, Tuesday,
Wednesday, Thursday and Friday, other than any day on which securities are not
traded on the exchange or market on which the Common Stock is traded.
"Trigger Event" shall have the meaning specified in Section 17.04(7).
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean each Trustee with respect to Securities of that series.
"Trust Indenture Act", or "TIA", means the Trust Indenture Act of 1939 and
the rules and regulations promulgated thereunder as in force at the date as of
which this instrument was executed, except as provided in Section 9.05;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" or "TIA" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended and the rules
and regulations promulgated thereunder.
"United States" means the United States of America (including the District
of Columbia) and its possessions and territories and other areas subject to its
jurisdiction (including the Commonwealth of Puerto Rico).
"United States Alien" means any Person who, for United States Federal income
tax purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government Obligation or a
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specific payment of any interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of any interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Valuation Date" has the meaning specified in Section 3.12(c).
"Vice President", when used with respect to the Company or the Trustee,
means any elected vice president, whether or not designated by a word or words
added before the title "Vice President".
SECTION 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture (other than delivery of any
Security to the Trustee for authentication pursuant to Section 3.03), the
Company shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture. In the case of any such application
or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, however, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 10.06)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
--------------------------------------
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In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable in whole or in
part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities duly
called and held in accordance with the provisions of Article Fourteen, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are received by the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 14.06.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness to such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
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by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(b) The ownership of Registered Securities shall be proved by the Security
Register.
(c) The ownership, principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), if such record date is fixed by Board Resolution, such record date shall
be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. In the event no such record date is fixed
by Board Resolution, such record date shall be the later of 10 days prior to the
first solicitation of such action or the date of the most recent list of Holders
furnished to the Trustee pursuant to Section 7.01. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
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of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date, and that no such authorization, agreement or
consent may be amended, withdrawn or revoked once given by a Holder, unless the
Company shall provide for such amendment, withdrawal or revocation in
conjunction with such solicitation of authorizations, agreements or consents or
unless and to the extent required by law.
Without limiting the foregoing, a Holder entitled hereunder to give or take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
SECTION 1.05. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument, Attention: Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed
for the giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner herein
- 15 -
<PAGE>
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 3.01, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in the City
of New York and, if a Responsible Officer has actual knowledge that the
Securities of such series are then listed on the International Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, in London, and, if a Responsible Officer has actual knowledge that the
Securities of such series are then listed on the Luxembourg Stock Exchange and
such stock exchange shall so require, in Luxembourg and, if a Responsible
Officer has actual knowledge that the Securities of such series are then listed
on any other stock exchange outside the United States and such stock exchange
shall so require, in any other required city outside the United States or, if
not practicable, in Europe on a Business Day at least twice, the first such
publication to be not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice, and in such other city
or cities as may be specified in such Securities on a Business Day, such
publication to be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of such publication or, if published
more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be given with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture or any Security provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.07. Conflict with Trust Indenture Act.
---------------------------------
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<PAGE>
If any provision hereof limits, qualifies or conflicts with a provision of
the TIA that is required under such Act to be a part of and govern this
Indenture, the TIA provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA 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 1.08. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Paying Agent, Security Registrar and Authenticating
Agent, the holders of Senior Indebtedness and the Holders of the Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
-------------
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the State of New York, but without
regard to principles of conflicts of law.
SECTION 1.13. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities or coupons (other than a provision of the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section)) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, Repayment
Date, Stated Maturity or Maturity, provided that no interest shall accrue for
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the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity, as the case may be.
SECTION 1.14. Counterparts.
------------
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
---------------
The Registered Securities, if any, and the Bearer Securities and related
coupons, if any, of each series shall be in substantially such form (including
temporary or permanent global form) as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or market or as may, consistently herewith, be determined by the officers
executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If the form of Securities of any series or coupons is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities other than Securities in temporary or permanent global form shall
have coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication on each Security shall be in
substantially the following form:
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<PAGE>
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
____________________________________
, as Trustee
By:_________________________________
(Authorized Officer)
SECTION 2.03. Securities Issuable in Global Form.
----------------------------------
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 3.01, then, notwithstanding clause (9) of
Section 3.01 and the provisions of Section 3.02, any such Global Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 3.03 or 3.04. Subject to the provisions of
Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.03 or 3.04
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement, delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.03(g) shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03(g).
Notwithstanding the provisions of Section 3.07, unless otherwise specified
as contemplated by Section 3.01, payment of principal of (and premium, if any)
and interest, if any, on any permanent Global Security shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.09 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent Global Security (i) in the case of a
permanent Global Security in registered form, the Holder of such permanent
Global Security in registered form, or (ii) in the case of a permanent Global
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<PAGE>
Security in bearer form, Euroclear, CEDEL or such other Person as may be known
to the Trustee to be the bearer thereof.
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities shall rank equally and pari passu and may be issued in one or
more series. The Securities shall not be superior in right of payment to any
securities issued pursuant to the subordinated indentures between the Company
and Chemical dated as of July 15, 1986 and December 1, 1992 (the "Prior
Subordinated Indentures") or to any indebtedness defined in the Prior
Subordinated Indentures as "pari passu debt". There shall be established in or
pursuant to a Board Resolution, and, subject to Section 3.03, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters in clauses (1) and (2)), if so provided, may be
determined by the Company with respect to unissued Securities of the series when
issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series) and a
statement of the nature and extent of the subordination to which the
Securities are subject;
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.03 and except
for any Securities which, pursuant to Section 3.03, are deemed never to have
been authenticated and delivered hereunder);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities (and
premium, if any), of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, or the method or methods by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall accrue,
or the method by which such date or dates will be determined or extended,
the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Registered Security
on any Interest Payment Date, the circumstances, if any, in which the
Company may defer interest payments and the manner of computing interest if
other than as specified in Section 3.11;
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<PAGE>
(5) the place or places where, subject to the provisions of Section
10.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered for exchange and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served and where notices to Holders pursuant to Section 1.06 will be
published;
(6) the period or periods within which or the date or dates on which,
the price or prices at which, and the terms and conditions upon which,
Securities of the series may be redeemed, in whole or in part, at the option
of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the other terms and
conditions upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(8) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both, the terms upon which Bearer
Securities of the series may be exchanged for Registered Securities of the
series (and vice versa) if other than as provided in Sections 3.04 and 3.05,
and, in the case of Bearer Securities (or any temporary Global Security
representing the same), the date as of which such Bearer Securities shall be
dated if other than the date of original issuance of the first Security of
such series of like tenor and term to be issued;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global
form shall be permanent or temporary and, if so, whether beneficial owners
of interests in any such permanent Global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided in
this Article Three, and, if applicable, the Exchange Date;
(10) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 10.05;
(11) the denominations in which any Registered Securities of the series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which any Bearer Securities of
such series shall be issuable, if other than denominations of $5,000 and any
integral multiple thereof;
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<PAGE>
(12) if other than Dollars, the Currency or Currencies of denomination
of the Securities of any series, which may be in any Foreign Currency or any
composite Currency or index, including but not limited to the ECU, and, if
any such Currency of denomination is a composite Currency other than the
ECU, the agency or organization, if any, responsible for overseeing such
composite Currency;
(13) whether either, both or neither of Section 15.02 or Section 15.03
shall apply to the Securities of the series;
(14) if other than Dollars, the Currency, Currencies or currency units
in which payment of the principal of (and premium, if any) and interest, if
any, on any Securities of the series shall be payable and the Currency or
Currencies, if any, in which payment of the principal of (and premium, if
any) or the interest, if any, on Registered Securities at the election of
each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the time and manner of determining the exchange rate between Currency or
Currencies in which such Securities are denominated or stated to be paid and
the Currency or Currencies in which such Securities are to be paid, in each
case in accordance with, in addition to or in lieu of Section 3.12;
(15) if the amount of payments of principal of (or premium, if any) or
interest, if any, on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be determined;
(16) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if other than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary Global
Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 3.04;
(17) the designation of the initial Exchange Rate Agent, if any;
(18) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable;
(19) 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 pursuant to Section
5.02;
(20) if other than the Trustee, the identity of the Security Registrar
and/or Paying Agent; and
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<PAGE>
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(5)).
Except as set forth below, all Securities of any one series and the coupons
appertaining to Bearer Securities of such series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and (subject to Section 3.03) set forth, or
determined in the manner provided, in such Officers' Certificate or in any
indenture supplemental hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest, if any, may be determined, with different dates on which such
interest may be payable and with different Redemption or Repayment Dates and may
be denominated in different Currencies or payable in different Currencies.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
-------------
Securities of each series shall be issuable in such form and denominations
as shall be specified in the form of Security for such series approved or
established pursuant to Section 2.01 or in the Officers' Certificate delivered
pursuant to Section 3.01. In the absence of any specification with respect to
the Securities of any series, the Registered Securities of such series, if any
(other than Registered Securities in global form, which may be in any
denomination), shall be issuable in denominations of $1,000 and any integral
multiples thereof and the Bearer Securities of such series, if any (other than
Bearer Securities in global form, which may be in any denomination), shall be
issuable in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
(a) The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon, and shall be attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile. Coupons shall bear
the facsimile signature of an authorized officer of the Company.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
coupons or did not hold such offices at the date of such Securities or coupons.
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<PAGE>
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, executed by
the Company, to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and, except as otherwise
provided in this Article Three, the Trustee in accordance with the Company Order
shall authenticate and deliver such Securities; provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 3.01, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 3.01, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent Global Bearer
Security, then, for purposes of this Section 3.03 and Section 3.04, the notation
of a beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary Global Security shall be deemed to
be delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section
3.06, the Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached and
canceled. If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate, maturity date, date
of issuance and date from which interest shall accrue. If the form or terms of
the Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(i) if the form of such Securities and coupons, if any, has been
established by or pursuant to a Board Resolution as permitted by Section
2.01, that such form has been established in conformity with the provisions
of this Indenture;
(ii) if the terms of such Securities and coupons, if any, have been
established by or pursuant to a Board Resolution as permitted by Section
3.01, that such terms have been established in conformity with the
provisions of this Indenture; and
(iii) that such Securities and coupons, if any, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles and except further as enforcement thereof may be limited
by (1) requirements that a claim with respect to any Securities denominated
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<PAGE>
other than in Dollars (or a Foreign Currency or Currency unit judgment in
respect of such claim) be converted into Dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (2)
governmental authority to limit, delay or prohibit the making of payments in
Foreign Currencies or Currency units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section 3.03, Section 3.04, if and to the extent
applicable, and the Company Order with respect to such series, authenticate and
deliver one or more Global Securities in permanent or temporary form that (i)
shall represent and shall be denominated in an aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more Global
Securities, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary and (iii) shall
be delivered by the Trustee to such Depositary or a customer or pursuant to such
Depositary's instructions.
(d) If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
(e) Notwithstanding the provisions of Section 3.01 and this Section 3.03,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise
required pursuant to this Section 3.03 at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.
(f) Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated the date contemplated by Section 3.01.
(g) No Security or attached coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless executed and
issued by the Company and there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.10, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
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<PAGE>
(h) To the extent required by law, each Depositary designated pursuant to
Section 3.01 for a Global Security must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
(i) The Securities may contain such notations, legends or endorsements as
may be required by law, stock exchange rule or usage.
SECTION 3.04. Temporary Securities.
--------------------
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 3.04(b) or as otherwise provided in or
pursuant to a Board Resolution), or as otherwise provided in or pursuant to a
Board Resolution, if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by any
non-matured coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations;
provided, however, that unless otherwise contemplated or specified with respect
to any series of Securities pursuant to Section 3.01, no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided further that a Bearer Security shall be delivered in exchange for a
Bearer Security only in compliance with the applicable conditions set forth in
Sections 3.03, 3.04 and 3.05. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 3.04(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a Depositary, for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
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Without unnecessary delay but in any event not later than the date specified
in, or determined pursuant to the terms of, any such temporary Global Security
(the "Exchange Date"), the Company shall deliver to the Trustee definitive
Securities, in aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. On or after the Exchange
Date, such temporary Global Security shall be surrendered by the Depositary to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary Global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary Global Security to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary Global Security
shall be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified as
contemplated by Section 3.01, and, if any combination thereof is so specified,
as requested by the beneficial owner thereof; provided, however, that, unless
otherwise specified in such temporary Global Security, upon such presentation by
the Depositary, such temporary Global Security is accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary Global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by CEDEL as to the portion of such temporary Global Security held for its
account then to be exchanged, each in the form set forth in Exhibit A-2 to this
Indenture or in such other form as may be established pursuant to Section 3.01;
and provided further that definitive Bearer Securities shall be delivered in
exchange for a portion of a temporary Global Security only in compliance with
the requirements of Section 3.03, 3.04 and 3.05, as applicable.
Unless otherwise specified in such temporary Global Security, the interest
of a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear,
CEDEL or another Person, as the case may be, to request such exchange on his
behalf and delivers to Euroclear, CEDEL or such other Person, as the case may
be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 3.01), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the officers of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary Global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary Global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, any interest payable on a temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
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such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
3.01), for credit without further interest on or after such Interest Payment
Date to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 3.01). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 3.04(b) and of Section 3.03(b) of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary
Global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary Global Security will be made unless and until such interest in such
temporary Global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company.
SECTION 3.05. Registration; Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 3.05
and Section 10.02, with respect to the Securities of each series which are
Registered Securities, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. Pursuant to Section 3.01, the Company shall
appoint, with respect to Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such
Securities and transfers and exchanges of such Securities as herein provided.
The Trustee, at its Corporate Trust office, is initially appointed "Security
Registrar" for such Registered Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations,
of like tenor and terms and aggregate principal amount, all as requested by the
transferor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of like tenor and terms and aggregate principal
amount, upon surrender of the Registered Securities to be exchanged at such
office or agency. Unless otherwise specified with respect to any series of
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Securities as contemplated by Section 3.01, Bearer Securities may not be issued
in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be issued
in exchange for Bearer Securities (except as otherwise specified as contemplated
by Section 3.01 with respect to a Bearer Security in global form) of the same
series, of any authorized denominations and of like tenor and terms and
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 10.02, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the same
series and like tenor and terms after the close of business at such office or
agency of (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03(h), the Company shall
appoint a successor Depositary with respect to the Securities of such series.
If a successor Depositary for the Securities of such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 3.01(9)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
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aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(a) to each Person specified by such Depositary in writing a new
Security or Securities of the same series, of like tenor and terms and of
any authorized denominations as requested by such person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount
of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Securities
(a) in definitive registered form in authorized denominations, if the Securities
of such series are issuable as Registered Securities, (b) in definitive bearer
form in authorized denominations, with coupons attached, if the Securities of
such series are issuable as Bearer Securities or (c) as either Registered or
Bearer Securities, as shall be specified by the beneficial owner thereof, if the
Securities of such series are issuable in either form; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company knows or has reason to know that any such
certificate is false.
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Registered Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
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<PAGE>
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the persons in whose names such
Securities are so registered. The Trustee shall deliver Bearer Securities
issued in exchange for a Global Security pursuant to this Section to the
persons, and in such authorized denominations, as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee in writing; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary Global
Security unless the Company or its agent shall have received from the person
entitled to receive the definitive Bearer Security a certificate substantially
in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and
provided further that delivery of a Bearer Security shall occur only outside the
United States; and provided further that no definitive Bearer Security will be
issued if the Company has reason to know that any such certificate is false.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer, registration of transfer or exchange of Securities, other than
exchanges of Securities expressly provided in this Indenture to be made at the
Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any particular series to be redeemed for a period of
fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Securities of
such series selected for redemption under Section 11.03 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of such Registered Security being redeemed in
part, or (iii) to exchange any Bearer Security so selected for redemption except
that such a Bearer Security may be exchanged for a Registered Security of like
tenor and terms of that series, provided that such Registered Security shall be
simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchange the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
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delivered to the Trustee a Company Order directing the Trustee not to make such
exchange thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to a Paying Agent outside the United States or, in the case of a
Registered Security, to the Trustee or (ii) the Company and the Trustee receive
evidence to their satisfaction of the loss, destruction or theft of any Security
or coupon together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them or any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor (together with all coupons not destroyed, lost or stolen) a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding with coupons corresponding to any
coupons appertaining to the surrendered Security; provided that any such Bearer
Security will be delivered only in compliance with Section 3.03, 3.04 and 3.05,
as applicable.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon; provided, however, that payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 10.02, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security or coupon under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
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SECTION 3.07. Payment of Interest; Interest Rights Preserved;
-----------------------------------------------
Optional Interest Reset.
-----------------------
(a) Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.01, interest, if any, on any
Registered Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 10.02; provided,
however, that each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 3.09, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee inside the
United States.
Unless otherwise provided as contemplated by Section 3.01 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, at the Holder's option by (i) check in the
Currency designated for such payment pursuant to the terms of the Bearer
Security presented or mailed to an address outside the United States or (ii)
transfer to an account in such Currency maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 3.01, every
permanent Global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with respect
to that portion of such permanent Global Security held for its account by the
Depositary, for the purpose of permitting each of Euroclear and CEDEL to credit
the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.01, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 30 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and 3.12(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or agency
on any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to
such proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security issued
in exchange for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
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<PAGE>
(b) The provisions of this Section 3.07(b) may be made applicable to any
series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 75 days prior to an Optional Reset Date for such Security. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 1.06, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or, if there is no such next Optional Reset Date, to the Stated
Maturity of such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to an Optional
Reset Date, the Company may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
provided for in the Reset Notice and establish an interest rate (or a spread or
spread multiplier used to calculate such interest rate, if applicable) that is
higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period
by causing the Trustee to transmit, in the manner provided for in Section 1.06,
notice of such higher interest rate (or such higher spread or spread multiplier,
if applicable) to the Holder of any such Security. Such notice shall be
irrevocable. All Securities with respect to which the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
is reset on an Optional Reset Date, and with respect to which the Holders of
such Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to the next succeeding paragraph, will bear
such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date,
the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section 3.07 and Section 3.05,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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<PAGE>
In the case of any Security that is converted after any Regular Record Date
and on or prior to the next succeeding Interest Payment Date (other than any
Security whose Maturity is prior to such Interest Payment Date), interest shall
be payable on such Interest Payment Date notwithstanding such conversion, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding sentence, in
the case of any Security that is converted, interest after the date of
conversion of such Security shall not be payable.
SECTION 3.08. Optional Extension of Maturity.
------------------------------
The provisions of this Section 3.08 may be made applicable to any series of
Securities pursuant to Section 3.01 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 3.01). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 75 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 1.06, to the Holder of any such Security not later than
40 days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 1.06, notice of such higher interest rate to
the Holder of any such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended will bear such
higher interest rate.
If the Company extends the Stated Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
any interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Stated Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
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the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 3.09. Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 3.05 and 3.07) any interest on such
Registered Security and for all other purposes whatsoever, whether or not such
Registered Security is overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass
by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with respect to such
Global Security or impair, as between such Depositary and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Global Security.
SECTION 3.10. Cancellation.
------------
All Securities and coupons surrendered for payment, redemption, repayment at
the option of the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
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exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities and coupons held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.11. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.01 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
SECTION 3.12. Currency and Manner of Payments in Respect of Securities.
--------------------------------------------------------
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 3.12 may be modified or superseded with
respect to any Securities pursuant to Section 3.01.
(b) It may be provided pursuant to Section 3.01 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (or premium,
if any) or interest, if any, on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
3.01, not later than the close of business on the Election Date (as defined
below) immediately preceding the applicable payment date. If a Holder so elects
to receive such payments in any such Currency, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Election Date immediately preceding the next payment date to
be effective for the payment to be made on such payment date and no such change
of election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Fifteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in Section 3.12(a). The Trustee for each such
series of Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
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(c) Unless otherwise specified pursuant to Section 3.01, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
3.01, then, unless otherwise specified pursuant to Section 3.01, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 3.01 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.01, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b) above. Such
amounts shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 3.01, the
Dollar amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency (as defined below) or, in the case of a currency unit, the Dollar
Equivalent of the Currency Unit (as defined below), in each case as determined
by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 3.12.
(f) "Dollar Equivalent" when used with respect to any Foreign Currency
shall be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
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<PAGE>
(g) "Dollar Equivalent" when used with respect to any currency unit shall
be determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting the
Specified Amount (as defined below) of each Component Currency (as defined
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12, the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including, but
not limited to, the ECU. A "Specified Amount" of a Component Currency shall
mean the number of units of such Component Currency or fractions thereof
which were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion Date
the official unit of any Component Currency is altered by way of combination
or subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single currency, and such amount shall thereafter be a
Specified Amount and such single currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more currencies, having
an aggregate Dollar Equivalent value at the Market Exchange Rate on the date
of such replacement equal to the Dollar Equivalent of the Specified Amount
of such former Component Currency at the Market Exchange Rate immediately
before such division, and such amounts shall thereafter be Specified Amounts
and such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not limited
to, the ECU, a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as
the case may be, or such other prior date for any series of Registered
Securities as specified pursuant to Section 3.01(14) by which the written
election referred to in Section 3.12(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
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above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders) specifying the Conversion Date. In the event the Company so determines
that a Conversion Event has occurred with respect to the ECU or any other
currency unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders).
The Trustee of the appropriate series of Securities shall be fully justified
and protected in relying and acting upon information received by it from the
Company and the Exchange Rate Agent and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such information independent
of the Company or the Exchange Rate Agent.
SECTION 3.13. Appointment and Resignation of Successor Exchange Rate Agent.
------------------------------------------------------------
(a) Unless otherwise specified pursuant to Section 3.01, if and so long as
the Securities of any series (i) are denominated in a Foreign Currency or (ii)
may be payable in a Foreign Currency, or so long as it is required under any
other provision of this Indenture, then the Company will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified pursuant
to Section 3.01 for the purpose of determining the applicable rate of exchange
and, if applicable, for the purpose of converting the issued Foreign Currency
into the applicable payment Currency for the payment of principal (and premium,
if any) and interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
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(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
SECTION 3.14. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; provided
that neither the Company nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Security, check, advice of
payment or notice, and any such document may contain a statement to the effect
that CUSIP numbers have been assigned by an independent service for convenience
of reference and that neither the Company nor the Trustee shall be liable for
any inaccuracy in such numbers; and provided further that any such document may
state that no representation is made as to the correctness or accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
SECTION 3.15. Certification by a Person Entitled to Delivery of
-------------------------------------------------
Bearer Security.
---------------
Whenever any provision of this Indenture or a Security contemplates that
certification be given by a Person entitled to delivery of a Bearer Security,
such certification shall be provided substantially in the form of Exhibit A-1
and, if applicable, A-2 hereto, with only such changes as shall be approved by
the Company and consented to by the Trustee whose consent shall not unreasonably
be withheld.
SECTION 3.16. Judgments.
---------
The Company may provide, pursuant to Section 3.01, for the Securities of any
series that, to the fullest extent possible under applicable law and except as
may otherwise be specified as contemplated in Section 3.01, (a) the obligation,
if any, of the Company to pay the principal of (and premium, if any) and
interest, if any, on the Securities of any series and any appurtenant coupons in
a Foreign Currency, composite Currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 3.01 is of the essence and agrees that
judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest, if any, on such
Securities and any appurtenant coupons shall notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
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to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day of such payment; (c)
if the amount in the Designated Currency that may be purchased falls short of
the amount originally due for any reason, the Company shall pay such additional
amounts needed to compensate for any short fall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
SECTION 3.17. Medium Term Securities.
----------------------
Notwithstanding any contrary provision herein, if all Securities of a series
are not to be originally issued at one time, it shall not be necessary for the
Company to deliver to the Trustee an Officers' Certificate, Board Resolution,
supplemental indenture, Opinion of Counsel or Company Order otherwise required
pursuant to Sections 1.02, 3.01 and 3.03 at or prior to the time of
authentication of each Security of such series if such documents are delivered
to the Trustee or its agent at or prior to the authentication upon original
issuance of the first Security of such series to be issued; provided that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such request, the statements made
in the Officers' Certificate or other certificates delivered pursuant to
Sections 1.02 and 2.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount established
for such series pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by Company Order upon the telephonic, electronic or
written order of persons designated in such Company Order, Officers'
Certificate, supplemental indenture or Board Resolution (any such telephonic or
electronic instructions to be promptly confirmed in writing by such persons) and
that such persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution, such
terms and conditions of said Securities as are specified in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect with respect to any
series of Securities (except as to any surviving rights of conversion or
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transfer or exchange of Securities of such series expressly provided for herein
or in the form of Security for such series and rights to receive payments of
principal (and premium, if any) and interest, if any, thereon and any right to
receive additional amounts, as provided in Section 10.05), and the Trustee, on
the demand and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) all Securities of that series theretofore authenticated, issued
and delivered and all coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities of that series surrendered in exchange for
Registered Securities of that series and maturing after such exchange, surrender
of which is not required or has been waived as provided in Section 3.05; (ii)
Securities of that series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06; (iii) coupons
appertaining to Bearer Securities of that series called for redemption or
surrendered for repayment and maturing after the relevant Redemption Date or
Repayment Date, as appropriate, surrender of which has been waived as provided
in Section 11.06 or 13.03; and (iv) Securities of that series for whose payment
money has theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 10.03), have been delivered to the Trustee for
cancellation; or
(B) all such Securities of that series and, in the case of (B) (i) or
(ii) below, any coupons appertaining thereto, not theretofore delivered to the
Trustee cancelled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) if redeemable at the option of the Company, are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (B) (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount, which shall be immediately due and payable, sufficient to pay and
discharge the entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee cancelled or for cancellation, for
principal (and premium, if any) and interest, if any, to the date of such
deposit (in the case of Securities which have become due and payable), or to the
Stated Maturity or Redemption Date, or any Repayment Dates, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Securities of such series; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of such series, the obligations of the Company to the
Trustee with respect to that series under Section 6.07, the obligations of the
Trustee to any Authenticating Agent with respect to that series under Section
6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money.
--------------------------
(a) Subject to the provisions of Article Sixteen and the last paragraph of
Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 or
15.04 shall be held in trust and applied by it, in accordance with the
provisions of the series of Securities in respect of which it was deposited, the
appurtenant coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto of the principal
(and premium, if any) and interest, if any, for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
(b) If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Four with respect to the Securities of any series
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Four with respect to Securities of such series until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to this Section 4.02 with respect to Securities of such series in
accordance with this Article Four; provided, however, that if the Company makes
any payment of principal, premium or interest on any Security of such series
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of Securities of such series to receive payment
from the money so held in trust.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default.
-----------------
"Event of Default", wherever used herein, with respect to any series of
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body);
unless such event is either inapplicable to a particular series or it is
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specifically deleted or modified in or pursuant to the supplemental indenture or
Board Resolution creating such series of Securities or in the form of Security
for such Series:
(1) default in the payment of any installment of interest upon any Security
of that series or of any coupon appertaining thereto when it becomes due and
payable, and continuance of such default for a period of 30 days, whether or not
such payment shall be prohibited by Article Sixteen; or
(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity, whether or not such payment shall be
prohibited by Article Sixteen; or
(3) default in the payment of any sinking or purchase fund or analogous
obligation when and as the same becomes due by the terms of the Securities of
such series, whether or not such payment shall be prohibited by Article Sixteen;
or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture 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 of which or the breach of which is elsewhere in this
Section specifically dealt with), all of such covenants and warrants in this
Indenture which are not expressly stated to be for the benefit of a particular
series of Securities being deemed in respect of the Securities of all series for
this purpose, and continuance of such default or breach for a period of 90
consecutive days after receipt by the Company from the Trustee or by the Company
and the Trustee from the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, of a written notice, by registered or
certified mail, specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) (i) a default occurs under any instrument or instruments (including this
Indenture) under which there is at the time outstanding, or by which there may
be secured or evidenced, any indebtedness of the Company or any Subsidiary for
money borrowed by the Company or any Subsidiary or any guarantee of payment by
the Company or any Subsidiary of any obligation of any Person which results in
acceleration (whether by declaration or automatically) of, or the nonpayment at
maturity (after giving effect to any applicable grace of period) of, such
indebtedness or guarantee in an aggregate amount exceeding $15,000,000, in which
case the Company shall immediately give notice to the Trustee of such
acceleration or nonpayment and (ii) there shall have been a failure to cure such
default or to discharge all such defaulted indebtedness or guarantee or such
default is not otherwise waived and such acceleration has not been rescinded or
annulled within fifteen (15) days after receipt by the Company from the Trustee
or by the Company and the Trustee from the Holders of at least 25% in aggregate
principal amount of the Securities then Outstanding (excluding, if such
defaulted indebtedness includes any series of Securities, such series of
Securities) of a written notice thereof, by registered or certified mail, and
stating that such notice is a "Notice of Default" hereunder; or
(6) the entry of an order for relief against the Company under the Federal
Bankruptcy Code by a court having jurisdiction in the premises or a decree or
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<PAGE>
order by a court having jurisdiction in the premises adjudging the Company
bankrupt or insolvent under any other applicable Federal or State law, or the
entry of a decree or order approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under the Federal Bankruptcy Code or any other applicable Federal or
State law, or appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of
90 consecutive days; or
(7) the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable Federal or State law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(8) any other Event of Default provided in the supplemental indenture or
Board Resolution under which such series of Securities is issued or in the form
of Security for such series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, unless the principal amount of all the
Securities of such series shall have already become due and payable, then in
every such case either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of that series (acting
as a separate class) may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Outstanding Securities of that
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration, subject
to Article Sixteen, such principal amount (or specified amount) shall become
immediately due and payable. Upon payment to the Holders of such amount, all
obligations of the Company in respect of the payment of principal of the
Securities of such series shall terminate.
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At any time after such acceleration with respect to Securities of any series
has occurred and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Securities of that
series (and without notice to any Holder of that Series), by written notice to
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay, in the Currency in which the Securities of that series are payable (except
as may otherwise be specified pursuant to Section 3.01 for such series and
except as may be provided in Section 3.12, if and to the extent applicable):
(A) all overdue installments of interest on all Outstanding Securities
of that series, and any related coupons,
(B) the principal of (and premium, if any, on) all Outstanding
Securities of that series which have become due otherwise than by such
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities, to the extent that payment of such interest is
lawful,
(C) interest upon the Defaulted Interest at the rate or rates
prescribed therefor in such Securities and any related coupons, to the
extent that payment of such interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder, and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and all other amounts due the Trustee under
Section 6.07,
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of (or premium, if any) or interest, if
any, on Securities of that series which have become due solely by such
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
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SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if an Event of Default specified in Sections
5.01(1), 5.01(2) or 5.01(3) occurs with respect to Securities of any series, the
Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of
the Holders of such Securities and any coupons appertaining thereto, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
premium, if any) and on any overdue installments of interest, at the rate or
rates prescribed therefor in such Securities and coupons, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due the Trustee under Section 6.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon Securities of
such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of a series or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal (and
premium, if any) or interest, if any, in respect of the Securities of that
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any such amount) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (or in the
case of Original Issue Discount Securities or Indexed Securities, such portion
of the principal as may be provided in the terms thereof) (and premium, if any)
and interest, if any, owing and unpaid in respect of such Securities and any
appurtenant coupons and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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<PAGE>
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for such reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy
or similar official and be a member of a creditors' or other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities or Coupons.
---------------------
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07, be for the ratable benefit of the
Holders of the Securities and coupons in respect of which such judgment has been
recovered.
SECTION 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, if any, upon presentation of the Securities or coupons, or both,
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, including
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 6.07;
SECOND: To holders of Senior Indebtedness to the extent required by
Article Sixteen;
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<PAGE>
THIRD: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest, if any, on the Securities and coupons
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal (and premium,
if any) and interest, if any, respectively. The Holders of each series of
Securities denominated in ECU, any other composite Currency or a Foreign
Currency and any matured coupons relating thereto shall be entitled to
receive a ratable portion of the amount determined by the Exchange Rate
Agent by converting the principal amount Outstanding of such series of
Securities and matured but unpaid interest on such series of Securities in
the Currency in which such series of Securities is denominated into Dollars
at the Exchange Rate as of the date of declaration of acceleration of the
Maturity of the Securities; and
FOURTH: The balance, if any, to the Company, its successors or assigns,
or to whomever may be lawfully entitled to receive same, or as a court of
competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 5.06. At least 15 days before such record date, the
Company shall, upon written request of the Trustee, mail to each Holder a notice
that states the record date, payment date and amount to be paid.
SECTION 5.07. Limitation on Suits.
-------------------
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
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<PAGE>
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
--------------------
Notwithstanding any other provision in this Indenture, but subject to
Article Sixteen, the Holder of any Security or coupon shall have the right,
which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.05 or 3.07) interest, if any, on such
Security or coupon on the respective Stated Maturities expressed in such
Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or Repayment Date, as the case may be) and to institute suit for
the enforcement of any such payment on and after the respective Stated
Maturities or applicable Redemption Date or Repayment Date, and such rights
shall not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of any Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders of any Security or coupon shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of any Security or coupon 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.
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<PAGE>
SECTION 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 5.12. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that:
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall determine that the
proceedings so directed would involve it in personal liability or be
unjustly prejudicial to the Holders not taking part in such direction, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
This Section 5.12 shall be in lieu of Section 316 (a)(1)(A) of the Trust
Indenture Act and such Section 316 (a)(1)(A) is hereby expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
SECTION 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may by notice to the Trustee (and without
notice to any other Holder) on behalf of the Holders of all the Securities of
such series and any related coupons waive any past default hereunder with
respect to such series and its consequences, except (if not theretofore cured):
(1) an Event of Default described in Section 5.01(1), (2) or (3), or
(2) a default in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series or coupons affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereto. This Section 5.13 shall be in
lieu of Section 316 (a)(1)(B) of the Trust Indenture Act and such Section 316
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<PAGE>
(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the
Trust Indenture Act.
SECTION 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
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
or the Company, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series to which the suit relates, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest, if any, on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date, as the case may
be).
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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<PAGE>
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to any series of Securities,
(1) the Trustee shall not be liable except for the performance of
such duties and only such duties as are specifically set forth in this
Indenture with respect to the Securities of such series, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
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<PAGE>
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder of which the
Trustee has knowledge with respect to Securities of any series, the Trustee
shall transmit by mail, in the manner and to the extent provided in TIA Section
313(c), to all Holders of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series or in the payment of
any sinking or purchase fund installment or analogous obligation with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of such series; and provided further, that in the case of any default of the
character specified in Section 5.01(4) with respect to Securities of such series
no such notice to Holders of such series shall be given until at least 90 days
after the occurrence thereof. For the purpose of this Section, the term
"default", with respect to Securities of any series, means any event which is,
or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series. The Trustee shall not be deemed to have
knowledge of any Event of Default or of any event or condition which, with the
giving of notice, the passage of time or both, might constitute an Event of
Default unless (i) the Trustee has received written notice thereof from the
Company or a Holder or (ii) a Responsible Officer of the Trustee shall have
actual knowledge thereof.
SECTION 6.03. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or other
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
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<PAGE>
(b) any instruction, request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting to take any action hereunder, the Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction:
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent, reasonably acceptable to the Company, or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys reasonably acceptable to the Company and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder, and no Depositary or
Paying Agent shall be deemed an agent of the Trustee and the Trustee shall
not be responsible for any act or omission by any of them;
(h) the Trustee shall not be responsible for the computation of any
adjustment to the Conversion Price or for any determination as to whether an
adjustment is required; and
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this
Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
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<PAGE>
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities or any
coupons, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
-------------------
Subject to the provisions of Article Sixteen and Section 10.03, all moneys
received by the Trustee shall, until used or applied as herein provided, be held
by the Trustee in trust hereunder for the purposes for which they were received,
and shall be segregated from the funds of the Trustee, other than funds held in
trust. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed to in writing by the Company
and the Trustee.
SECTION 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as the Company and the Trustee shall from
time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
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(3) to indemnify each of the Trustee and each of the Trustee's
directors, officers, employees, agents, successors and assigns (the
"Indemnitees") or any predecessor Trustee for, and to hold them harmless
against, any and all losses, damages, claims, liabilities or expenses,
including taxes (other than taxes based upon, measured by or determined by
the income of the Trustee), incurred without negligence or bad faith on
their part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending the Indemnitees against any claim or liability in
connection with the exercise or performance of any of their powers or duties
hereunder as Trustee, Authenticating Agent, Security Registrar or Paying
Agent.
The obligations of the Company under this Section 6.07 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the termination of this
Indenture. As security for the performance of such obligations of the Company,
the Trustee shall have a claim prior to the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any, on) or interest, if any, on
particular Securities. The obligations of the Company to the Trustee under this
Section 6.07 shall not be subordinated to the payment of Senior Indebtedness
under Article Sixteen. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(6) or Section
5.01(7), the expenses (including reasonable fees and expenses of its counsel)
and the compensation for the service in connection therewith are intended to
constitute expense of administration under any applicable bankruptcy, insolvency
or other similar law.
The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (3) of
this Section 6.07 within a reasonable amount of time after a Responsible Officer
becomes actually aware of such claim or liability.
SECTION 6.08. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under (i) this Indenture with
respect to Securities of any particular series of Securities other than that
series and (ii) any other indenture or indentures in each case as and to the
extent that such series or indenture satisfies the requirements set forth in
Section 310(b)(i) of the Trust Indenture Act. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
penultimate paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
(a) There shall at all times be a Trustee hereunder with respect to
each series of Securities, which shall be either:
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(i) a corporation organized and doing business under the laws of
the United States of America or of any State, the District of Columbia
or, for Bearer Securities only, any Territory authorized under such
laws to exercise corporate trust powers and subject to supervision or
examination by Federal, State, District of Columbia or Territory
authority, or
(ii) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees,
in either case having a combined capital and surplus of at least
$50,000,000, except that the initial Trustee hereunder shall be required to
maintain a combined capital and surplus of at least $10,000,000. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as
trustee for the Securities of any series issued hereunder. If at any time
the Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in Section 6.10.
(b) The Company may appoint a separate Trustee for any one or more
series of Securities. The Trustee for each such series shall be identified
in a supplemental indenture and shall be the sole Trustee with respect to
such series of Securities and shall have all the rights, duties and
obligations as with respect to such series as reserved to the Trustee
hereunder as if set forth in such supplemental indenture.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
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of acceptance by a successor Trustee required by Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any
series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee subject to removal may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 6.08 with respect to any series of
Securities after written request therefor by the Company or by any Holder of
a Security of that series who has been a bona fide Holder of such Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(5) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series, or in the case of clauses (4) or (5), with
respect to all series of Securities, or (ii) subject to Section 5.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series, or in the case
of clauses (4) or (5), with respect to all series of Securities.
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If the Trustee shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of such series and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 1.06. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its reasonable charges, if any, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
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or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first two paragraphs of this Section 6.11, as the case may be.
No successor Trustee with respect to any series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article
and under the Trust Indenture Act.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article and under the Trust Indenture Act, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor, directly or
indirectly, of the Company (or any other obligor upon the Securities), the
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Trustee shall be subject to the provisions of Section 311(a) of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor), excluding any creditor relationships described in Section
311(b) of the Trust Indenture Act. A Trustee who resigned or has been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.
SECTION 6.14. Appointment of Authenticating Agent.
-----------------------------------
The Trustee, with the prior written approval of the Company, may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent appointed by the Trustee shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia or, for Bearer Securities only, any Territory of the United
States of America, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and, if other
than the Company itself, subject to supervision or examination by Federal,
State, District of Columbia or such Territory authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then, for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent appointed by the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.14, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.14, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and, if other than the Company, and to the Company. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent, if other than the
Company, and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section 6.14, the
Trustee, with the approval of the Company, may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
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written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.14.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section 6.14, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within mentioned Indenture.
Chemical Trust Company of California,
as Trustee
By:__________________________________
As Authenticating Agent
By:__________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company and any other obligor upon the Securities will furnish or cause
to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular Record
Date for each series of Securities at the time Outstanding, a list, in such
form as the Trustee may reasonably require, containing all information in
the possession or control of the Company or any other such obligor, or of
any of the Company's or such other obligor's Paying Agents, as to the names
and addresses of the Holders of Registered Securities of such series as of
the preceding Regular Record Date (or a date to be determined pursuant to
Section 3.01 for Original Issue Discount Securities), and
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(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished. The Trustee shall preserve for at least two years the
names and addresses of Holders of Bearer Securities filed with the Trustee by
such Holders.
The rights of the Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by Section 312(b) of
the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to Section 313
of the Trust Indenture Act at the times and in the manner provided pursuant
thereto, if so required.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee in writing when any Securities are listed on any stock
exchange.
SECTION 7.04. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to Section 314(a) of the Trust Indenture
Act at the times and in the manner provided pursuant to the TIA; provided that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company, in a single transaction or through a series of related
transactions, shall not consolidate with or merge with or into any other Person
or transfer (by lease, assignment, sale or otherwise) all or substantially all
of its properties and assets to another Person or group of affiliated Persons,
unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which all or substantially all of the
properties and assets of the Company are transferred (i) shall be a
corporation, partnership or trust organized and validly existing under the
laws of the United States of America or any State thereof or the District of
Columbia and (ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, and the
assumption contemplated by clause (a) above, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event
of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with
this Article VIII and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries (other than
to the Company or another wholly-owned Subsidiary), which, if such assets were
owned by the Company, would constitute all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
SECTION 8.02. Successor Person Substituted.
----------------------------
The successor Person formed by such consolidation or into which the Company
is merged or the successor Person to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein, and thereafter, except in the
case of a lease of its properties and assets substantially as an entirety, the
Company shall be discharged and released from all obligations and covenants
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under this Indenture and the Securities. The Trustee shall enter into a
supplemental indenture to evidence the succession and substitution of such
successor Person and such discharge and release of the Company.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company, or to surrender any right
or power herein conferred upon the Company, for the benefit of the Holders
of all or any series of Securities or coupons (and if such covenants or the
surrender of such right or power are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being
included or such surrenders are expressly being made solely for the benefit
of such series); provided that such action pursuant to this clause (2) shall
not adversely affect the interests of the Holders of any series or any
appurtenant coupons in any material respect; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series): or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest, if any, on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series or
any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination provided for in this clause (5): (i)
shall neither (A) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such
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provision nor (B) modify the rights of the Holder of any such Security with
respect to such provision or (ii) shall become effective only when there is
no Outstanding Security; or
(6) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at
the date as of which this instrument was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 6.11; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Indenture; provided that such action pursuant to this clause (9) shall not
adversely affect the interests of the Holders of Securities of any series or
any appurtenant coupons in any material respect; or
(10) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of each such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(1) change the Maturity of the principal of, or the Stated Maturity of
any premium on, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof (or premium, if any) or the
rate of interest, if any, thereon or any premium payable upon the redemption
thereof, or repayment thereof, or change any obligation of the Company to
pay additional amounts pursuant to Section 10.05 (except as contemplated by
Section 8.01(1) and permitted by Section 9.01(1)) or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 5.02, or change any Place of Payment where, or the Currency in
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which, any Security (or premium, if any) or interest, if any, thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Maturity or Stated Maturity thereof (or, in the
case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as applicable); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture or reduce the quorum or voting requirements of Section 14.04; or
(3) modify any of the provisions of this Section 9.02 or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby,
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 9.02, or the deletion of
this proviso, in accordance with the requirements of Section 6.11 and
9.01(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 120 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 9.03. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
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obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
SECTION 9.07. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture applicable to the Holders of Securities of one or more
series pursuant to Section 9.02, the Company shall transmit to such Holders a
notice setting forth the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of the Securities, any appurtenant coupons and this Indenture.
Any interest due on Bearer Securities on or before Maturity, other than
additional amounts, if any, payable as provided in Section 10.05 in respect of
principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Securities of any series pursuant to Section
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3.01, at the option of the Company, all payments of principal may be paid by
check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security. Unless otherwise specified
as contemplated by Section 3.01 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 10.02. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain, subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for such series which is located outside the United
States where Securities of such series and the related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Securities of such series pursuant to Section 10.05); provided, however, that
if the Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the principal Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all the presentations, surrenders, notices and demands, except
that Bearer Securities of that series and the related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Bearer Securities of that series pursuant to Section 10.05) at the place
specified for the purpose pursuant to Section 3.01(5).
No payment of principal of (or premium, if any) or interest, if any, on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, payment of principal of and any premium and interest
denominated in Dollars (including additional amounts payable in respect thereof)
on any Bearer Security may be made at an office or agency of, and designated by,
the Company located in the United States if (but only if) payment of the full
amount of such principal, premium, interest or additional amounts in Dollars at
all offices outside the United States maintained for the purpose by the Company
in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions and the Trustee receives an
Opinion of Counsel that such payment within the United States is legal. Unless
otherwise
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provided as contemplated by Section 3.01 with respect to any series of
Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the Currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such Currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 10.03. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company, a Subsidiary or any of their respective Affiliates shall at
any time act as the Paying Agent with respect to any series of Securities, it
will, on or before each due date of the principal of (or premium, if any) or
interest, if any, on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) and interest, if any, so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of (or premium, if
any) or interest, if any, on any Securities of that series, and any appurtenant
coupons, deposit with the appropriate Paying Agent a sum sufficient to pay such
amount so becoming due, such sum to be held as provided by the Trust Indenture
Act, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section 10.03, that such Paying Agent will (i) comply with the provisions
of the Trust Indenture Act applicable to it as a Paying Agent, (ii) give the
Trustee notice in writing of any default by the Company (or any other obligor
upon the Securities of such series) in the making of any payment of principal
(and premium, if any) or interest, if any, on the Securities of such series and
(iii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series and any appurtenant coupons, and upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any series of Securities or for
any other purpose, pay, or by Company Order direct any Paying Agent to pay, to
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the Trustee all sums held in trust by the Company or such Paying Agent, in
respect of each and every series of Securities as to which it seeks to discharge
this Indenture or, if for any other purpose, all sums so held in trust by the
Company in respect of all Securities, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (or premium, if any)
or interest, if any, on any Security of any series or any related coupons and
remaining unclaimed for two years after such principal (or premium) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company free of the trust formerly impressed upon it.
SECTION 10.04. Purchase of Securities by Company or Subsidiary.
-----------------------------------------------
If and so long as the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any
Subsidiary to, purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
SECTION 10.05. Payment of Additional Amounts.
-----------------------------
If the Securities of a series provide for the payment of amounts in addition
to principal, premium or interest ("additional amounts"), the Company will pay
to the Holder of any security of any such series or any coupon appertaining
thereto additional amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest, if any, on, or in
respect of, any Security of any series, any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided
for in the terms of such Securities and this Section 10.05 to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
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If the Securities of a series provide for the payment of additional amounts,
at least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest, if any, if there has been any
change with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's Paying Agent
or Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest, if any, on the
Securities of that series shall be made to Holders of Securities of that series
or the related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts, if
any, required by the terms of such Securities and the first paragraph of this
Section 10.05. The Company covenants to indemnity the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section 10.05.
SECTION 10.06. Statement by Officers as to Default.
-----------------------------------
(a) Each obligor upon the Securities (including the Company) will deliver
to the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, a certificate from each such obligor's principal
executive officer, principal financial officer or principal accounting officer,
stating that a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has been
made under his supervision and whether or not to the best knowledge of the
signer(s) thereof such obligor is in default in the performance and observance
of any of the terms, conditions and covenants of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder), and if such
obligor shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee as soon as possible, and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default, an Officers' Certificate specifying such Event of Default,
the period of existence thereof and what action the Company is taking or
proposes to take with respect thereto.
SECTION 10.07. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its legal existence.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.
------------------------
The Company may reserve the right to redeem and pay before Stated Maturity
all or any part of the Securities of any series, either by optional redemption,
sinking or purchase fund or analogous obligation or otherwise, by provision
therefor in the form of Security for such series established and approved
pursuant to Article Two and Article Three and on such terms as are specified in
such form or in the indenture supplemental hereto provided in Section 3.01.
Redemption of Securities of any series shall be made in accordance with the
terms of such Securities and, to the extent that this Article does not conflict
with such terms, the succeeding Sections of this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities redeemable at the
election of the Company shall be evidenced by, or pursuant to authority granted
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of like tenor and terms of any series (a
"Tranche") are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such Tranche not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
include provision for the selection for redemption of portions of the principal
of Securities of such Tranche of a denomination larger than the minimum
authorized denomination for Securities of that series. Unless otherwise
provided in the terms of a particular series of Securities, the portions of the
principal of Securities so selected for partial redemption shall be equal to the
minimum authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of such series.
If less than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Tranche of Securities to be redeemed shall be selected
by the Company.
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The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 11.04. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in Section 1.06
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(6) that the redemption is on account of a sinking fund, purchase fund
or other obligation, if such is the case,
(7) that Bearer Securities may be surrendered for payment only at such
place or places outside of the United States, except as otherwise specified
in Section 10.02 and unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
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(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on the Redemption Date pursuant to Section 3.05 or otherwise, the
last date, as determined by the Company, on which such exchanges may be
made, and
(9) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Failure to give such notice to the Holder of any Security or any defect in
such notice given to the Holder of any Security shall not affect the validity of
the proceedings for any other Security or part thereof.
SECTION 11.05. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money in the Currency in which such Securities are payable sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date;
provided that such amount shall be so deposited with the Trustee or Paying Agent
in time for the Trustee or the Paying Agent, as the case may be, to pay such
Redemption Price in accordance with its normal procedures.
SECTION 11.06. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption
Price; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at an office
or agency located outside the United States except as otherwise provided in
Section 10.02) and provided further, that, unless otherwise specified in Section
3.01, installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Registered Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
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coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 10.02.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 11.07. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Security without service charge, a new Registered Security or Securities of
the same series and Stated Maturity and of like tenor and terms, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
SECTION 12.02. Provisions with Respect to any Sinking Funds.
--------------------------------------------
Unless the form or terms of any series of Securities shall provide
otherwise, in lieu of making all or any part of any mandatory sinking fund
payment with respect to such series of Securities in cash, the Company may at
its option (1) deliver to the Trustee for cancellation any Securities of such
series theretofore acquired by the Company, or (2) receive credit for any
Securities of such series (not previously so credited) acquired by the Company
(including by way of optional redemption (pursuant to the sinking fund or
otherwise) but not by way of mandatory sinking fund redemption) and theretofore
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delivered to the Trustee for cancellation, and if it does so then (i) Securities
so delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to Securities of such series, and (ii) on or
before the 60th day next preceding each sinking fund Redemption Date with
respect to such series of Securities, the Company will deliver to the Trustee
(A) an Officers' Certificate specifying the portions of such sinking fund
payment to be satisfied by payment of cash and by delivery or credit of
Securities of such series acquired by the Company, and (B) such Securities, to
the extent not previously surrendered. Such Officers' Certificate shall also
state the basis for such credit and that the Securities for which the Company
elects to receive credit have not been previously so credited and were not
acquired by the Company through operation of the mandatory sinking fund, if any,
provided with respect to such Securities and shall also state that no Event of
Default with respect to Securities of such series has occurred and is
continuing. All Securities so delivered to the Trustee shall be cancelled by
the Trustee and no Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with respect
to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 11.06. The Trustee shall select, in the manner provided in
Section 11.03, for redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize that cash and shall
thereupon cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 11.04 (and with the
effect provided in Section 11.06) for the redemption of Securities in part at
the option of the Company. Any sinking fund moneys not so applied or allocated
by the Trustee to the redemption of Securities of such series shall be added to
the next cash sinking fund payment with respect to Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 12.02. Any and all sinking fund
moneys with respect to Securities of any series held by the Trustee at the
Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
On or before such sinking fund Redemption Date provided with respect to
Securities of any series, the Company shall deposit with the Trustee cash in a
sum equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 12.02; provided that such cash shall be so deposited with the Trustee in
time for the Trustee to make the payment of such accrued interest in accordance
with its normal procedures.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
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SECTION 13.01. Applicability of Article.
------------------------
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with their
terms and (except as otherwise specified pursuant to Section 3.01 for Securities
of such series) in accordance with this Article.
SECTION 13.02. Repayment of Securities.
-----------------------
Each Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall, unless otherwise
provided in its terms, be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 13.03. Exercise of Option; Notice.
--------------------------
Each Holder desiring to exercise such Holder's option for repayment shall,
as conditions to such repayment, surrender the Security to be repaid in whole or
in part together with written notice of the exercise of such option at any
office or agency of the Company in a Place of Payment, not less than 30 nor more
than 45 days prior to the Repayment Date; provided, however, that surrender of
Bearer Securities together with written notice of exercise of such option shall
be made at an office or agency located outside the United States except as
otherwise provided in Section 10.02. Such notice, which shall be irrevocable,
shall specify the principal amount of such Security to be repaid, which shall be
equal to the minimum authorized denomination for such Security or an integral
multiple thereof, and shall identify the Security to be repaid and, in the case
of a partial repayment of the Security, shall specify the denominations of the
Security or Securities of the same series to be issued to the Holder for the
portion of the principal of the Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied by
all unmatured coupons and all matured coupons in default, such Bearer Security
may be paid after deducting from the Repayment Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Repayment Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States except as otherwise
provided in Section 10.02.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
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The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series of any authorized denomination or denominations
specified in the foregoing notice, in an aggregate principal amount equal to any
portion of the principal of the Security so surrendered which is not to be paid;
provided, however, that the issuance of a Registered Security therefor shall be
subject to applicable laws and regulations in effect at the time of the
exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the Company would suffer adverse
consequences under the United States Federal income tax laws then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such issuances thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the case
of any Security repaid or to be repaid in part, to the portion of the principal
of such Security which has been or is to be repaid.
SECTION 13.04. Election of Repayment by Remarketing Entities.
---------------------------------------------
The Company may elect with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Date, Securities of such
series from the Holders thereof who give notice and surrender their Securities
in accordance with Section 13.03.
SECTION 13.05. Securities Payable on the Repayment Date.
----------------------------------------
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 13.04, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate borne by such Securities from time to time until payment in full of
such principal amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.01. Purposes for which Meetings May be Called.
-----------------------------------------
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If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 14.02. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series issuable as Bearer Securities for any purpose
specified in Section 14.01, to be held at such time and at such place in the
Borough of Manhattan, the City of New York, the City of San Francisco,
California or in London as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section
1.06, not less than 21 no more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series, shall have requested the Trustee to call a meeting
of the Holders of Securities of such series for any purpose specified in
Section 14.01, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, the City
of New York, the City of San Francisco, California or in London for such
meeting and may call such meeting for such purposes by giving notice thereof
as provided in subsection (a) of this Section.
SECTION 14.03. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 14.04. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent which this Indenture
expressly provides may be given by the Holders of not less than 66 2/3% in
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principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66 2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In the absence
of a quorum in any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such adjourned meeting. Notice of this reconvening of any
adjourned meeting shall be given as provided in Section 14.02(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series,
provided, however, that, except as limited by the proviso to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid only by the affirmative vote of the Holders of 66 2/3% in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 9.02, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 14.05. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
-----------------------
(a) Notwithstanding any other provisions of this Indenture, the
Company may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 1.04 and the appointment of any proxy
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shall be proved in the manner specified in Section 1.04 or, in the case of
Bearer Securities, by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.04 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the proof specified
in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
14.02(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint
a temporary chairperson. A permanent chairperson and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1.00 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of
Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairperson of the
meeting not to be Outstanding. The chairperson of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 14.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at a meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 14.06. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of vote who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 14.02 and, if
applicable, Section 14.01. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
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preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may elect, at its option by Board Resolution at any time, to
have either Section 15.02 or Section 15.03 applied to the Outstanding Securities
of any series designated pursuant to Section 3.01 as being defeasible, and any
related coupon, pursuant to this Article Fifteen (hereinafter called a
"Defeasible Series"), upon compliance with the conditions set forth below in
this Article Fifteen.
SECTION 15.02. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 15.01 to have
this Section 15.02 applied to the Outstanding Securities of any Defeasible
Series, the Company shall be deemed to have been discharged from its obligations
with respect to the Outstanding Securities of such series and any related
coupons as provided in this Section on and after the date the conditions set
forth in Section 15.04 are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under
the Securities of such series and this Indenture insofar as the Securities of
such series are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of Securities of such series to receive, solely from the trust
fund described in Section 15.04 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities of such series when payments are due, (2) the Company's
obligations with respect to the Securities of such series under Sections 3.04,
3.05, 3.06, 10.02, 10.03 and any additional amounts under Section 10.05, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
including, but not limited to, pursuant to Section 6.07 and (4) this Article
Fifteen. Subject to compliance with this Article Fifteen, the Company may
exercise its option provided in Section 15.01 to have this Section 15.02 applied
to the Outstanding Securities of any Defeasible Series notwithstanding the prior
exercise of its option provided in Section 15.01 to have Section 15.03 applied
to the Outstanding Securities of such series and any related coupons.
SECTION 15.03. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 15.01 to have
this Section 15.03 applied to the Outstanding Securities of any Defeasible
Series and any related coupons, (1) the Company shall be released from its
obligations under Sections 8.01 and 10.07 and (2) the occurrence of any event
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specified in Sections 5.01(3), 5.01(4) (with respect to Sections 8.01 and 10.07)
and 5.01(8) shall be deemed not to be or result in an Event of Default, in each
case with respect to the Outstanding Securities of such series as provided in
this Section 15.03 on and after the date the conditions set forth in Section
15.04 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified in the case of
Section 5.01(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of such series shall be
unaffected thereby.
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section 15.02
or Section 15.03 to the Outstanding Securities of any Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.09 and agrees to comply with the
provisions of this Article Fifteen applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Outstanding Securities of such series, (A) money in an amount (in such
Currency in which such Securities and any coupons appertaining thereto are
then specified as payable at Stated Maturity), (B) U.S. Government
Obligations that through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such other qualifying Trustee)
to pay and discharge, the principal of (and premium, if any) and interest,
if any, on the Securities of such series on the respective Stated
Maturities, in accordance with the terms of this Indenture and the
Securities of such series.
(2) In the case of an election under Section 15.02, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date first set forth hereinabove,
there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
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(3) In the case of an election under Section 15.03, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize gain
or loss for Federal income tax purposes as result of the deposit and
Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then listed
on any securities exchange, will not be delisted as a result of such
deposit.
(5) No Event of Default or event that (after notice, or lapse of time,
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 5.01 (6) and (7), at any
time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act.
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified or exempt from regulation thereunder.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 15.05. Deposited Money and U.S. Government Obligations to be
-----------------------------------------------------
Held In Trust, Other Miscellaneous Provisions.
---------------------------------------------
Subject to the provisions of the last paragraph of Section 10.03, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
15.05 and Section 15.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 15.04 in respect of the
Securities of any Defeasible Series and any related coupons shall be held in
trust and applied by the Trustee, in accordance with the provisions of the
Securities and the related coupons, if any, of such series and this Indenture,
to the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
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Holders of Securities of such series, of all sums due and to become due thereon
in respect of principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
3.01, if, after a deposit referred to in Section 15.04(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.12(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 15.04(a) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms of
any Security in respect of which the deposit pursuant to Section 15.04(a) has
been made, the indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 15.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Fifteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 15.04 with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
SECTION 15.06. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Fifteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fifteen with respect to Securities of such series until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 15.05 with respect to Securities of such series in
accordance with this Article Fifteen; provided, however, that if the Company
makes any payment of principal of (or premium, if any) or interest, if any on
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any Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Securities of such
series to recover such payment from the money so held in trust.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 16.01. Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The Company covenants and agrees, and each Holder of a Security by such
Holder's acceptance thereof likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article Sixteen, the
indebtedness represented by the Securities and the payment of the principal of
(and premium, if any) and interest, if any, in respect of each and all of the
Securities are hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness.
SECTION 16.02. Payment Over of Proceeds upon Dissolution, Etc.
----------------------------------------------
Upon any distribution of assets of the Company in the event of
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company,
then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash,
before the Holders of any series of the Securities are entitled to receive
any payment on account of the principal (and premium, if any), or interest,
if any, in respect of the Securities of that series; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for the
provisions of this Article Sixteen, including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of
any series of the Securities, shall be paid by the liquidating trustee or
agent or other person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative or
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representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of (and premium, if any) and interest, if any, on
the Senior Indebtedness held or represented by each, to the extent necessary
to make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
16.02, the Trustee or the Holder of any Security of a series shall receive any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities of that series, before all Senior Indebtedness is paid in full or
payment thereof provided for, and if such fact shall then have been made known
to the Trustee, or such Holder, as the case may be, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article Sixteen only, the words "cash, property or
securities" shall not be deemed to include shares of Capital Stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinated, at least to the extent provided in this Article
Sixteen with respect to the Securities of the applicable series, to the payment
of all Senior Indebtedness which may at the time be outstanding; provided,
however, that (i) Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its assets to another
Person upon the terms and conditions set forth in Article Eight shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section 16.02 if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer all or substantially all of the assets of the Company,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article Eight.
SECTION 16.03. Default on Senior Indebtedness.
------------------------------
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The Company may not make any payment of the principal (and premium, if any)
or interest, if any, in respect of a series of the Securities and may not
acquire any Securities of that series for cash or property if:
(1) a Senior Indebtedness Default shall have happened and shall not
have been cured or waived or shall not have ceased to exist, or
(2) such payment in respect of the Securities of that series would,
immediately after giving effect thereto, result in a Senior Indebtedness
Default.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section 16.03, and if such fact then shall have been known or
thereafter shall have been made known to the Trustee or such Holder, as the case
may be, pursuant to the terms of this Indenture, then except as hereinafter
provided, unless and until any such Senior Indebtedness Default shall have been
cured or waived or shall cease to exist, such payment shall be paid over to the
holders of Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instrument
evidencing the Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay in full all Senior
Indebtedness then due, after giving effect to any concurrent payment to the
holders of such Senior Indebtedness.
Unless and until written notice shall be given to the Trustee by or on
behalf of any holder of Senior Indebtedness notifying it of the existence of one
or more of the circumstances described in clause (1) or (2), above, the Trustee
shall be entitled to assume that no such circumstances exist.
Notwithstanding the existence of any one or more of such circumstances,
nothing in this Article Sixteen or elsewhere in this Indenture shall prevent the
Trustee from applying, for the purposes for which the same were received, any
moneys that may at any time be received by the Trustee in trust pursuant to any
provision of this Indenture, if (x) in the case of a redemption of Securities,
the Trustee shall not have received, prior to the giving of notice of such
redemption, written notice from or on behalf of any holder of any Senior
Indebtedness of the existence of one or more of the circumstances described in
clause (1) or (2), above, or (y) in the case of a deposit for the purpose of any
other payment to Holders, the Trustee shall not have received, at least ten days
prior to the date on which such payment is to be made, written notice from or on
behalf of any holder of any Senior Indebtedness of the existence of one or more
of such circumstances.
The provisions of this Section 16.03 shall not apply to any payment with
respect to which Section 16.02 would be applicable.
SECTION 16.04 Prior Payment to Senior Indebtedness Upon Acceleration
------------------------------------------------------
of Securities.
-------------
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of the Senior Indebtedness
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shall be entitled to receive payment in full of all amounts due on or in respect
of all Senior Indebtedness before the Holders of such Securities shall be
entitled to receive any payment (including any payment which may be payable by
reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) by the Company on account of the
principal of (or premium, if any) or interest, if any, on the Securities or on
account of the purchase or other acquisition of Securities of any series.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section 16.04, and if such fact then shall have been made
known, or thereafter shall have been made known, to the Trustee or such Holder,
as the case may be, pursuant to the terms of this Indenture, then except as
hereinafter provided, such payment shall be paid over and delivered forthwith to
the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 16.02 would be applicable.
SECTION 16.05. Payment Permitted if No Default.
-------------------------------
Nothing contained in this Article Sixteen or elsewhere in this Indenture or
in any of the Securities of a series shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshalling
of assets and liabilities of the Company referred to in Section 16.02 or under
the conditions described in Section 16.02, 16.03 or 16.04, from making payments
at any time of the principal (and premium, if any), or interest, if any, as the
case may be, in respect of the Securities of that series, or (b) the application
by the Trustee or the retention by any Holder of any money deposited with it
hereunder to the payment of or on account of the principal (and premium, if
any), or interest, if any, as the case may be, in respect of the Securities of
that series if the Trustee did not have, at the time provided in the proviso to
the first paragraph of Section 16.10, notice that such payment would have been
prohibited by the provisions of this Article Sixteen.
SECTION 16.06. Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities of a series shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article Sixteen to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the principal (and
premium, if any) or interest, if any, as the case may be, in respect of the
Securities of that series shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities of that series or the Trustee would be entitled except for the
provisions of this Article Sixteen, and no payments pursuant to the provisions
of this Article Sixteen to the Company or to the holders of Senior Indebtedness
by Holders of the Securities of that series or the Trustee, shall, as between
the Company, its creditors other than holders of Senior Indebtedness and the
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Holders of the Securities of that series, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 16.07. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities of each
series, on one hand, and the holders of Senior Indebtedness, on the other hand.
Nothing contained in this Article Sixteen or elsewhere in this Indenture or in
the Securities of a series is intended to or shall:
(a) impair, as between the Company and the Holders of the Securities
of that series, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities of that series the
principal (and premium, if any) and interest, if any, as the case may be, in
respect of the Securities of that series as and when the same shall become
due and payable in accordance with the terms of the Securities of that
series and this Indenture and which, subject to the rights under this
Article Sixteen of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of
the Securities of that series and creditors of the Company, other than
holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security of that series
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article Sixteen of the holders of Senior Indebtedness to receive cash,
property or securities otherwise payable or deliverable to the Trustee or
such Holder.
SECTION 16.08. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security by such Holder's acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided for in this
Article Sixteen and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
SECTION 16.09. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
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Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and, from time to time, without
the consent of, or notice to, the Trustee or the Holders of the Securities of
that series, without incurring responsibility to the Holders of the Securities
of that series and without impairing or releasing the subordination provided in
this Article Sixteen or the obligations hereunder of the Holders of the
Securities of that series to the holders of such Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise dispose of any
property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company or any other Person.
SECTION 16.10. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities of a series. Failure to give such notice
shall not affect the subordination of the Securities of that series to Senior
Indebtedness. Notwithstanding the provisions of this Article Sixteen or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities of a series, unless
and until the Trustee shall have received written notice thereof at the address
specified in Section 1.05 from the Company or a holder of Senior Indebtedness or
from any trustee or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Article Six, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if a Trust Officer of the Trustee shall not have received, at least five
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including, without limitation, the payment
of the principal (and premium, if any), or interest, if any, as the case may be,
in respect of any Security of that series), the notice with respect to such
money provided for in this Section 16.10, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within five Business Days prior to such date.
Subject to the provisions of Article Six, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or agent on behalf of any such holder). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article Sixteen, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Sixteen, and if such evidence is not furnished, the
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Trustee may defer any payment which it may be required to make for the benefit
of such Person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 16.11. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company referred to in
this Article Sixteen, the Trustee, subject to the provisions of Article Six, and
the Holders of the Securities of a series shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities of that
series, for the purpose of ascertaining the persons entitled to participate in
such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Sixteen.
SECTION 16.12. Trustee Not Fiduciary for Holders of Senior Indebtedness.
--------------------------------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
of that series or to the Company or to any other Person cash, property or
securities to which any holders of Senior Indebtedness of that series shall be
entitled by virtue of this Article Sixteen or otherwise. The Trustee shall not
be charged with knowledge of the existence of Senior Indebtedness or of any
facts that would prohibit any payment hereunder unless a Trust Officer of the
Trustee shall have received notice to that effect at the address of the Trustee
set forth in Section 1.05. With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article Sixteen and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
SECTION 16.13. Rights of Trustee as Holder of Senior Indebtedness;
--------------------------------------------------
Preservation of Trustee's Rights.
--------------------------------
The Trustee or any Authenticating Agent in its individual capacity shall be
entitled to all the rights set forth in this Article Sixteen with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article Sixteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.07.
SECTION 16.14. Article Sixteen Applicable to Paying Agents.
-------------------------------------------
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In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article Sixteen shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article Sixteen in addition to or in place of the Trustee;
provided, however, that Sections 16.10 and 16.12 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
ARTICLE SEVENTEEN
CONVERSION OF SECURITIES
SECTION 17.01. Conversion Privilege and Conversion Price.
-----------------------------------------
If, pursuant to Section 3.01, the Securities of a series are convertible
into Common Stock, then, unless otherwise provided in a Board Resolution or
supplemental indenture, the provisions of this Article Seventeen shall apply
with respect to the conversion of such Securities.
If the Securities of a series are convertible into Common Stock, which shall
be specified in the manner contemplated in Section 3.01, then upon compliance
with the provisions of this Article, at the option of the Holder thereof, any
such Security or any portion of the principal amount thereof may be converted
into fully paid and nonassessable shares of Common Stock of the Company, at the
conversion price in effect at the time of conversion. The periods within which
or the dates on which, the prices at which and the terms and conditions upon
which Securities may be so converted shall be specified in the manner
contemplated by Section 3.01. In case a Security or portion thereof is called
for redemption or is repurchased, such conversion right in respect of the
Security or portion so called shall expire at the close of business on the
Redemption Date or the repurchase date, unless the Company defaults in making
the payment due upon redemption or repurchase.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in paragraph (4) of Section 17.04,
the Holder of each Security, upon the conversion thereof pursuant to this
Article subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution and prior to
the effectiveness of the conversion price adjustment in respect of such
distribution pursuant to paragraph (4) of Section 17.04, shall also be entitled
to receive for each share of Common Stock into which such Security is converted,
the portion of the evidences of indebtedness, shares of Capital Stock, cash and
assets so distributed applicable to one share of Common Stock, provided that, at
the election of the Company (whose election shall be evidenced by a Board
Resolution) with respect to all Holders so converting, the Company may, in lieu
of distributing to such Holder any portion of such distribution not consisting
of cash or securities of the Company, pay such Holder an amount in cash equal to
the fair market value thereof (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution). If any
conversion of a Security described in the immediately preceding sentence occurs
prior to the payment date for a distribution to holders of Common Stock that the
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Holder of the Security so converted is entitled to receive in accordance with
the immediately preceding sentence, the Company may elect (such election to be
evidenced by a Board Resolution) to distribute to such Holder a due bill for the
evidences of indebtedness, shares of Capital Stock, cash or assets to which
such Holder is so entitled, provided that such due bill (i) meets any
applicable requirements of the principal national securities exchange or
other market on which the Common Stock is then traded and (ii) requires
payment or delivery of such evidences of indebtedness, shares of Capital
Stock, cash or assets no later than the date of payment or delivery thereof
to holders of Common Stock receiving such distribution.
SECTION 17.02. Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege referred to in this Article
17, the Holder of any Security to be converted shall surrender such Security,
duly endorsed or assigned to the Company or in blank in the case of Registered
Securities, together in the case of Bearer Securities with all matured coupons
and any unmatured coupons in default appertaining thereto, at any office or
agency of the Company maintained for that purpose pursuant to Section 10.02,
accompanied by written notice to the Company at such office or agency that the
Holder elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted.
Registered Securities surrendered for conversion during the period from the
close of business on any Regular Record Date next preceding any Interest Payment
Date to the opening of business on such Interest Payment Date shall (except in
the case of Registered Securities or portions thereof that have been called for
redemption, or are to be repurchased, on such Interest Payment Date or a
Redemption Date or a repurchase date within the period beginning on such Regular
Record Date and ending on such Interest Payment Date) be accompanied by payment
by wire transfer or certified check or other funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on the
principal amount of the Registered Security then being converted. Except as
provided in the preceding sentence and subject to the last paragraph of Section
3.07, no payment or adjustment shall be made upon any conversion on account of
any interest accrued on the securities surrendered for conversion or on account
of any dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the person or persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 17.03.
In the case of any Security that is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security, along with any
coupons appertaining thereto, if applicable.
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SECTION 17.03. Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares that shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or, in the case of Registered Securities,
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock that would otherwise be issuable upon conversion of any Security or
Securities (or, in the case of Registered Securities, specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction in
an amount equal to the same fraction of the Closing Price at the close of
business on the date of conversion.
SECTION 17.04. Adjustment of Conversion Price.
------------------------------
(1) In case the Company shall pay or make a dividend or other distribution
on its Common Stock exclusively in stock or shall pay or make a dividend or
other distribution on any other class of Capital Stock of the Company which
dividend or distribution includes Common Stock, the conversion price in effect
at the opening of business on the day following the day fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion price by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day following
the date fixed for such determination. For the purposes of this paragraph (1),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company shall not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in case
the Company shall pay or make a dividend or other distribution on its Common
Stock consisting exclusively of, or shall otherwise issue to all holders of its
Common Stock, rights or warrants entitling the holders thereof to subscribe for
or purchase shares of Common Stock at a price per share less than the current
market price per share (determined as provided in paragraph (8) of this Section)
of the Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights or warrants, the conversion price in effect at
the opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered for subscription or
purchase would purchase at such current market price and the denominator shall
be the number of shares of Common Stock outstanding at the close of business on
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the date fixed for such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company.
(3) In the event that outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the conversion price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and,
conversely, in the event that outstanding shares of Common Stock shall each be
combined into a smaller number of shares of Common Stock, the conversion price
in effect at the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such subdivision
or combination becomes effective.
(4) Subject to the last sentence of this paragraph (4) and the provisions
of paragraph (7), in the event that the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness,
shares of any class of Capital Stock, cash or other assets (including
securities, but excluding any rights or warrants referred to in paragraph (2) of
this Section, excluding any dividend or distribution paid exclusively in cash
and excluding any dividend or distribution referred to in paragraph (1) of this
section), the conversion price shall be reduced to be equal to the price
determined by multiplying the conversion price in effect immediately prior to
the effectiveness of the conversion price reduction contemplated by this
paragraph (4) by a fraction of which the numerator shall be the current market
price per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date of such effectiveness less the fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), on the date of such
effectiveness, of the portion of the evidences of indebtedness, shares of
Capital Stock, cash and other assets so distributed applicable to one share of
Common Stock and the denominator shall be such current market price per share
of the Common Stock, such reduction to become effective immediately prior to the
opening of business on the day following the later of (a) the date fixed for the
payment of such distribution and (b) the date 20 days after the notice relating
to such distribution is given pursuant to Section 17.06(a) (such later date of
(a) and (b) being referred to as the "Reference Date"). If the Board of
Directors determines the fair market value of any distribution for purposes of
this paragraph (4) by reference to the actual or when issued trading market for
any securities comprising such distribution, it must in doing so consider the
prices in such market over the same period used in computing the current market
price per share pursuant to paragraph (8) of this Section. For purposes of this
paragraph (4), any dividend or distribution that includes shares of Common
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Stock, rights or warrants to subscribe for or purchase shares of Common Stock or
other securities convertible into or exchangeable for shares of Common Stock
shall be deemed instead to be (a) a dividend or distribution of the evidences of
indebtedness, cash, assets or shares of Capital Stock other than such shares of
Common Stock, such rights or warrants or such other convertible or exchangeable
securities (making any conversion price reduction subject to this paragraph
(4)), immediately followed by (b) in the case of such shares of Common Stock or
such rights or warrants, a dividend or distribution thereof (making any further
conversion price reduction subject to paragraph (1) or (2) of this Section,
except (i) the Reference Date of such dividend or distribution as defined in
this paragraph (4) shall be substituted for "the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution" or "the date fixed for the determination of stockholders entitled
to receive such rights or warrants" and "the date fixed for such determination"
within the meaning of paragraphs (1) and (2) of this Section and (ii) any shares
of Common Stock included in such dividend or distribution shall not be deemed
"outstanding at the close of business on the date fixed for such determination"
within the meaning of paragraph (1) of this Section) or (c) in the case of such
other convertible or exchangeable securities, a dividend or distribution of such
number of shares of Common Stock as would then be issuable upon the conversion
or exchange thereof, whether or not the conversion or exchange of such
securities is subject to any conditions (making any further conversion price
reduction subject to paragraph (1) of this Section, except (i) the Reference
Date of such dividend or distribution as defined in this paragraph (4) shall be
substituted as "the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution" and "the date fixed for such
determination" and (ii) the shares deemed to constitute such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination", each within the meaning of paragraph (1) of
this Section).
(5) Intentionally omitted.
(6) Intentionally omitted.
(7) The reclassification of Common Stock into any security or securities
other than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 17.11 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be the
"Reference Date" within the meaning of paragraph (4) of this Section), and (b) a
subdivision or combination, as the case may be, of the shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
becomes effective", or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section). Rights
or warrants issued by the Company to all holders of its Common Stock entitling
the holders thereof to subscribe for or purchase shares of Common Stock or
preferred stock of the Company, which rights or warrants (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuance of Common Stock, in the case of
each of clauses (i) through (iii), until the occurrence of a specified event or
events ("Trigger Event"), shall for purposes of this Section 17.04 not be deemed
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<PAGE>
issued and the distribution thereof not be deemed made or paid until the
occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under this paragraph and paragraphs
(2) and (4) of this Section, the current market price per share of Common
Stock on any date shall be deemed to be the average of the Closing Prices for
the five consecutive Trading Days selected by the Company commencing not more
than 20 Trading Days before, and ending not later than, the date in question;
provided, that such market price shall be appropriately adjusted by the Board
(which adjustment shall be conclusive and shall be evidenced by a Board
Resolution) to take into account the occurrence, during the period commencing on
the first of such Trading Days during such five Trading Days period and ending
on the date in question, of any event that requires an adjustment in the
conversion price under this Section 17.04.
(9) The Company may make such reductions in the conversion price, in
addition to those required by this Section, as it considers to be advisable in
order that any event treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
(10) No adjustment in the conversion price shall be required unless such
adjustment (plus any adjustments not previously made be reason of this paragraph
(10)) would require an increase or decrease of at least 1% in the conversion
price; provided, however, that any adjustments which by reason of this paragraph
(10) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this paragraph (10) shall
be made to the nearest percent.
(11) Notwithstanding any other provision of this Section 17.04, no
adjustment to the conversion price shall (unless permitted by New Jersey law)
reduce the conversion price below the then par value per share of the Common
Stock, and any such purported adjustment shall instead reduce the conversion
price to such par value. The Company hereby covenants not to take any action
that would or does result in any adjustment in the conversion price that, if
made without giving effect to the previous sentence, would cause the conversion
price to be less than the then par value per share of the Common Stock, unless
such action is permitted by New Jersey law.
(12) If all of the shares of the Common Stock issuable upon exercise or
conversion of such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the conversion price shall promptly be
readjusted to the conversion price which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made on
the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
SECTION 17.05. Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the conversion prices are adjusted as herein provided and at such
other times as the Trustee shall request:
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<PAGE>
(a) the Company shall compute the adjusted conversion price in
accordance with Section 17.04 and shall prepare a certificate signed by the
Chief Financial Officer of the Company setting forth the adjusted conversion
price and showing in reasonable detail the facts upon which such adjustment
is based, and such certificate shall forthwith be delivered to the Trustee
and filed at each office or agency maintained for the purpose of conversion
of Securities pursuant to Section 10.02. The certificate shall be
conclusive evidence that the adjustment is correct. The Trustee shall not
be under any duty or responsibility with respect to any such certificate
except to exhibit the same to any Holder desiring inspection thereof; and
(b) a notice stating that the conversion price has been adjusted and
setting forth the adjusted conversion price shall forthwith be required,
and, when the conversion price is adjusted, as soon as practicable after it
is required, the Company shall cause such notice to be mailed to all Holders
of Registered Securities at their last address as they shall appear in the
Security Register.
SECTION 17.06 Notice of Certain Corporate Action.
----------------------------------
In the event:
(a) that the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
(b) that the Company shall authorize the granting to the holders of
its Common Stock generally of rights or warrants to subscribe for or
purchase any shares of Capital Stock of any class or of any other rights; or
(c) of the occurrence of any reclassification of the Common Stock of
the Company (other than a subdivision or combination of the outstanding
shares of Common Stock), or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the Company
is required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company.
then the Company shall notify the Trustee and cause to be filed at each office
or agency maintained for the purpose of conversion of securities pursuant to
Section 10.02, and shall cause to be mailed to all Holders of Registered
Securities which are subject to the provisions of this Article Seventeen, at
their last addresses as they shall appear in the Security Register, at least 20
days (or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution,
rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution,
rights or warrants are to be determined or (y) the date on which such
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<PAGE>
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
SECTION 17.07. Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Securities.
SECTION 17.08. Taxes on Conversions.
--------------------
The Company will pay any and all taxes, other than any franchise or income
taxes, that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. The Company shall
not, however, be required to pay any tax that may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
SECTION 17.09. Covenant as to Common Stock.
---------------------------
The Company covenants that all shares of Common Stock that may be issued
upon conversion of Securities will upon issue be fully paid and nonassessable
and, except as provided in Section 17.08, the Company will pay all taxes, liens
and charges with respect to the issue thereof.
SECTION 17.10. Cancellation of Converted Securities, etc.
-----------------------------------------
All Securities delivered for conversion shall be delivered to the Trustee to
be canceled by or at the direction of the Trustee, which shall dispose of the
same as provided in Section 3.10.
SECTION 17.11. Provision in the Case of Consolidation, Merger or
-------------------------------------------------
Sales of Assets.
---------------
In the event of any consolidation of the Company with, or merger of the
Company into, any other corporation, or in the event of any merger of another
corporation into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), or in the event of any sale or transfer of all or
substantially all of the assets of the Company, the corporation formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security subject to the provisions
of this Article Seventeen then outstanding shall have the right thereafter,
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<PAGE>
during the period such Security shall be convertible as specified in Section
17.01, to convert such Security only into the kind and amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer by a holder of the number of shares of Common Stock of the Company into
which such Security might have been converted immediately prior to such
consolidation, merger, sale or transfer, assuming such holder of Common Stock of
the Company failed to exercise its rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer is not the same for each share of Common Stock in respect of
which such rights of election shall not have been exercised ("non-electing
share"), then for the purpose of this Section, the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer by each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing shares).
Such supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
SECTION 17.12. Trustee's Adjustment Disclaimer.
-------------------------------
The Trustee has no duty to determine when an adjustment under this Article
17 should be made, how it should be made or what it should be. The Trustee has
no duty to determine whether a supplemental indenture under Section 17.11 need
be entered into or whether any provisions of any supplemental indenture are
correct. The Trustee shall not be accountable for and makes no representation
as to the validity or value of any securities or assets issued upon conversion
of Securities. The Trustee shall not be responsible for the Company's failure
to comply with this Article 17.
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<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 the day and year first above written.
BERGEN BRUNSWIG CORPORATION
By: _____________________________
Attest:
______________________________
CHEMICAL TRUST COMPANY OF
CALIFORNIA, as Trustee
By: _____________________________
Attest:
______________________________
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<PAGE>
STATE OF CALIFORNIA
COUNTY OF ORANGE
On the ______ day of ____________, 1996, before me personally came _______
___________________, to me known, who, being by me duly sworn, did depose and
say that he resides at ______________, California and that he is _____________
of Bergen Brunswig Corporation, one of the corporations described in and which
executed the foregoing instrument; and that he signed his name thereto by
authority of the board of directors of Bergen Brunswig Corporation.
_______________________________
Notary Public
_______________________________
(Notarial Seal)
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<PAGE>
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
On the ______ day of ____________, 1996, before me personally came _______
___________________, to me known, who, being by me duly sworn, did depose and
say that he resides at ______________, California and that he is _____________
of Chemical Trust Company of California, one of the parties described in and
which executed the above instrument; and that he signed his name thereto by
authority of the Board of Directors of Chemical Trust Company of California.
_______________________________
Notary Public
_______________________________
(Notarial Seal)
- 108 -
<PAGE>
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States Person(s) that are
(a) foreign branch(es) of United States financial Institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v), are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own behalf or through its
agent, that you may advise Bergen Brunswig Corporation, or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Codes of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (including the Commonwealth of Puerto
Rico).
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] ______________ of
such interest in the above-captioned Securities in respect of which we are not
A-1-1
<PAGE>
able to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________________, 19 __
[To be dated no earlier than (i) the
Exchange Date or (ii) the relevant
Interest Payment Date occurring prior
to the Exchange Date, as applicable]
[Name of Person Making Certification]
_______________________________
(Authorized Signatory)
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the persons appearing in our records as persons entitled to a portion of the
principal amount set forth below (our "Member Organizations") substantially in
the form attached hereto, as of the date hereof, [U.S.$]_________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v), are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Bergen Brunswig
Corporation or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (including the
Commonwealth of Puerto Rico).
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
A-2-1
<PAGE>
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.
Dated: ______________, 19__
[To be dated no earlier than the
Exchange Date or the relevant
Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[Cedal S.A.]
By_______________________________
A-2-2
<TABLE>
<CAPTION>
Exhibit 12.1
BERGEN BRUNSWIG CORPORATION
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE THREE MONTHS ENDED DECEMBER 31, 1995 AND 1994,
THE YEARS ENDED SEPTEMBER 30, 1995 AND 1994,
AND THE YEARS ENDED AUGUST 31, 1993, 1992 AND 1991
(In thousands, except ratios)
Three Months Year Ended
Ended -------------------------------------------------
December 31, September 30, August 31,
---------------- ------------------ ----------------------------
1995 1994 1995 1994 1993 1992 1991
---------------- ------------------ ----------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest and amortization of debt issuance costs.. $ 8,431 $ 7,389 $ 32,800 $ 25,039 $ 27,085 $ 15,476 $ 14,528
Portion of rental expense representing interest... 1,480 1,463 5,661 5,299 5,495 4,935 5,281
------- ------- -------- -------- -------- -------- --------
Total fixed charges........................... 9,911 8,852 38,461 30,338 32,580 20,411 19,809
Earnings:
Earnings from continuing operations before
taxes on income................................. 26,943 23,360 109,490 98,112 48,260 83,470 89,626
------- ------- -------- -------- -------- -------- --------
Total earnings................................ $36,854 $32,212 $147,951 $128,450 $ 80,840 $103,881 $109,435
======= ======= ======== ======== ======== ======== ========
Ratio of earnings to fixed charges.................. 3.7 3.6 3.8 4.2 2.5 5.1 5.5
======= ======= ======== ======== ======== ======== ========
</TABLE>
