<PAGE>
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 14, 1999
REGISTRATION NO. 333-74349
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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
------------------------
<TABLE>
<S> <C> <C>
BERGEN BRUNSWIG CORPORATION NEW JERSEY 22-1444512
BERGEN CAPITAL TRUST I DELAWARE APPLIED FOR
BERGEN CAPITAL TRUST II DELAWARE APPLIED FOR
BERGEN CAPITAL TRUST III DELAWARE APPLIED FOR
(Exact name of registrant as (state or other jurisdiction (I.R.S. Employer
specified in its charter) of incorporation or Identification No.)
organization)
</TABLE>
------------------------
4000 METROPOLITAN DRIVE
ORANGE, CALIFORNIA 92868-3598
(714) 385-4000
(Address, including zip code, and telephone number,
including area code, of each registrant's principal executive offices)
------------------------
MILAN A. SAWDEI
EXECUTIVE VICE PRESIDENT, CHIEF LEGAL OFFICER AND SECRETARY
4000 METROPOLITAN DRIVE
ORANGE, CALIFORNIA 92868-3598
(714) 385-4255
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
Copy to: PETER H. EHRENBERG, ESQ.
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, please 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/
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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.
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AGGREGATE AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED(1) REGISTERED(1)(2) PER UNIT(3) PRICE(3)(4) FEE
<S> <C> <C> <C> <C>
Debt Securities.
Preferred Securities of Bergen Capital Trust I,
Bergen Capital Trust II and Bergen Capital Trust
III.
Guarantees of Preferred Securities of Bergen
Capital Trust I, Bergen Capital Trust II and
Bergen Capital Trust III by Bergen Brunswig
Corporation (5)
Class A Common Stock, par value $1.50 per share,
of Bergen Brunswig Corporation (including
preferred share purchase rights) (6)
Total. $300,000,000(7) 100% $300,000,000(7) $83,400(8)
</TABLE>
(1) Such indeterminate principal amount of Debt Securities and Guarantees and
such indeterminate number of Preferred Securities as may from time to time
be issued at indeterminate prices, with an aggregate public offering price
not to exceed $300,000,000. Certain Debt Securities may be issued and sold
to any or all of Bergen Capital Trust I, Bergen Capital Trust II and Bergen
Capital Trust III, in which event such Debt Securities may later be
distributed to the holders of Preferred Securities.
(2) In United States dollars or the equivalent thereof in one or more foreign
currencies, composite currencies or currency units as shall result in an
aggregate initial offering price for all securities of $300,000,000. If any
of the Debt Securities are issued at a discount from their principal amount,
the principal amount will be increased such that the aggregate initial
offering price will equal $300,000,000.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 of the rules and regulations under the Securities Act
of 1933.
(4) Such amount represents (a) the principal amount of any Debt Securities
issued at their principal amounts, (b) the issue price rather than the
principal amount of any Debt Securities issued at an original issue
discount, and (c) the issue price of any Preferred Securities.
(5) No separate consideration will be received for any Guarantees. The
Guarantees include the rights of holders of Preferred Securities under the
Guarantees and certain back-up undertakings, comprised of obligations of
Bergen under the Indentures and any supplemental indentures thereto and
pursuant to the Declarations of Trust to provide certain indemnities in
respect of, and be responsible for certain costs, expenses, debts and
liabilities of, each of Bergen Capital Trust I, Bergen Capital Trust II and
Bergen Capital Trust III, each as described in the registration statement.
All obligations under the Declarations of Trust, including the indemnity
obligation, are included in the back-up undertakings.
(6) Such indeterminate number of shares of Class A Common Stock as may be
issuable upon conversion of any Preferred Securities or Debt Securities
registered hereunder having conversion rights ("Convertible Securities"),
including such shares as may be issued pursuant to anti-dilution
adjustments. No separate consideration will be received for any shares of
Class A Common Stock issuable upon conversion of Convertible Securities.
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.
(7) Does not include an additional $400,000,000 of securities previously
registered by the Registrant under its Registration Statement on Form S-3
(File No. 333-631) which are being carried forward pursuant to Rule 429
under the Securities Act of 1933, as amended.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, this
Registration Statement relates to the $300,000,000 of securities registered
hereby and to the remaining unsold $400,000,000 of such securities
previously registered by the Registrant under its Registration Statement on
Form S-3 (File No. 333-631).
(8) Previously paid.
2
<PAGE>
PROSPECTUS
- -------------
$700,000,000
[LOGO]
SENIOR DEBT SECURITIES AND SUBORDINATED DEBT SECURITIES
BERGEN CAPITAL TRUST I
BERGEN CAPITAL TRUST II
BERGEN CAPITAL TRUST III
PREFERRED SECURITIES GUARANTEED TO THE EXTENT SET FORTH HEREIN BY BERGEN
BRUNSWIG CORPORATION
- ------------------------------------------------------------
BERGEN:
- - will pay principal, premium (if any) and interest on its senior debt
securities and, subject to payment of its senior debt, on its subordinated
debt securities; and
- - will guarantee the payment by each trust of the preferred securities based on
several obligations described in this prospectus.
THE TRUSTS:
Bergen Capital Trust I, Bergen Capital Trust II and Bergen Capital Trust III
are Delaware business trusts. Each trust has been established to:
- - sell preferred securities (representing undivided beneficial interests in the
trust) to the public;
- - sell common securities (representing undivided beneficial interests in the
trust) to Bergen;
- - use the proceeds from these sales to buy an equal amount of subordinated debt
securities of Bergen; and
- - distribute the cash payments it receives on the subordinated debt securities
it owns to the holders of the preferred and common securities.
WE WILL PROVIDE THE SPECIFIC TERMS OF THESE SECURITIES IN SUPPLEMENTS TO
THIS PROSPECTUS. YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENT CAREFULLY
BEFORE YOU INVEST.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT IS TRUTHFUL OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
The date of this prospectus is May 14, 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Forward-Looking Statements................................................................................. 2
About This Prospectus...................................................................................... 3
Where You Can Find More Information........................................................................ 4
Bergen..................................................................................................... 5
The Trusts................................................................................................. 5
Use of Proceeds............................................................................................ 6
Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and Preferred Stock Dividends... 6
Description of Securities.................................................................................. 6
Description of Debt Securities............................................................................. 6
Description of Preferred Securities........................................................................ 15
Description of Preferred Securities Guarantees............................................................. 22
Relationship among Preferred Securities, Preferred Securities Guarantees and Subordinated
Debt Securities Held by Each Trust....................................................................... 24
Description of Class A Common Stock........................................................................ 25
Other Matters Applicable to the Securities................................................................. 25
Plan of Distribution....................................................................................... 26
Legal Opinions............................................................................................. 27
Experts.................................................................................................... 27
</TABLE>
FORWARD-LOOKING STATEMENTS
This prospectus includes or incorporates by reference forward-looking
statements, including those identified by the words "believes," "anticipates,"
"expects" and similar expressions. Bergen has based these forward-looking
statements on its current expectations and projections about future events.
These forward-looking statements are subject to risks, uncertainties, and
assumptions about Bergen, including, among other things:
- uncertainties relating to general economic conditions;
- the loss of one or more key customer or supplier relationships, including
pharmaceutical or medical-surgical manufacturers for which alternative
supplies may not be available;
- the malfunction or failure of Bergen's information systems, including
malfunctions or failures associated with Year 2000 compliance or readiness
issues;
- the costs and difficulties related to the integration of recently acquired
businesses, including the status of such companies' compliance with Year
2000 protocols;
- changes to the presentation of financial results and position resulting
from adoption of new accounting principles or upon the advice of Bergen's
independent auditors, or the staff of the Securities and Exchange
Commission;
- changes in the distribution or outsourcing pattern for pharmaceutical or
medical-surgical products and/or services, including any increase in
direct distribution or decrease in contract packaging by pharmaceutical
manufacturers;
- application of, changes in, or failure to comply with, government
regulations;
2
<PAGE>
- the costs and other effects of legal and administrative proceedings and
governmental audits;
- competitive factors in Bergen's healthcare service businesses, including
pricing pressures;
- the continued financial viability and success of Bergen's customers and
suppliers;
- technological developments and products offered by competitors;
- failure to retain or continue to attract senior management or key
personnel;
- risks associated with international operations, including fluctuations in
currency exchange ratios;
- successful challenges to the validity of the Company's patents, copyrights
and trademarks;
- difficulties or delays in the development, production and marketing of new
products and services;
- strikes or other labor disruptions;
- labor and employee benefit costs;
- injuries to persons or property resulting from the operation of Bergen's
businesses;
- pharmaceutical and medical-surgical manufacturers' pricing policies and
overall drug and medical-surgical supply price inflation;
- changes in buying practices of hospital buying groups or hospitals;
- availability and cost of attractive acquisition candidates;
- the continuation of various trends in the long-term care market (including
the trends toward consolidation, cost containment and the implementation
of the Medicare prospective payment system); and
- the effect of reforms of the healthcare delivery system.
Bergen has no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus or in the incorporated documents might not
occur.
You should rely only on the information contained or incorporated by
reference in this prospectus and any accompanying prospectus supplements. Bergen
has not authorized any other person to provide you with different information.
If anyone provides you with different or inconsistent information, you should
not rely on it. Bergen is not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should not assume
that the information contained in this prospectus and any accompanying
prospectus supplement is accurate as of any date other than the respective dates
of such documents. Our business, financial condition, results of operations and
prospects may have changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Bergen filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under this shelf registration process, Bergen and the trusts described in this
prospectus may sell any combination of the securities described in this
prospectus in one or more offerings up to a total dollar amount of $700,000,000.
This prospectus provides you with a general description of the securities Bergen
and the trusts may offer. Each time Bergen and the trusts sell securities,
Bergen will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
3
<PAGE>
WHERE YOU CAN FIND MORE
INFORMATION
Bergen files reports, proxy statements, and other information with the
Securities and Exchange Commission ("SEC"). Such reports, proxy statements, and
other information concerning Bergen can be read and copied at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the Public Reference Room.
The SEC maintains an internet site at http://www.sec.gov that contains reports,
proxy and information statements and other information regarding issuers that
file electronically with the SEC, including Bergen. Bergen's Class A Common
Stock is listed and traded on the New York Stock Exchange ("NYSE"). Bergen's
reports, proxy statements and other information are also available for
inspection at the offices of the NYSE, 20 Broad Street, New York, New York
10005.
This prospectus is part of a registration statement filed with the SEC by
Bergen and the trusts. The full registration statement can be obtained from the
SEC as indicated above or from Bergen.
The SEC allows Bergen to "incorporate by reference" the information it files
with the SEC. This permits Bergen to disclose important information to you by
referencing these filed documents. Any information referenced this way is
considered part of this prospectus, and any information filed with the SEC
subsequent to this prospectus will automatically be deemed to update and
supersede this information. Bergen incorporates by reference the following
documents which have been filed with the SEC:
- Annual Report on Form 10-K for the fiscal year ended September 30, 1998,
as amended;
- Quarterly Report on Form 10-Q for the quarter ended December 31, 1998;
- Current Reports on Form 8-K, dated November 12, 1998, January 13, 1999,
January 26, 1999, April 19, 1999 and April 30, 1999;
- the description of Bergen's Shareowners' Rights Plan contained in Bergen's
Registration Statement on Form 8-A dated February 14, 1994; and
- the description of Bergen's Common Stock contained in Bergen's
Registration Statement on Form S-4 declared effective by the SEC on March
16, 1999.
Bergen also incorporates by reference any future filings made with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act"), including any such filings made after the filing of
the first amendment to Bergen's registration statement and prior to the
effectiveness of such registration statement, until the offering or offerings of
all of the debt securities and preferred securities are completed.
Bergen will provide without charge, upon request, a copy of any or all of
the documents that are incorporated by reference in this prospectus. Requests
should be directed to Bergen Brunswig Corporation, 4000 Metropolitan Drive,
Orange, California 92868, Attn: Milan A. Sawdei, Executive Vice President, Chief
Legal Officer and Secretary; telephone: (714) 385-4000.
There are no separate financial statements of the trusts in this prospectus.
Bergen does not believe that these financial statements would be helpful
because:
- The trusts currently are wholly-owned by Bergen, which files consolidated
financial information under the Exchange Act.
- The trusts do not have any independent operations other than issuing the
preferred and common securities and purchasing the subordinated debt
securities.
- Bergen guarantees the preferred securities of the trusts as described in
this prospectus.
4
<PAGE>
BERGEN
Bergen is one of the nation's leading supply chain management companies,
providing pharmaceuticals, medical-surgical supplies and specialty products as
well as information management solutions and outsourcing services designed to
improve cost effectiveness and increase value for customers, patients and
manufacturers across the entire healthcare spectrum. Bergen also develops
disease-specific treatment protocols and pharmacoeconomic initiatives to assist
in the reduction of overall healthcare costs while improving disease management
and outcomes. Bergen's executive offices are located at 4000 Metropolitan Drive,
Orange, California 92868; telephone (714) 385-4000.
THE TRUSTS
Bergen has created three Delaware business trusts pursuant to three
Declarations of Trust. The trusts are named Bergen Capital Trust I, Bergen
Capital Trust II and Bergen Capital Trust III. Bergen will file an Amended and
Restated Declaration of Trust (a "Declaration") for each trust, which will state
the terms and conditions for each trust to issue and sell its preferred
securities and common securities. A form of Declaration is filed as an exhibit
to the registration statement of which this prospectus forms a part.
Each trust will exist solely to:
- issue and sell its preferred and common securities;
- use the proceeds from the sale of its preferred and common securities to
purchase a series of Bergen's subordinated debt securities;
- maintain its status as a grantor trust for United States federal income
tax purposes; and
- engage in other activities that are necessary or incidental to these
purposes.
Each trust will be utilized for a single offering of preferred and common
securities. Thus, there may be up to three offerings of such securities from
time to time.
Bergen will purchase all of the common securities of each trust. The common
securities will represent an aggregate liquidation amount equal to at least 3%
of each trust's total capitalization. The preferred securities will represent
the remaining 97% of such trust's total capitalization. Other than voting
rights, the common securities will have terms substantially identical to, and
will rank equal in priority of payment with, the preferred securities. However,
if Bergen defaults on the related subordinated debt securities, then cash
distributions and liquidation, redemption and other amounts payable on the
common securities will be subordinate to the preferred securities in priority of
payment.
The prospectus supplement will specify whether or not the preferred
securities are convertible. If the preferred securities are convertible, they
will be convertible into shares of Bergen's Class A Common Stock, par value
$1.50 per share, in accordance with the terms described in the prospectus
supplement.
The preferred securities will be guaranteed by Bergen as described later in
this prospectus.
Bergen has appointed the following five trustees to conduct each trust's
business and affairs:
- Chase Manhattan Bank and Trust Company, National Association ("Property
Trustee");
- Chase Manhattan Bank Delaware ("Delaware Trustee"); and
- three Bergen officers ("Regular Trustees").
Only Bergen, as owner of the common securities, can remove or replace the
trustees. In addition, Bergen can increase or decrease the number of trustees.
However, the majority of trustees will always be Regular Trustees.
Bergen will pay all fees and expenses related to each trust and each
offering of the related preferred securities and will pay all ongoing costs and
expenses of each trust, except for the trust's obligations under the related
preferred and common securities.
5
<PAGE>
The trusts will not have separate financial statements. The statements would
not be material to holders of the preferred securities because no trust will
have any independent operations. Each trust exists solely for the reasons
summarized above.
USE OF PROCEEDS
Bergen will use the net proceeds that it receives from the sale of
securities offered under this prospectus for general corporate purposes,
including the retirement of outstanding debt of Bergen, Bergen's subsidiaries
and entities which Bergen may acquire in the future. Each trust will use all
proceeds from the sale of the common and preferred securities to purchase
subordinated debt securities of Bergen. The prospectus supplement with respect
to any offering of securities may identify different or additional uses for the
proceeds of such offering.
RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK
DIVIDENDS
The following table sets forth Bergen's consolidated ratios of earnings to
fixed charges and earnings to combined fixed charges and preferred stock
dividends based on the historical results of Bergen and its subsidiaries. For
the purpose of calculating these ratios, earnings consist of income before
income taxes and fixed charges. Fixed charges include interest and debt expense,
including the portion of lease rentals representative of the interest factor.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED SEPTEMBER 30, MARCH 31,
-------------------------------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
1994 1995 1996 1997 1998 1998 1999
----- ----- ----- ----- ----- ----- -----
Ratio of
Earnings to
Fixed
Charges....... 4.2x 3.8x 4.4x 4.5x 2.4x 4.0x 4.8x
Ratio of
Earnings to
Combined Fixed
Charges and
Preferred
Stock
Dividends*.... 4.2x 3.8x 4.4x 4.5x 2.4x 4.0x 4.8x
</TABLE>
- ------------------------
*There were no dividends on preferred stock during any of the periods presented.
DESCRIPTION OF SECURITIES
This prospectus contains a summary of the senior debt securities, the
subordinated debt securities, the preferred securities, the preferred securities
guarantee and Bergen's Class A Common Stock. These summaries are not meant to be
a complete description of each security. However, this prospectus and the
accompanying prospectus supplement contain the material terms and conditions for
each security. For more information, please refer to (1) the indenture (the
"Senior Indenture"), dated as of May 14, 1999, between Bergen and Chase
Manhattan Bank and Trust Company, National Association ("Chase Manhattan Bank
and Trust Company"), as trustee ("Senior Indenture Trustee"), relating to the
issuance of each series of senior debt securities, (2) the indenture (the
"Subordinated Indenture"), dated as of May 14, 1999, between Bergen and Chase
Manhattan Bank and Trust Company, as trustee (the "Subordinated Indenture
Trustee"), relating to the issuance of each series of subordinated debt
securities, (3) the Declaration of each trust, (4) Bergen's guarantee of the
preferred securities issued by each trust (the "Preferred Securities
Guarantees") and (5) Bergen's Restated Certificate of Incorporation, as amended.
Forms of these documents are filed as exhibits to the registration statement of
which this prospectus forms a part.
DESCRIPTION OF DEBT SECURITIES
GENERAL
From time to time Bergen may issue debt securities in one or more series--as
either senior securities ("Senior Debt Securities") or subordinated securities
("Subordinated Debt Securities"). The term "Debt Securities" refers to both the
Senior Debt Securities and the Subordinated Debt Securities. Certain general
terms of the Debt Securities are described below. The particular terms of a
series of Debt Securities will be described in a prospectus supplement.
If Bergen issues Senior Debt Securities (other than the LYONs-TM-(*)
discussed below), the
- ------------------------------
* Trademark of Merrill Lynch & Co., Inc.
6
<PAGE>
Senior Debt Securities would be issued under the Senior Indenture. Bergen would
issue the Subordinated Debt Securities (other than the LYONs) under the
Subordinated Indenture. Bergen 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 LYONs are issued. The term
"Indentures" means the Senior Indenture, the Subordinated Indenture and the
LYONs Indenture, each of which will be subject to and governed by the Trust
Indenture Act of 1939 (the "Trust Indenture Act"). The term "Trustee" means the
trustee under each of the Senior Indenture, the Subordinated Indenture and the
LYONs Indenture.
The Indentures do not limit the amount of Debt Securities that Bergen may
issue, nor do they limit Bergen or its subsidiaries from issuing any other
unsecured debt. The Debt Securities offered by this prospectus will be limited
to $700,000,000 in aggregate principal amount.
The Senior Debt Securities will rank equally with all of Bergen's senior and
unsubordinated debt. Each series of Senior Debt Securities will be unsecured.
Each series of Subordinated Debt Securities will be unsecured and will be
subordinate and junior in priority of payment to certain of Bergen's other
indebtedness to the extent described in a prospectus supplement.
The Debt Securities are obligations exclusively of Bergen, which is a
holding company. Its principal assets are its direct or indirect ownership of
the capital stock of its subsidiaries, cash, marketable securities and real
estate. Because Bergen's operations are currently conducted through
subsidiaries, the cash flow and the consequent ability to service Bergen's debt,
including the Debt Securities, are substantially dependent upon the earnings of
its subsidiaries and the distribution of those earnings to Bergen or upon loans
or other payments of funds by those subsidiaries to Bergen. The subsidiaries are
separate and distinct legal entities and, except to the extent, if any,
described in a prospectus supplement pertaining to particular series of Debt
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 Bergen 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 Bergen's subsidiaries. Any right
of Bergen 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 Bergen is itself recognized as a non-subordinated creditor of such
subsidiary, in which case Bergen's 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 Bergen.
The Senior Indenture and Subordinated Indenture 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 Bergen or any
of its subsidiaries. Reference is made to the prospectus supplement relating to
a particular series of Debt Securities 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.
Each prospectus supplement will describe the following terms relating to a
series of Debt Securities:
- the title;
7
<PAGE>
- any limit on the amount that may be issued;
- whether the series of Debt Securities will be issued as registered
securities, bearer securities or both;
- the price at which the series of Debt Securities will be issued, which may
be at a discount or premium;
- whether or not the series of Debt Securities will be issued in global
form, and, if so, the terms and who the depositary will be;
- the maturity date(s);
- the person to whom any interest will be payable on any registered
security, if other than the person in whose name such security is
registered at the close of business on the regular record date;
- the annual interest rate(s) (which may be fixed or variable), if any, or
the method for determining the rate(s), and the date(s) interest will
begin to accrue, the date(s) interest will be payable and the regular
record date(s) for interest payment date(s) or the method for determining
such date(s);
- the place(s) where payments shall be payable, registered securities may be
surrendered for registration of transfer, securities may be surrendered
for exchange, and notices and demands to or upon Bergen may be served;
- the period(s) within which, and the price(s) at which, such series of Debt
Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed, in whole or in part, and other related terms and
provisions;
- any mandatory or optional sinking fund provisions or any provisions for
remarketing the securities and other related terms and provisions;
- the denominations in which the series of Debt Securities will be issued,
in the case of registered securities, if other than denominations of
$1,000 and any integral multiple thereof, and, in the case of bearer
securities, if other than denominations of $5,000 and any integral
multiple of $5,000;
- the currency or currencies, including composite currencies or currency
units, in which the series of Debt Securities may be denominated or in
which payment of the principal of, premium, if any, and interest, if any,
on the series of Debt Securities will be payable, if other than the
currency of the United States of America, and, if so, whether the series
of Debt Securities may be satisfied and discharged other than as provided
in the applicable Indenture;
- if the amounts of payments of principal of and interest, if any, on the
series of Debt Securities are to be determined with reference to an index,
formula or other method, or based on a coin or currency other than that in
which the series of Debt Securities are stated to be payable, the manner
in which such amounts shall be determined and the calculation agent, if
any;
- if other than the entire principal amount, the portion of the principal
amount of the series of Debt Securities that will be payable upon
acceleration of the maturity pursuant to an event of default;
- whether the series of Debt Securities is to be convertible into Bergen's
Class A Common Stock and, if so, the conversion rate and the extent to
which such conversion rate will be subject to anti-dilution provisions;
- if other than as defined in the applicable Indenture, the meaning of
"Business Day" when used with respect to the series of Debt Securities;
- if the series of Debt Securities may be issued or delivered (whether upon
original issuance or upon exchange of a temporary security of such series
or otherwise), or any installment of principal, premium or interest is
payable, only upon receipt of certain certificates or other documents or
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satisfaction of other conditions in addition to those specified in the
applicable Indenture, the forms and terms of such certificates, documents
or conditions;
- the right, if any, to extend the interest payment periods or defer
interest payments and the duration of the extensions or deferrals;
- the terms, if any, pursuant to which any series of Subordinated Debt
Securities will be subordinate to any of Bergen's debt;
- any addition to, or modification or deletion of, any event of default,
covenant of Bergen or other term or provision specified in the applicable
Indenture with respect to the series of Debt Securities; and
- any other terms (which terms may be inconsistent with the applicable
Indenture).
One or more series of Debt Securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates. Federal income tax
consequences and special considerations applicable to such an offering will be
described in the applicable prospectus supplement.
CONSOLIDATION, MERGER OR SALE
The Indentures generally permit Bergen to merge or consolidate, or sell,
convey, transfer or otherwise dispose of its assets as an entirety or
substantially as an entirety, provided that no event of default would occur as a
result of such transaction. However, any successor or acquiror of such assets
must assume all of the obligations of Bergen under the Indentures and the Debt
Securities and be organized and existing under the laws of the United States,
any state, or the District of Columbia.
SUBORDINATION
If Bergen's assets are distributed upon dissolution, winding up, liquidation
or reorganization, the payment of the principal of (and premium, if any) and
interest on Subordinated Debt Securities will be subordinated, to the extent
provided in the Subordinated Indenture and any applicable supplemental
indenture, to the prior payment in full of all senior indebtedness, including
Senior Debt Securities. No payment on account of principal (or premium, if any),
sinking fund or interest may be made on Subordinated Debt Securities at any time
when there is a default in the payment of principal, premium, if any, sinking
fund or interest on senior indebtedness. If, while there is a default on senior
indebtedness, any payment is received by the Subordinated Trustee under the
Subordinated Indenture or the holders of any Subordinated Debt Securities before
all senior indebtedness has been paid in full, such payment or distribution must
be paid over to the holders of the unpaid senior indebtedness or applied to the
repayment of the unpaid senior indebtedness. Subject to paying the senior
indebtedness in full, the holders of Subordinated Debt Securities will be
subrogated to the rights of the holders of senior indebtedness to the extent
that payments are made to the holders of senior indebtedness out of amounts
otherwise payable with respect to the Subordinated Debt Securities.
Due to such subordination, if Bergen's assets are distributed upon
insolvency, certain of our general creditors may recover more, ratably, than
holders of Subordinated Debt Securities. The Subordinated Indenture or any
applicable supplemental indenture may state that its subordination provisions
will not apply to money and securities held in trust under the satisfaction and
discharge provisions and the legal defeasance provisions of the Subordinated
Indenture.
If this prospectus is being delivered in connection with the offering of a
series of Subordinated Debt Securities, the accompanying prospectus supplement
or the information incorporated by reference in it will set forth the
approximate amount of senior indebtedness outstanding as of a recent date.
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CERTAIN COVENANTS
If Bergen agrees to material covenants with respect to a particular series
of Debt Securities, such covenants will be described in the applicable
prospectus supplement and will be added to the applicable Indenture by means of
a supplemental indenture or other appropriate documentation.
CONVERSION RIGHTS
If a particular series of Debt Securities is convertible, the terms and
conditions, if any, on which such Debt Securities are convertible into Bergen's
Class A Common Stock or other Bergen securities will be set forth in the
applicable prospectus supplement. Such terms will include the conversion price,
the conversion period, provisions as to whether conversion will be at the option
of the holder or Bergen, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event that the Debt Securities
are redeemed.
EVENTS OF DEFAULT
In addition to any other event of default specified in the prospectus
supplement relating to a series of Debt Securities, the following are events of
default under the Indentures with respect to any series of Debt Securities
issued unless otherwise specified in the prospectus supplement relating to such
series:
- default in the payment of any principal of, or any premium on, such
series;
- default in the payment of any installment of interest on such series and
continuance of such default for a period of 30 days;
- 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;
- default in the performance of any other covenant in the applicable
Indenture with respect to such series and continuance of such default for
a period of 90 days after receipt by Bergen of notice of such default from
the Trustee or receipt by Bergen and the Trustee of notice of such default
from the holders of at least 25% in aggregate principal amount of the Debt
Securities of such series then outstanding;
- acceleration or non-payment at maturity of (i) indebtedness for borrowed
money of Bergen or any subsidiary or (ii) any guarantee of payment by
Bergen or any subsidiary of any obligation of any person or entity, in
either case in excess of $25,000,000, 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 written
notice; and
- certain events of bankruptcy, insolvency or reorganization of Bergen.
If a series of Subordinated Debt Securities is held by a trust, it would
also be an event of default if such trust voluntarily or involuntarily
dissolves, winds up or terminates, except in connection with:
- the distribution of such Subordinated Debt Securities to holders of
preferred and common securities of such trust;
- the redemption of all of the preferred and common securities of such
trust; or
- mergers, consolidations or amalgamations permitted by the Declaration of
such trust.
If an event of default with respect to Debt Securities of any series occurs
and is continuing, the Trustee or the holders of at least 25% in principal
amount of the outstanding Debt Securities of that series, by notice in writing
to Bergen (and to the Trustee if notice is given by such holders), may declare
due the principal of (or if such Debt Securities are discount securities, the
portion of the principal amount as specified in the applicable prospectus
supplement), premium, if any, and accrued interest, if any, and call for
immediate payment. The holders of a majority in aggregate principal amount of
the outstanding Debt Securities of an affected series (or if Subordinated Debt
Securities of an affected series are held by a trust, the holders of at least a
majority in
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aggregate liquidation amount of the trust's preferred securities) may waive any
past default or event of default of such series, except defaults or events of
default regarding:
- payment of principal, interest or sinking fund obligations, if any; or
- covenants that cannot be modified or amended without the consent of each
holder of any outstanding Debt Securities affected (as described under
"--Modification of Indentures; Waiver" below).
Any such permitted waiver will cure such default or event of default.
If the Subordinated Debt Securities of any series are held by a trust, and a
Declaration Event of Default (as defined under "Description of Preferred
Securities--Declaration Events of Default" below) has occurred and is
attributable to the failure of Bergen to pay principal, premium, if any, or
interest on, such Subordinated Debt Securities, then each holder of the
preferred securities of such trust may sue Bergen, or seek other remedies to
force payment to such holder of the principal of, premium, if any, or interest
on, such Subordinated Debt Securities having a principal amount equal to the
aggregate liquidation amount of the preferred securities held by such holder.
Subject to the terms of the applicable Indenture, if an event of default
under that Indenture shall occur and be continuing, the Trustee will be under no
obligation to exercise any of its rights or powers under that Indenture at the
request or direction of any of the holders of the applicable series of Debt
Securities, unless such holders have offered the Trustee reasonable security or
indemnity. The holders of a majority in aggregate principal amount of the
outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Indenture
Trustee, with respect to the Debt Securities of that series, provided that:
- the direction given to the Trustee is not in conflict with any law or the
applicable Indenture;
- the Trustee may take any other action deemed proper by it which is not
inconsistent with such direction; and
- the Trustee has not determined that the action would be unjustly
prejudicial to the holders not involved in the proceeding.
A holder of the Debt Securities of any series will have the right to institute a
proceeding under the applicable Indenture or to appoint a receiver or trustee,
or to seek other remedies only if:
- the holder has given written notice to the Trustee of a continuing event
of default with respect to that series;
- the holders of at least 25% in aggregate principal amount of the
outstanding Debt Securities of that series have made written request to,
and such holders have offered reasonable indemnity to, the Trustee to
institute such proceedings as trustee; and
- the Trustee does not institute such proceeding, and does not receive from
the holders of a majority in aggregate principal amount of the outstanding
Debt Securities of that series other conflicting directions, within 60
days after such notice, request and offer.
These limitations do not apply to a suit instituted by a holder of Debt
Securities if Bergen defaults in the payment of the principal, premium, if any,
or interest on, the Debt Securities.
Bergen will periodically file statements with the Trustee regarding its
compliance with the conditions and covenants in the Indentures.
MODIFICATION OF INDENTURES; WAIVER
Bergen and each Trustee may change the applicable Indenture without the
consent of any
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holders with respect to certain matters, including:
- evidencing the succession of another person to Bergen and the assumption
by it of Bergen's covenants in the applicable Indenture and the Debt
Securities of such series;
- adding to Bergen's covenants, agreements and obligations for the benefit
of the holders of the series of Debt Securities, or to surrender any right
or power of Bergen under the applicable Indenture;
- evidencing and providing for the acceptance of appointment under the
applicable Indenture of a successor Trustee with respect to the securities
of one or more series and to add to or change any provisions of such
Indenture as may be necessary to provide for or facilitate the
administration by more than one Trustee;
- curing any ambiguity or correcting any inconsistency in the applicable
Indenture if such action does not adversely affect the interests of the
holders of such Debt Securities;
- by means of a supplemental indenture, adding, changing or eliminating any
provisions of the applicable Indenture (which addition, change or
elimination may apply to one or more series of Debt Securities) if such
addition, change or elimination does not (a) apply to any security of any
series created prior to the execution of such supplemental indenture that
is entitled to the benefit of such provision and (b) modify existing
holders' rights under such provisions;
- securing the Debt Securities; or
- changing anything else that does not adversely affect the interests of any
holder of Debt Securities.
In addition, under each Indenture, Bergen and each Trustee may change the
rights of holders of a series of Debt Securities with the written consent of the
holders of at least a majority in aggregate principal amount of the outstanding
Debt Securities of each affected series. However, the following changes, among
other things, may be made only with the consent of each holder of any
outstanding Debt Securities affected:
- changing the stated maturity of such Debt Securities;
- reducing the principal amount of a discount security payable upon
declaration of acceleration;
- reducing the principal amount, reducing the rate of or extending the time
of payment of interest, or reducing any premium payable upon the
redemption of any such Debt Securities;
- changing the place or currency of payment of principal, premium, if any,
or interest, if any, on any such Debt Securities;
- impairing the right to institute suit for the enforcement of any payment
on or with respect to any such Debt Securities; and
- modifying any of the foregoing requirements or reducing the percentage of
Debt Securities, the holders of which are required to consent to any
amendment or waiver of any covenant or past default.
If the consent of the Property Trustee of a trust, as the sole holder of
Subordinated Debt Securities held by the trust, is required for any amendment,
modification or termination of the Subordinated Indenture, the Property Trustee
will request directions from the holders of the preferred securities of the
applicable trust.
FORM, EXCHANGE AND TRANSFER
Debt Securities of each series may be issued as registered securities, as
bearer securities (with or without coupons) or both. Unless otherwise specified
in the applicable prospectus supplement, registered securities will be issued in
denominations of $1,000 and any integral multiple thereof and bearer securities
will be issued in denominations of $5,000 and any integral multiple thereof.
Subject to the terms of the Indentures and the limitations applicable to
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global securities described in the applicable prospectus supplement, registered
securities will be exchangeable for other registered securities of the same
series, in any authorized denomination and of like tenor and aggregate principal
amount.
Subject to the terms of the relevant Indenture and the limitations
applicable to global securities set forth in the applicable prospectus
supplement, Debt Securities issued as registered securities may be presented for
exchange or for registration of transfer (duly endorsed or with the form of
transfer duly executed) at the office of the Security Registrar or at the office
of any transfer agent designated by Bergen for such purpose. Bearer securities
will not be issued in exchange for registered securities. Unless otherwise
provided in the Debt Securities to be transferred or exchanged, no service
charge will be made for any registration of transfer or exchange, but Bergen may
require payment of any taxes or other governmental charges. Bergen has appointed
each of the Senior Indenture Trustee and Subordinated Indenture Trustee and, if
any Senior Debt Securities or Subordinated Debt Securities are denominated as
LYONs, will appoint the trustee under the LYONs Indenture, as Security
Registrar. Any transfer agent (in addition to the applicable Security Registrar)
initially designated by Bergen for any Debt Securities will be named in the
applicable prospectus supplement. Bergen may at any time designate additional
transfer agents or rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts, except that Bergen
will be required to maintain a transfer agent in each place of payment for the
Debt Securities of each series.
If the Debt Securities of any series are to be redeemed, Bergen will not be
required to:
- issue, register the transfer of, or exchange those Debt Securities during
the 15 day period before the first date of publication of the relevant
notice of redemption as to those Debt Securities; except that in the case
of a series of registered securities selected for redemption where the
required notice is mailed rather than published, the 15 day period
predates the close of business on the day of such mailing;
- in the case of registered securities, register the transfer of or exchange
any Debt Securities so selected for redemption, in whole or in part,
except the unredeemed portion of any such registered security being
redeemed in part; or
- in the case of bearer securities, exchange any Debt Securities so selected
for redemption, except to exchange such bearer security for a registered
security that is immediately surrendered for redemption.
GLOBAL SECURITIES
The Debt Securities of each series may be issued in whole or in part in
global form. A Debt Security in global form will be deposited with, or on behalf
of, a depositary, which will be named in an applicable prospectus supplement. A
global security may be issued in either registered or bearer form and in either
temporary or definitive form. A global Debt Security may not be transferred,
except as a whole, among the depositary for such Debt Security and/or its
nominees and/or successors. If any Debt Securities of a series are issuable as
global securities, the applicable prospectus supplement will describe any
circumstances when beneficial owners of interests in any such global security
may exchange such interests for definitive Debt Securities of such series and of
like tenor and principal amount in any authorized form and denomination, the
manner of payment of principal of and interest, if any, on any such global Debt
Security and the specific terms of the depositary arrangement with respect to
any such global Debt Security.
DEFEASANCE
The Indentures provide Bergen with the option to discharge itself from (a)
all obligations of the Debt Securities of a series (except for certain
administrative obligations) or (b) compliance with certain covenants of the
Indentures. To exercise either option Bergen
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must irrevocably deposit in trust with the Trustee money or obligations of, or
guaranteed by, the United States of America sufficient to pay all of the
principal of, premium, if any, on and interest on the Debt Securities of such
series on the dates such payments are due in accordance with their terms. To
exercise either option, Bergen is required to deliver to the Trustee an opinion
of tax counsel that the deposit and related defeasance would not cause the
holders of the Debt Securities of such series to recognize gain or loss for
federal income tax purposes. To exercise the option described in clause (a)
above, the tax opinion must be based either on a ruling of the Internal Revenue
Service or a change in the applicable federal income tax law.
INFORMATION CONCERNING THE TRUSTEE
Each Trustee, other than during the occurrence and continuance of an event
of default under the applicable Indenture, is required to perform only such
duties as are specifically set forth in such Indenture. Upon an event of default
under the applicable Indenture, the Trustee must use the same degree of care as
a prudent person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, each Trustee is under no obligation to exercise any
of the powers given it by the applicable Indenture at the request of any holder
of Debt Securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur. The Trustee is
not required to spend or risk its own money or otherwise become financially
liable while performing its duties unless it reasonably believes that it will be
repaid or receive adequate indemnity.
Chase Manhattan Bank and Trust Company, the Trustee under the Senior
Indenture and the Subordinated Indenture, is also the trustee with respect to
$150 million in aggregate principal amount of Bergen's 7 3/8% Senior Notes due
2003 (the "7 3/8% Notes"), $100 million in aggregate principal amount of
Bergen'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 $8.4 million in aggregate principal
amount of Bergen's 6 7/8% Exchangeable Subordinated Debentures due 2011 (the
"6 7/8% Debentures"), and is the rights agent under Bergen's Shareowner Rights
Plan. An affiliate of the Trustee is the transfer agent, registrar and dividend
disbursing agent for Bergen's Class A Common Stock. Bergen also maintains
banking relationships in the ordinary course of business with an affiliate of
the Trustee. However, if Chase Manhattan Bank and Trust Company acquires any
conflicting interest when an event of default is pending, it must (with certain
exceptions) eliminate such conflict or resign.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of the interest on any Debt Securities (other than bearer securities) on any
interest payment date will be made to the person in whose name such Debt
Securities (or one or more predecessor securities) are registered at the close
of business on the regular record date for such interest.
Principal of and any premium and interest on the Debt Securities (other than
bearer securities) of a particular series will be payable at the office of the
paying agents designated by Bergen, except that, unless otherwise indicated in
the applicable prospectus supplement, interest payments may be made by wire
transfer or by check mailed to the holder. Unless otherwise indicated in such
prospectus supplement, the corporate trust office of the Trustee in The City of
New York will be designated as sole paying agent for payments with respect to
Debt Securities of each series. Bergen will be required to maintain a paying
agent in each place of payment for the Debt Securities of a particular series.
Unless otherwise indicated in an applicable prospectus supplement, interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months.
Unless otherwise indicated in an applicable prospectus supplement, payment
of principal of, premium, if any, and interest, if any, on bearer securities
will be made, subject to any applicable laws and regulations, at the offices of
a paying agent outside the United States as Bergen may designate, or by check
mailed to any address or by transfer to an account maintained by the
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payee outside the United States. Unless otherwise indicated in an applicable
prospectus supplement, any payment of an installment of interest on any bearer
security will be made only if the coupon relating to the interest installment is
surrendered.
All moneys paid by Bergen to a paying agent or the Trustee for the payment
of the principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to Bergen, and the holder of the security
thereafter may look only to Bergen for payment thereof.
GOVERNING LAW
The Indentures and Debt Securities will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF PREFERRED SECURITIES
GENERAL
Each Declaration authorizes the Regular Trustees to issue on behalf of each
trust one series of preferred securities which will have the terms described in
a prospectus supplement. The proceeds from the sale of a trust's preferred and
common securities will be used by such trust to purchase a series of
subordinated debt securities issued by Bergen. The subordinated debt securities
will be held in trust by the Property Trustee for the benefit of the holders of
such preferred and common securities.
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Under each Preferred Securities Guarantee, Bergen will agree to make
payments of distributions and payments on redemption or liquidation with respect
to a trust's preferred securities, but only to the extent such trust has funds
available to make those payments and has not made such payments. See
"Description of Preferred Securities Guarantees."
The assets of a trust available for distribution to the holders of its
preferred securities will be limited to payments from Bergen under the series of
subordinated debt securities held by such trust. If Bergen fails to make a
payment on such subordinated debt securities, such trust will not have
sufficient funds to make related payments, including distributions, on its
preferred securities.
Each Preferred Securities Guarantee, when taken together with Bergen's
obligations under the related series of subordinated debt securities, the
Subordinated Indenture and the related Declaration, will provide a full and
unconditional guarantee of amounts due on the preferred securities issued by a
trust.
Each Declaration will be qualified as an indenture under the Trust Indenture
Act. Each Property Trustee will act as indenture trustee for the preferred
securities to be issued by the applicable trust in order to comply with the
provisions of the Trust Indenture Act.
Each series of preferred securities will have the terms, including
distributions, redemption, voting, conversion, liquidation rights and such other
preferred, deferred or other special rights or such restrictions as described in
the relevant Declaration or made part of such Declaration by the Trust Indenture
Act or the Delaware Business Trust Act. Generally, the terms of such preferred
securities will mirror the terms of the subordinated debt securities held by the
trust.
The prospectus supplement relating to the preferred securities of a trust
will describe the specific terms of such preferred securities, including:
- the name of such preferred securities;
- the dollar amount and number of securities issued;
- any provision relating to deferral of distribution payments;
- the annual distribution rate(s) (or method of determining such rate(s)),
the payment date(s) and the record dates used to determine the holders who
are to receive distributions;
- the date from which distributions shall be cumulative;
- the optional redemption provisions, if any, including the prices, time
periods and other terms and conditions for which such preferred securities
shall be purchased or redeemed, in whole or in part;
- the terms and conditions, if any, upon which the applicable series of
subordinated debt securities may be distributed to holders of such
preferred securities;
- the voting rights, if any, of holders of such preferred securities;
- whether such preferred securities are to be convertible, indirectly, into
Bergen's Class A Common Stock and, if so, the conversion rate and the
extent to which such conversion rate will be subject to anti-dilution
provisions;
- any securities exchange on which such preferred securities will be listed;
- whether such preferred securities are to be issued in book-entry form and
represented by one or more global certificates and, if so, the depositary
for such global certificates and the specific terms of the depositary
arrangements; and
- any other relevant rights, preferences, privileges, limitations or
restrictions of such preferred securities.
Each prospectus supplement will describe certain United States federal
income tax considerations applicable to the purchase, holding and disposition of
the series of preferred securities covered by such prospectus supplement.
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LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Unless otherwise specified in an applicable prospectus supplement, each
Declaration states that the related trust shall be dissolved:
- upon the bankruptcy of Bergen;
- upon the filing of a certificate of dissolution or its equivalent with
respect to Bergen;
- upon the filing of a certificate of cancellation with respect to such
trust after obtaining the consent of at least a majority in liquidation
amount of the preferred and common securities of such trust, voting
together as a single class;
- 90 days after the revocation of the certificate of incorporation of Bergen
(but only if the certificate of incorporation is not reinstated during
that 90-day period);
- upon the election by Bergen, effective upon notice to the related trust,
the Property Trustee and the Delaware Trustee, to dissolve such trust in
accordance with the terms of the preferred and common securities and all
of the related subordinated debt securities held by the Property Trustee
shall have been distributed to the holders of the preferred and common
securities in exchange for all of such securities; or
- before the issuance of any common or preferred securities of such trust,
with the consent of all of the Regular Trustees and Bergen;
- upon the redemption of all of the common and preferred securities of such
trust;
- if the related subordinated debt securities are convertible into Bergen's
Class A Common Stock, upon the exchange of a specified percentage or
amount of the common and preferred securities of such trust for such
subordinated debt securities and the conversion of such subordinated debt
securities into shares of Bergen's Class A Common Stock; or
- upon entry of a court order for the dissolution of Bergen or such trust.
Unless otherwise specified in an applicable prospectus supplement, in the
event of a dissolution, after the trust pays all amounts owed to creditors, the
holders of the preferred and common securities will be entitled to receive:
- cash equal to the aggregate liquidation amount of each preferred and
common security specified in an accompanying prospectus supplement, plus
accumulated and unpaid distributions to the date of payment; unless
- subordinated debt securities in an aggregate principal amount equal to the
aggregate liquidation amount of the preferred and common securities are
distributed to the holders of the preferred and common securities.
If such trust cannot pay the full amount due on its preferred and common
securities because insufficient assets are available for payment, then the
amounts payable by the trust on its preferred and common securities shall be
paid pro rata. However, if an event of default under the related Declaration has
occurred, the total amounts due on such preferred securities will be paid before
any distribution on such common securities.
DECLARATION EVENTS OF DEFAULT
An event of default under the Subordinated Indenture relating to a series of
subordinated debt securities is an event of default under the Declaration of the
trust that owns such subordinated debt securities (a "Declaration Event of
Default"). See "Description of Debt Securities--Events of Default."
Bergen and the Regular Trustees of a trust must file annually with the
Property Trustee for such trust a certificate stating whether or not they are in
compliance with all the applicable conditions and covenants under the related
Declaration.
Upon the occurrence of a Declaration Event of Default, the Property Trustee
of the applicable trust, as the sole holder of the
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subordinated debt securities held by such trust, will have the right under the
Subordinated Indenture to declare the principal of, premium, if any, and
interest on such subordinated debt securities to be immediately due and payable.
If a Property Trustee fails to enforce its rights under the terms of the
applicable subordinated debt securities after a holder of preferred securities
has made a written request, such holder may, to the extent permitted by
applicable law, sue Bergen, or seek other remedies, to enforce the Property
Trustee's rights under such subordinated debt securities without first
instituting a legal proceeding against such Property Trustee or any other person
or entity.
If Bergen fails to pay principal, premium, if any, or interest on a series
of subordinated debt securities when payable, then a holder of the related
preferred securities issued by a trust which owns such notes may directly sue
Bergen or seek other remedies, to collect its pro rata share of payments owed.
REMOVAL AND REPLACEMENT OF TRUSTEES
Only the holder of a trust's common securities has the right to remove or
replace the trustees of such trust. The resignation or removal of any trustee
and the appointment of a successor trustee shall be effective only on the
acceptance of appointment by the successor trustee in accordance with the
provisions of the Declaration for such trust.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS OF THE TRUSTS
A trust may not consolidate, amalgamate, merge with or into, or be replaced
by or convey, transfer or lease its properties and assets substantially as an
entirety to any other corporation or other body ("Merger Event"), except as
described below. A trust may, with the consent of a majority of its Regular
Trustees and without the consent of the holders of its preferred and common
securities, consolidate, amalgamate, merge with or into, or be replaced by
another trust, if:
- the successor entity either
(1) assumes all of the obligations of the trust relating to its
preferred and common securities; or
(2) substitutes for such trust's preferred and common securities other
securities substantially similar to such preferred and common
securities ("successor securities"), so long as the successor
securities rank the same as such preferred and common securities for
distributions and payments upon liquidation, redemption and
otherwise;
- Bergen acknowledges a trustee of such successor entity who has the same
powers and duties as the Property Trustee of such trust as the holder of
the particular series of subordinated debt securities;
- the Merger Event does not cause its preferred securities or successor
securities to be downgraded by any national rating agency;
- the Merger Event does not adversely affect the rights, preferences and
privileges of the holders of its preferred and common securities or
successor securities in any material way (other than with respect to any
dilution of the holders' interest in the new entity);
- the successor entity has a purpose identical to that of the trust;
- prior to the Merger Event, Bergen has received an opinion of counsel from
a law firm stating that
(1) such Merger Event does not adversely affect the rights of the
holders of the trust's preferred securities or any successor
securities in any material way (other than with respect to any
dilution of the holders' interest in the new entity); and
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(2) following the Merger Event, neither the trust nor the successor
entity will be required to register as an investment company under
the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and
- Bergen guarantees the obligations of the successor entity under the
successor securities in the same manner as in the applicable Preferred
Securities Guarantee and the guarantee of the common securities for such
trust.
In addition, unless all of the holders of the preferred and common
securities approve otherwise, a trust shall not consolidate, amalgamate, merge
with or into, or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it, if such transaction
would cause the trust or the successor entity to be classified other than as a
grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF DECLARATIONS
The holders of preferred securities have no voting rights except as
discussed under "--Mergers, Consolidations or Amalgamations of the Trusts" and
"Description of Preferred Securities Guarantees--Amendments and Assignment," and
as otherwise required by law and the Declaration for the applicable trust.
Except as otherwise provided in the Declaration for a particular trust or by
any applicable terms of the securities, such Declaration may be amended by, and
only by, a written instrument approved and executed by the Regular Trustees (or,
if there are more than two Regular Trustees, a majority of the Regular
Trustees); provided, however, that:
- no amendment shall be made, and any such purported amendment shall be void
and ineffective, to the extent the result thereof would be to:
* cause such trust to fail to be classified for the purposes of United
States federal income taxation as a grantor trust;
* affect the powers or the rights of the Property Trustee or the
Delaware Trustee without the written consent of the Property Trustee
or the Delaware Trustee, as the case may be; or
* cause such trust to be deemed to be an "investment company" which is
required to be registered under the Investment Company Act;
- at such time after such trust has issued any securities which remain
outstanding, any amendment which would adversely affect the rights,
privileges or preferences of any holder of such securities may be effected
only with such additional requirements as may be set forth in the terms of
such securities;
- certain provisions in such Declaration regarding the transferability of
the common securities and regarding the amendment of such Declaration
cannot be amended without the consent of all of the holders of the
securities;
- certain provisions in such Declaration regarding Bergen cannot be amended
without Bergen's consent; and
- Bergen's rights to increase or decrease the number of, and appoint and
remove, Trustees shall not be amended without Bergen's consent.
Notwithstanding the foregoing, a Declaration may be amended from time to
time by the holders of a majority in liquidation amount of the common securities
and the Property Trustee, without the consent of the holders of the preferred
securities, to:
- cure any ambiguity;
- correct or supplement any provision in such Declaration that may be
defective or inconsistent with any other provision or to make any other
provisions with respect to matters or questions arising under such
Declaration, which shall not be inconsistent with the other provisions of
such Declaration;
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- add to the covenants, restrictions or obligations of Bergen;
- to ensure the applicable trust's classification as a grantor trust for
United States federal income tax purposes; and
- to modify, eliminate or add to any provisions of the Declaration to such
extent as shall be necessary to ensure that the applicable trust will not
be required to register as an "investment company" under the Investment
Company Act.
Subject to certain qualifications, the Declaration may be amended by the
holders of a majority in liquidation amount of the Common Securities and the
Property Trustee if:
- the holders of a majority in liquidation amount of the Preferred
Securities consent to such amendment; and
- the Regular Trustees have received an opinion of counsel experienced in
such matters to the effect that such amendment or the exercise of any
power granted to the Regular Trustees in accordance with such amendment
will not affect the applicable trust's status as a grantor trust for
United States federal income tax purposes or such trust's exemption from
status as an "investment company" under the Investment Company Act.
The holders of a majority in aggregate liquidation amount of the preferred
securities of each trust have the right to:
- direct the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee of the trust; or
- direct the exercise of any trust or power conferred upon such Property
Trustee under that trust's Declaration, including the right to direct the
Property Trustee, as the holder of a series of subordinated debt
securities, to
(1) exercise the remedies available under the Subordinated Indenture
with respect to such subordinated debt securities;
(2) waive any event of default under the Subordinated Indenture that is
waivable;
(3) cancel an acceleration of the principal of the subordinated debt
securities; or
(4) consent to any amendment, modification or termination of the
Subordinated Indenture or such subordinated debt securities where
such consent shall be required.
However, if the Subordinated Indenture requires the consent of the holders of
more than a majority in aggregate principal amount of a series of subordinated
debt securities (a "super-majority") with respect to any such waiver or consent,
then the Property Trustee for such series must get approval of the holders of
such super-majority in liquidation amount of such series of preferred
securities.
In addition, before taking any of the foregoing actions, the Property
Trustee must obtain an opinion of counsel stating that, as a result of such
action, the trust will continue to be classified as a grantor trust for United
States federal income tax purposes.
The Property Trustee of a trust will notify all preferred securities holders
of such trust of any notice received from the Subordinated Indenture Trustee
with respect to the subordinated debt securities held by such trust.
As described in each Declaration, the Property Trustee may hold a meeting to
have preferred securities holders vote on certain matters or have them approve
such matters by written consent.
If a vote of preferred securities holders is taken or a consent is obtained,
any preferred securities that are owned by Bergen or any of its affiliates will,
for purposes of the vote or consent, be treated as if they were not outstanding.
This means:
- Bergen and any of its affiliates will not be able to vote on or consent to
matters
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requiring the vote or consent of holders of preferred securities; and
- any preferred securities owned by Bergen or any of its affiliates will not
be counted in determining whether the required percentage of votes or
consents has been obtained.
INFORMATION CONCERNING THE PROPERTY TRUSTEES
For matters relating to compliance with the Trust Indenture Act, the
Property Trustee of each trust will have all of the duties and responsibilities
of an indenture trustee under the Trust Indenture Act. Each Property Trustee,
other than during the occurrence and continuance of a Declaration Event of
Default under the applicable trust, undertakes to perform only such duties as
are specifically set forth in the applicable Declaration and, upon a Declaration
Event of Default, must use the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to this
provision, a Property Trustee is under no obligation to exercise any of the
powers given it by the applicable Declaration at the request of any holder of
preferred securities unless it is offered reasonable security or indemnity
against the costs, expenses and liabilities that it might incur. However, the
holders of the preferred securities will not be required to offer such an
indemnity where the holders, by exercising their voting rights, direct the
Property Trustee to take any action following a Declaration Event of Default.
Chase Manhattan Bank and Trust Company is the Senior Indenture Trustee and
the Subordinated Indenture Trustee and will act as the Property Trustee and the
Preferred Securities Guarantee Trustee. In addition, an affiliate of Chase
Manhattan Bank and Trust Company will act as the Delaware Trustee of each of the
trusts. However, if Chase Manhattan Bank and Trust Company acquires any
conflicting interest when an event of default is pending, it must (with certain
exceptions) eliminate such conflict or resign. For information regarding other
relationships between Bergen and Chase Manhattan Bank and Trust Company, see
"Description of Debt Securities--Information Concerning the Trustee."
MISCELLANEOUS
The Regular Trustees of each trust are authorized and directed to conduct
the affairs of and to operate such trust in such a way that
- such trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act;
- such trust will be classified as a grantor trust for United States federal
income tax purposes; and
- the subordinated debt securities held by such trust will be treated as
indebtedness of Bergen for United States federal income tax purposes.
Bergen and the Regular Trustees of a trust are authorized to take any action
(so long as it is consistent with applicable law or the applicable certificate
of trust or Declaration) that Bergen and the Regular Trustees of such trust
determine to be necessary or desirable for such purposes.
Holders of preferred securities have no preemptive or similar rights.
A trust may not invest any proceeds received by the trust from holding the
subordinated debt securities (but shall distribute all such proceeds to the
holders of preferred securities), acquire any assets other than the subordinated
debt securities and any cash proceeds received with respect thereto, make any
loans or incur any indebtedness (other than loans represented by the
subordinated debt securities), act in any way to vary the assets of the trust or
the terms of the preferred securities or the common securities or issue any
securities other than the preferred securities and the common securities.
GOVERNING LAW
Each Declaration and the related preferred securities will be governed by
and construed in accordance with the laws of the State of Delaware.
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DESCRIPTION OF PREFERRED SECURITIES
GUARANTEES
GENERAL
Bergen will execute a Preferred Securities Guarantee, which benefits the
holders of preferred securities, at the time that a trust issues those preferred
securities. Each Preferred Securities Guarantee will be qualified as an
indenture under the Trust Indenture Act. Chase Manhattan Bank and Trust Company
will act as indenture trustee ("Preferred Securities Guarantee Trustee") under
each Preferred Securities Guarantee for the purposes of compliance with the
Trust Indenture Act. The Preferred Securities Guarantee Trustee will hold each
Preferred Securities Guarantee for the benefit of the preferred securities
holders of the applicable trust.
Bergen will irrevocably agree, as described in each Preferred Securities
Guarantee, to pay in full, to the holders of the preferred securities issued by
the applicable trust, the Preferred Securities Guarantee Payments (as defined
below) (except to the extent previously paid), when and as due, regardless of
any defense, right of set-off or counterclaim which such trust may have or
assert. The following payments, to the extent not paid by a trust ("Preferred
Securities Guarantee Payments"), will be covered by the applicable Preferred
Securities Guarantee:
- any accrued and unpaid distributions required to be paid on the applicable
preferred securities, to the extent that the trust has funds available to
make the payment;
- the redemption price, to the extent that the trust has funds available to
make the payment; and
- upon a voluntary or involuntary dissolution, winding-up or termination of
the trust (other than in connection with a distribution of subordinated
debt securities to holders of such preferred securities in exchange for
such preferred securities), the lesser of:
(1) the aggregate of the liquidation amount specified in the prospectus
supplement for each preferred security plus all accrued and unpaid
distributions on the preferred security to the date of payment, to
the extent the trust has funds available to make the payment; and
(2) the amount of assets of the trust remaining available for
distribution to holders of its preferred securities upon a
liquidation of the trust ("Liquidation Payment").
Bergen's obligation to make a Preferred Securities Guarantee Payment may be
satisfied by directly paying the required amounts to the holders of the
preferred securities or by causing the trust to pay the amounts to the holders.
No single document executed by Bergen relating to the issuance of preferred
securities will provide for its full, irrevocable and unconditional guarantee of
the preferred securities. It is only the combined operation of Bergen's
obligations under the applicable Preferred Securities Guarantee, Declaration,
Subordinated Indenture and the subordinated debt securities that has the effect
of providing a full, irrevocable and unconditional guarantee of a trust's
obligations under its preferred securities.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
Each Preferred Securities Guarantee will constitute an unsecured obligation
of Bergen and will rank:
- subordinate and junior in right of payment to all of Bergen's other
liabilities (except for those liabilities made equal or junior by their
terms to any liabilities of Bergen under such Preferred Securities
Guarantee);
- equal with the most senior preferred or preference stock now or hereafter
issued by Bergen, and with any guarantee now or hereafter issued by it in
respect of any preferred or preference stock of any of its affiliates; and
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- senior to Bergen's Class A Common Stock.
Each Declaration will require that the holder of preferred securities accept
the subordination provisions and other terms of the Preferred Securities
Guarantee. Each Preferred Securities Guarantee will constitute a guarantee of
payment and not of collection (in other words, the holder of the guaranteed
security may sue Bergen, or seek other remedies, to enforce its rights under the
Preferred Securities Guarantee without first suing any other person or entity).
A Preferred Securities Guarantee will not be discharged except by payment of the
Preferred Securities Guarantee Payments in full to the extent not previously
paid or upon distribution to the applicable preferred securities holders of the
corresponding series of subordinated debt securities pursuant to the appropriate
Declaration.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of a series of preferred securities (in which case no consent of such
holders will be required), a Preferred Securities Guarantee may be amended only
with the prior approval of the holders of at least a majority in aggregate
liquidation amount of such preferred securities (excluding any such preferred
securities held by Bergen or any of its affiliates). A description of the way to
obtain any approval is described under "Description of Preferred
Securities--Voting Rights; Amendment of Declarations." All guarantees and
agreements contained in a Preferred Securities Guarantee will be binding on
Bergen's successors, assigns, receivers, trustees and representatives and are
for the benefit of the holders of the applicable preferred securities.
PREFERRED SECURITIES GUARANTEE EVENTS OF DEFAULT
An event of default under a Preferred Securities Guarantee occurs if Bergen
fails to make any of its required payments or perform its obligations under such
Preferred Securities Guarantee.
The holders of at least a majority in aggregate liquidation amount of the
preferred securities relating to each Preferred Securities Guarantee (excluding
any preferred securities held by Bergen or any of its affiliates) will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Preferred Securities Guarantee Trustee relating to such
Preferred Securities Guarantee or to direct the exercise of any trust or power
given to the Preferred Securities Guarantee Trustee under such Preferred
Securities Guarantee or to waive any past event of default and its consequences.
INFORMATION CONCERNING THE PREFERRED SECURITIES GUARANTEE TRUSTEE
The Preferred Securities Guarantee Trustee under a Preferred Securities
Guarantee, other than during the occurrence and continuance of a default under
such Preferred Securities Guarantee, will perform only the duties that are
specifically described in such Preferred Securities Guarantee. After such a
default, the Preferred Securities Guarantee Trustee will exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, a Preferred
Securities Guarantee Trustee is under no obligation to exercise any of its
powers as described in the applicable Preferred Securities Guarantee at the
request of any holder of covered preferred securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that it might
incur.
Chase Manhattan Bank and Trust Company is the Senior Indenture Trustee and
the Subordinated Indenture Trustee and will act as the Preferred Securities
Guarantee Trustee and the Property Trustee. In addition, an affiliate of Chase
Manhattan Bank and Trust Company will act as the Delaware Trustee of each of the
trusts. However, if Chase Manhattan Bank and Trust Company acquires any
conflicting interest when an event of default is pending, it must (with certain
exceptions) eliminate such conflict or resign. For information regarding other
relationships between Bergen and Chase Manhattan Bank and Trust Company, see
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"Description of Debt Securities--Information Concerning the Trustee."
TERMINATION OF THE PREFERRED SECURITIES GUARANTEES
Each Preferred Securities Guarantee will terminate once the applicable
preferred securities are paid in full or upon distribution of the corresponding
series of subordinated debt securities to the holders of such preferred
securities or, if such subordinated debt securities are convertible into
Bergen's Class A Common Stock, upon the exchange of all such preferred
securities for the corresponding series of subordinated debt securities and the
conversion of all such subordinated debt securities into Bergen's Class A Common
Stock. Each Preferred Securities Guarantee will continue to be effective or will
be reinstated if at any time any holder of preferred securities issued by the
applicable trust must restore payment of any sums paid under such preferred
securities or such Preferred Securities Guarantee.
GOVERNING LAW
Unless otherwise specified in a prospectus supplement, the Preferred
Securities Guarantees will be governed by and construed in accordance with the
laws of the State of Delaware.
RELATIONSHIP AMONG PREFERRED
SECURITIES, PREFERRED SECURITIES
GUARANTEES AND SUBORDINATED DEBT
SECURITIES HELD BY EACH TRUST
Payments of distributions and redemption and liquidation payments due on
each series of preferred securities (to the extent the applicable trust has
funds available for the payments) will be guaranteed by Bergen to the extent
described under "Description of Preferred Securities Guarantees." No single
document executed by Bergen in connection with the issuance of any series of
preferred securities will provide for its full, irrevocable and unconditional
guarantee of such preferred securities. It is only the combined operation of
Bergen's obligations under the applicable Preferred Securities Guarantee,
Declaration, Subordinated Indenture and subordinated debt securities that has
the effect of providing a full, irrevocable and unconditional guarantee of a
trust's obligations under its preferred securities.
As long as Bergen makes payments of interest and other payments when due on
the subordinated debt securities held by a trust, such payments will be
sufficient to cover the payment of distributions and redemption and liquidation
payments due on the preferred securities issued by that trust, primarily
because:
- the aggregate principal amount of the subordinated debt securities will be
equal to the sum of the aggregate liquidation amount of the preferred and
common securities;
- the interest rate and interest and other payment dates on the subordinated
debt securities will match the distribution rate and distribution and
other payment dates for the preferred securities;
- Bergen will pay for any and all costs, expenses and liabilities of each
trust except such trust's obligations under its preferred securities (and
Bergen has agreed to guarantee such payments); and
- each Declaration provides that the related trust will not engage in any
activity that is not consistent with the limited purposes of the trust.
If and to the extent that Bergen does not make payments on such subordinated
debt securities, such trust will not have funds available to make payments of
distributions or other amounts due on its preferred securities. In those
circumstances, you will not be able to rely upon the Preferred Securities
Guarantee for payment of these amounts. Instead, you may directly sue Bergen or
seek other remedies to collect your pro rata share of payments owed. If you sue
Bergen to collect payment, then Bergen will assume your rights as a holder of
preferred securities under such trust's Declaration to the extent Bergen makes a
payment to you in any such legal action.
A holder of any preferred security may sue Bergen, or seek other remedies,
to enforce its rights under the applicable Preferred Securities
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Guarantee without first suing the applicable Preferred Guarantee Trustee, the
trust which issued the preferred security or any other person or entity.
DESCRIPTION OF CLASS A COMMON
STOCK
Bergen is authorized to issue 300,000,000 shares of Class A Common Stock. As
of April 30, 1999, there were 134,211,354 shares of Class A Common Stock
outstanding. Additional shares of Class A Common Stock have been reserved for
outstanding stock options, for subsequent grants under Bergen's benefit plans
and for acquisitions by Bergen and its subsidiaries.
Below is a general description of the Class A Common Stock to which a
prospectus supplement may relate, including a prospectus supplement providing
that Class A Common Stock will be issuable by Bergen upon conversion of
Preferred Securities.
- Holders of Class A Common Stock are entitled to receive such dividends as
are declared by Bergen's Board of Directors, subject to the preference of
any outstanding Preferred Stock of Bergen.
- Payment and declaration of dividends on the Class A Common Stock will be
subject to restrictions if Bergen fails to pay dividends on any series of
Bergen's Preferred Stock ranking prior to the Class A Common Stock as to
the payment of dividends.
- Holders of Class A Common Stock are entitled to cast one vote per share on
all matters voted upon by shareowners. There is no cumulative voting for
the election of directors.
- Holders of the Class A Common Stock do not have any pre-emptive rights.
- Upon liquidation of Bergen, holders of Class A Common Stock are entitled
to share on a pro rata basis any assets remaining for distribution to
them.
- The registrar, transfer agent and dividend disbursing agent for the Class
A Common Stock is ChaseMellon Shareholder Services.
The prospectus supplement utilized in connection with an offering of
Preferred Securities will specify whether or not the Preferred Securities being
offered will be convertible into Bergen's Class A Common Stock. If a series of
Preferred Securities is convertible, the prospectus supplement will indicate:
- the conversion ratio, which reflects the number of shares of Class A
Common Stock that a holder of Preferred Securities would receive if the
holder converted the holder's Preferred Securities into Class A Common
Stock;
- the events, such as a stock dividend or a stock split, that will result in
an adjustment to the conversion ratio;
- whether, and to what extent, the Preferred Securities will be mandatorily
convertible into Class A Common Stock; and
- any restrictions that may exist on the right of a holder of Preferred
Securities to convert Preferred Securities into Class A Common Stock.
OTHER MATTERS APPLICABLE TO THE
SECURITIES
On February 9, 1994, the Board of Directors of Bergen 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) of 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
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exercisable, will entitle the owner to buy 1/100th of a share of Bergen'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 Acquiror (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, Bergen were to be acquired by merger,
shareowners with unexercised Rights could purchase common stock of the acquiror
having a value equal to twice the exercise price of the Rights. The Board may
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
Bergen'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 Bergen.
PLAN OF DISTRIBUTION
Bergen may sell the senior debt securities or subordinated debt securities
and a trust may sell its preferred securities being offered hereby in one or
more of the following ways from time to time:
- to underwriters for resale to the public or to institutional investors;
- directly to institutional investors;
- directly to agents;
- through agents to the public or to institutional investors; or
- if indicated in the prospectus supplement, pursuant to delayed delivery
contracts, by remarketing firms or by other means.
The prospectus supplements will set forth the terms of the offering of each
series of securities, including the name or names of any underwriters or agents,
the purchase price of such securities and the proceeds to Bergen or the
applicable trust, as the case may be, from such sale, any underwriting discounts
or agency fees and other items constituting underwriters' or agents'
compensation, any discounts or concessions allowed or reallowed or paid to
dealers and any securities exchanges on which such securities may be listed.
If underwriters are utilized in the sale, the securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or prices, which may be changed, or at market or varying prices
determined at the time of sale.
Unless otherwise set forth in a prospectus supplement, the obligations of
the underwriters to purchase any series of securities will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all of
such series of securities, if any are purchased.
If a dealer is utilized in the sale of securities, Bergen will sell such
securities to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer at the
time of resale.
Securities may also be offered and sold, if so indicated in the prospectus
supplement, in connection with a remarketing agreement upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("remarketing firms") acting as principals for their own
accounts or as agents for Bergen. Any remarketing firm will be identified and
the terms of its agreement, if any, with Bergen and its compensation will be
described in the prospectus supplement.
Underwriters, agents, dealers and remarketing firms may be entitled under
agreements entered into with Bergen and/or a trust to indemnification by Bergen
and/or such trust against certain civil liabilities, including liabilities under
the Securities Act of 1933, or to contribution with respect to payments which
the underwriters or agents may be required to make
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in respect thereof. Underwriters, agents, dealers and remarketing firms may be
customers of, engage in transactions with, or perform services for Bergen and
its affiliates in the ordinary course of business.
Each series of securities will be a new issue of securities and will have no
established trading market. Any underwriters to whom securities are sold by
Bergen or by the trusts for public offering and sale may make a market in the
securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. The securities may or
may not be listed on a national securities exchange or a foreign securities
exchange.
LEGAL OPINIONS
The validity of the senior debt securities, the subordinated debt
securities, the Preferred Securities Guarantees and certain related matters will
be passed on for Bergen by Lowenstein Sandler PC, Roseland, New Jersey.
Lownestein Sandler may rely upon local counsel, including local counsel who may
have performed services on behalf of the underwriters, with respect to certain
matters.
EXPERTS
The consolidated financial statements of Bergen and its subsidiaries for the
fiscal years ended September 30, 1996, 1997 and 1998, included in Bergen's
Annual Report on Form 10-K for the fiscal year ended September 30, 1998, which
are incorporated by reference in this prospectus, have been audited by Deloitte
& Touche LLP, independent auditors, as stated in their report with respect
thereto, and have been incorporated by reference herein in reliance upon the
report of such firm, given upon their authority as experts in accounting and
auditing.
The consolidated financial statements of PharMerica and its subsidiaries for
the fiscal years ended December 31, 1997 and 1998, appearing in Bergen's Current
Report (Form 8-K) dated April 30, 1999, which are incorporated by reference in
this prospectus, have been audited by Arthur Andersen LLP, independent auditors,
as stated in their report with respect thereto, and have been incorporated by
reference herein in reliance upon the report of such firm, given upon their
authority as experts in accounting and auditing.
The consolidated financial statements of PharMerica and its subsidiaries at
December 31, 1996 and for the year then ended, appearing in Bergen's Current
Report (Form 8-K) dated April 30, 1999, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report, given on the
authority of such firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses to be borne by Bergen in
connection with the offerings described in this Registration Statement.
<TABLE>
<S> <C>
SEC filing fee.................................................... $ 83,400
Printing fees and expenses........................................ 75,000
Accounting fees and expenses...................................... 30,000
Rating agency fees................................................ 335,000
Legal fees and expenses........................................... 125,000
Trustee fees and expenses......................................... 30,000
Blue sky fees and expenses........................................ 10,000
Miscellaneous..................................................... 100,000
---------
Total............................................................. $ 788,400
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Bergen's Restated Certificate of Incorporation, every person who is or
was a director, officer, employee or agent of Bergen (including any such person
in his or her capacity as a Regular Trustee) and the legal representative of
such a person is entitled to receive indemnification from Bergen to the fullest
extent permitted by law. Under New Jersey law, directors and officers may be
indemnified in certain situations, subject to Bergen's having taken certain
actions and the directors and officers having met certain specified standards of
conduct. In addition, in April, 1986, Bergen 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 the broadest coverage for liabilities arising
under ERISA and the securities and anti-trust laws. The obligation of Bergen 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 Bergen 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. Bergen currently maintains an insurance policy which
provides liability coverage with respect to its directors and officers.
In addition, Bergen's Restated Certificate of Incorporation eliminates the
personal liability of directors and officers to Bergen 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 Bergen with the same degree of care as would
be applied by an "ordinarily prudent person under similar circumstances". The
provisions of Bergen's Restated Certificate of Incorporation which 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 Bergen 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.
The Declaration of Trust of each trust provides that no Trustee, affiliate
of any Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives or agents of any
II-1
<PAGE>
Trustee, or any employee or agent of such trust or its affiliates (each an
Indemnified Person) shall be liable, responsible or accountable in damages or
otherwise to such trust or any employee or agent of the trust or its affiliates
or to any holder for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of such trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by such
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions (subject
to certain qualifications with respect to the Property Trustee).
The Declaration of Trust of each trust also requires Bergen, to the fullest
extent permitted by applicable law, to indemnify and hold harmless each
Indemnified Person from and against any loss, damage or claim incurred by such
Indemnified Person by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of such trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such person by such Declaration, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross negligence or willful
misconduct with respect to such act or omissions (subject to certain
qualifications with respect to the Property Trustee). The Declaration of each
trust further provides that reasonable expenses (including legal fees) incurred
by an Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by Bergen prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
Bergen of an undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not entitled to
be indemnified for the underlying cause of action as authorized by such
Declaration.
The directors and officers of Bergen and the Regular Trustees of each trust
are covered by insurance policies indemnifying against certain liabilities,
including certain liabilities arising under the Securities Act which might be
incurred by them in such capacities.
II-2
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement (Preferred and Debt Securities)**
3.1 Certificate of Trust of Bergen Capital Trust I*
3.2 Certificate of Trust of Bergen Capital Trust II*
3.3 Certificate of Trust of Bergen Capital Trust III*
4.1 Declaration of Trust of Bergen Capital Trust I*
4.2 Declaration of Trust of Bergen Capital Trust II*
4.3 Declaration of Trust of Bergen Capital Trust III*
4.4 Form of Amended and Restated Declaration of Trust*
4.5 Form of Indenture (Senior Debt Securities), dated as of May 14, 1999, between Bergen
and Chase Manhattan Bank and Trust Company, National Association, as Trustee
4.6 Form of Indenture (Subordinated Debt Securities), dated as of May 14, 1999, between
Bergen and Chase Manhattan Bank and Trust Company, National Association, as Trustee
4.7 Form of Preferred Security (included in Exhibit 4.4)
4.8 Form of Preferred Securities Guarantee*
4.9 Form of Common Securities Guarantee*
4.10 The Restated Certificate of Incorporation of the Registrant, as amended
4.11 The By-Laws, as amended and restated, dated November 13, 1998 are incorporated by
reference to Exhibit 4.2 to the Registrant's Post Effective Amendment No. 2 to Form
S-3 dated December 17, 1998 (file no.333-63441)
4.12 Rights Agreement, dated as of February 8, 1994, between the Registrant and Chase
Manhattan Bank and Trust Company, National Association, 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
5.1 Opinion of Lowenstein Sandler PC**
12.1 Statement regarding the computation of ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends
23.1 Consent of Lowenstein Sandler PC (to be included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of Ernst & Young LLP
24.1 Powers of Attorney*
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee
under the Indenture (Senior Debt Securities)
</TABLE>
II-3
<PAGE>
<TABLE>
<C> <S>
25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee
under the Indenture (Subordinated Debt Securities)
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Property
Trustee--Bergen Capital Trust I
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Property
Trustee--Bergen Capital Trust II
25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Property
Trustee--Bergen Capital Trust III
25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee
under the Preferred Securities Guarantee--Bergen Capital Trust I
25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee
under the Preferred Securities Guarantee--Bergen Capital Trust II
25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee
under the Preferred Securities Guarantee--Bergen Capital Trust III
</TABLE>
- ------------------------
* Previously filed.
** To be filed by amendment or as an exhibit to a document to be incorporated
or deemed to be incorporated by reference in the Registration Statement.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2)That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3)To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by 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.
(d) Bergen Capital Trust I, Bergen Capital Trust II and Bergen Capital Trust
III each hereby undertakes to provide to the underwriter at the closing
specified in the underwriting agreements, certificates in such denominations and
registered in such names as required by the underwriter to permit prompt
delivery to each purchaser.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Bergen Brunswig
Corporation 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 its Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Orange, State of
California, on May 13, 1999.
BERGEN BRUNSWIG CORPORATION
By: /s/ DONALD R. RODEN
-----------------------------------------
Donald R. Roden
PRESIDENT AND CHIEF EXECUTIVE OFFICER
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 and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------- --------------------------- -------------------
<C> <S> <C>
/s/ ROBERT E. MARTINI* Chairman of the Board and
- ---------------------------- Director May 13, 1999
Robert E. Martini
/s/ DONALD R. RODEN President, Chief Executive
- ---------------------------- Officer and Director May 13, 1999
Donald R. Roden
Executive Vice President,
Chief Financial Officer
/s/ NEIL F. DIMICK and Director (Principal
- ---------------------------- Financial Officer and May 13, 1999
Neil F. Dimick Principal Accounting
Officer)
Director
- ---------------------------- May 13, 1999
Jose E. Blanco, Sr.
/s/ RODNEY H. BRADY* Director
- ---------------------------- May 13, 1999
Rodney H. Brady
Director
- ---------------------------- May 13, 1999
Charles C. Edwards, M.D.
/s/ CHARLES J. LEE* Director
- ---------------------------- May 13, 1999
Charles J. Lee
Director
- ---------------------------- May 13, 1999
George R. Liddle
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------- --------------------------- -------------------
<C> <S> <C>
Director
- ---------------------------- May 13, 1999
James R. Mellor
/s/ GEORGE E. REINHARDT, Director
JR.*
- ---------------------------- May 13, 1999
George E. Reinhardt, Jr.
Director
- ---------------------------- May 13, 1999
Francis G. Rodgers
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ MILAN A. SAWDEI
-------------------------
Milan A. Sawdei
ATTORNEY-IN-FACT
</TABLE>
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bergen Capital
Trust I certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Amendment No. 1
to its Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Orange, State of California, on May
13, 1999.
<TABLE>
<S> <C> <C>
BERGEN CAPITAL TRUST I
By: /s/ DONALD R. RODEN
-----------------------------------------
Donald R. Roden, Regular Trustee
By: /s/ NEIL F. DIMICK
-----------------------------------------
Neil F. Dimick, Regular Trustee
By: /s/ MILAN A. SAWDEI
-----------------------------------------
Milan A. Sawdei, Regular Trustee
</TABLE>
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bergen Capital
Trust II certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Amendment No. 1
to its Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Orange, State of California, on May
13, 1999.
<TABLE>
<S> <C> <C>
BERGEN CAPITAL TRUST II
By: /s/ DONALD R. RODEN
-----------------------------------------
Donald R. Roden, Regular Trustee
By: /s/ NEIL F. DIMICK
-----------------------------------------
Neil F. Dimick, Regular Trustee
By: /s/ MILAN A. SAWDEI
-----------------------------------------
Milan A. Sawdei, Regular Trustee
</TABLE>
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bergen Capital
Trust III certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Amendment No. 1
to its Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Orange, State of California, on May
13, 1999.
<TABLE>
<S> <C> <C>
BERGEN CAPITAL TRUST III
By: /s/ DONALD R. RODEN
-----------------------------------------
Donald R. Roden, Regular Trustee
By: /s/ NEIL F. DIMICK
-----------------------------------------
Neil F. Dimick, Regular Trustee
By: /s/ MILAN A. SAWDEI
-----------------------------------------
Milan A. Sawdei, Regular Trustee
</TABLE>
II-10
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement (Preferred and Debt Securities)**
3.1 Certificate of Trust of Bergen Capital Trust I*
3.2 Certificate of Trust of Bergen Capital Trust II*
3.3 Certificate of Trust of Bergen Capital Trust III*
4.1 Declaration of Trust of Bergen Capital Trust I*
4.2 Declaration of Trust of Bergen Capital Trust II*
4.3 Declaration of Trust of Bergen Capital Trust III*
4.4 Form of Amended and Restated Declaration of Trust*
4.5 Form of Indenture (Senior Debt Securities), dated as of May 14, 1999, between Bergen
and Chase Manhattan Bank and Trust Company, National Association, as Trustee
4.6 Form of Indenture (Subordinated Debt Securities), dated as of May 14, 1999, between
Bergen and Chase Manhattan Bank and Trust Company, National Association, as Trustee
4.7 Form of Preferred Security (included in Exhibit 4.4)
4.8 Form of Preferred Securities Guarantee*
4.9 Form of Common Securities Guarantee*
4.10 The Restated Certificate of Incorporation of the Registrant, as amended
4.11 The By-Laws, as amended and restated, dated November 13, 1998 are incorporated by
reference to Exhibit 4.2 to the Registrant's Post Effective Amendment No. 2 to Form
S-3 dated December 17, 1998 (file no.333-63441)
4.12 Rights Agreement, dated as of February 8, 1994, between the Registrant and Chase
Manhattan Bank and Trust Company, National Association, 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
4.13 Form of Officers' Certificate**
5.1 Opinion of Lowenstein Sandler PC**
12.1 Statement regarding the computation of ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends
23.1 Consent of Lowenstein Sandler PC (to be included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of Ernst & Young LLP
24.1 Powers of Attorney*
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee
under the Indenture (Senior Debt Securities)
25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee
under the Indenture (Subordinated Debt Securities)
</TABLE>
<PAGE>
<TABLE>
<C> <S>
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Property
Trustee--Bergen Capital Trust I
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Property
Trustee--Bergen Capital Trust II
25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Property
Trustee--Bergen Capital Trust III
25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee
under the Preferred Securities Guarantee--Bergen Capital Trust I
25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee
under the Preferred Securities Guarantee--Bergen Capital Trust II
25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Manhattan Bank and Trust Company, National Association, as Trustee
under the Preferred Securities Guarantee--Bergen Capital Trust III
</TABLE>
- ------------------------
* Previously filed.
** To be filed by amendment or as an exhibit to a document to be incorporated
or deemed to be incorporated by reference in the Registration Statement.
<PAGE>
EXHIBIT 4.5
BERGEN BRUNSWIG CORPORATION
TO
CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
----------------------
Indenture
Dated as of May 14, 1999
----------------------
Senior Debt Securities
<PAGE>
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
- ------- -------
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
- ----------
(1) This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture. N.A. means Not Applicable.
-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; 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 S.A. ................................................ 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
- ----------
(1) This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-ii-
<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...................................................... 8
Person............................................................ 8
Place of Payment.................................................. 8
Predecessor Security.............................................. 8
Redemption Date................................................... 8
Redemption Price.................................................. 8
Reference Date.................................................... 8
Registered Security............................................... 8
Regular Record Date............................................... 8
Remarketing Entity................................................ 8
Repayment Date.................................................... 8
Repayment Price................................................... 9
Responsible Officer............................................... 9
Securities........................................................ 9
Security Register; Security Registrar............................. 9
Special Record Date............................................... 9
Specified Amount.................................................. 9
Stated Maturity................................................... 9
Subsidiary........................................................ 9
Trading Day....................................................... 9
Trigger Event..................................................... 9
Trustee........................................................... 9
Trust Indenture Act; TIA.......................................... 10
United States..................................................... 10
United States Alien............................................... 10
U.S. Government Obligations....................................... 10
Valuation Date.................................................... 10
Vice President.................................................... 10
SECTION 1.02. Compliance Certificates and Opinions..................... 10
SECTION 1.03. Form of Documents Delivered to Trustee................... 11
-iii-
<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........................ 15
SECTION 1.08. Effect of Headings and Table of Contents................. 15
SECTION 1.09. Successors and Assigns................................... 15
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............................................. 16
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.......................................... 16
SECTION 2.02. Form of Trustee's Certificate of Authentication.......... 17
SECTION 2.03. Securities Issuable in Global Form....................... 17
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series...................... 18
SECTION 3.02. Denominations............................................. 22
SECTION 3.03. Execution, Authentication, Delivery and Dating............ 22
SECTION 3.04. Temporary Securities...................................... 24
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
-iv-
<PAGE>
PAGE
----
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture................... 42
SECTION 4.02. Application of Trust Money................................ 43
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default......................................... 44
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment........ 46
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee.............................................. 47
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.............................. 51
SECTION 5.12. Control by Holders........................................ 51
SECTION 5.13. Waiver of Past Defaults................................... 51
SECTION 5.14. Undertaking for Costs..................................... 52
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........................................ 54
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................... 57
SECTION 6.09. Corporate Trustee Required; Eligibility................... 57
SECTION 6.10. Resignation and Removal, Appointment of Successor......... 58
SECTION 6.11. Acceptance of Appointment by Successor.................... 60
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business................................................ 61
SECTION 6.13. Preferential Collection of Claims Against Company......... 61
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SECTION 6.14. Appointment of Authenticating Agent....................... 61
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders.............................................. 63
SECTION 7.02. Preservation of Information; Communications to Holders.... 63
SECTION 7.03. Reports by Trustee........................................ 64
SECTION 7.04. Reports by Company........................................ 64
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.............................. 65
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders........ 66
SECTION 9.02. Supplemental Indentures with Consent of Holders........... 67
SECTION 9.03. Execution of Supplemental Indentures...................... 68
SECTION 9.04. Effect of Supplemental Indentures......................... 69
SECTION 9.05. Conformity with Trust Indenture Act....................... 69
SECTION 9.06. Reference in Securities to Supplemental Indentures........ 69
SECTION 9.07 Notice of Supplemental Indenture.......................... 69
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest............... 69
SECTION 10.02. Maintenance of Office or Agency.......................... 70
SECTION 10.03. Money for Securities Payments to Be Held in Trust........ 71
SECTION 10.04. Purchase of Securities by Company or Subsidiary.......... 72
SECTION 10.05. Payment of Additional Amounts............................ 72
SECTION 10.06. Statement by Officers as to Default...................... 73
SECTION 10.07. Existence................................................ 73
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article................................. 74
SECTION 11.02. Election to Redeem; Notice to Trustee.................... 74
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed........ 74
SECTION 11.04. Notice of Redemption..................................... 75
SECTION 11.05. Deposit of Redemption Price.............................. 76
SECTION 11.06. Securities Payable on Redemption Date.................... 76
SECTION 11.07. Securities Redeemed in Part.............................. 77
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article................................. 77
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................................. 79
SECTION 13.02. Repayment of Securities.................................. 79
SECTION 13.03. Exercise of Option; Notice............................... 79
SECTION 13.04. Election of Repayment by Remarketing Entities............ 80
SECTION 13.05. Securities Payable on the Repayment Date................. 80
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.01. Purposes for which Meetings May Be Called................ 81
SECTION 14.02. Call, Notice and Place of Meetings....................... 81
SECTION 14.03. Persons Entitled to Vote at Meetings..................... 81
SECTION 14.04. Quorum; Action........................................... 82
SECTION 14.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings............................................ 82
SECTION 14.06. Counting Votes and Recording Action of Meetings.......... 83
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Company's Option to Effect Defeasance or Covenant
Defeasance............................................ 84
SECTION 15.02. Defeasance and Discharge................................. 84
SECTION 15.03. Covenant Defeasance...................................... 85
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance.......... 85
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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
CONVERSION OF SECURITIES
SECTION 16.01. Conversion Privilege and Conversion Price................ 88
SECTION 16.02. Exercise of Conversion Privilege......................... 89
SECTION 16.03. Fractions of Shares...................................... 90
SECTION 16.04. Adjustment of Conversion Price........................... 90
SECTION 16.05. Notice of Adjustments of Conversion Price................ 94
SECTION 16.06. Notice of Certain Corporate Action....................... 94
SECTION 16.07. Company to Reserve Common Stock.......................... 95
SECTION 16.08. Taxes on Conversions..................................... 95
SECTION 16.09. Covenant as to Common Stock.............................. 95
SECTION 16.10. Cancellation of Converted Securities, etc................ 95
SECTION 16.11. Provision in the Case of Consolidation, Merger or
Sales of Assets........................................ 95
SECTION 16.12. Trustee's Adjustment Disclaimer.......................... 96
TESTIMONIUM ......................................................... 97
SIGNATURES AND SEALS.................................................... 97
ACKNOWLEDGMENTS......................................................... 98
FORMS OF CERTIFICATION..................................................A-1-1
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THIS INDENTURE, dated as of May 14, 1999 is between BERGEN BRUNSWIG
CORPORATION, a New Jersey corporation having offices at 4000 Metropolitan Drive,
Orange, California 92868-3510 (herein called the "Company"), and CHASE MANHATTAN
BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, 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;
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"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.
"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, 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
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 101 California
Street, Suite 2725, 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, 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
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Treasurer of the Company or the Exchange Rate Agent appointed pursuant to
Section 3.01, and delivered to the Trustee.
"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)
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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 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
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
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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.
"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.
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"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.
"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
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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
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
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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.
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.
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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 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
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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
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.
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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
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
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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.
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.
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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.
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
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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.
____________________________________
, 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
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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.
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
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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;
(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
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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 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;
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(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
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.
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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
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
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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
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.
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(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,
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.
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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
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
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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
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
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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
at an office or agency
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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,
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(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
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.
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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
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
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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.
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.
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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:
(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
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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.
(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
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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.
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
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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
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
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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
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
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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.
(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
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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.
(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
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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
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
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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.
(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
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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 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
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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
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
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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
(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
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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
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
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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 period) of, such
indebtedness or guarantee in an aggregate amount exceeding $25,000,000, 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
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
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(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
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,
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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.
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
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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.
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
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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
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;
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(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
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
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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
(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.
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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.
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
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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;
(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.
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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;
(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
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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.
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.
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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,
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
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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.
(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,
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in either case having (or in the case of a corporation included in a bank
holding company system, the related bank holding company having) a
combined capital and surplus of at least $50,000,000. If such corporation
or bank holding company 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 or bank holding company 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
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
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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
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
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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
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,
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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.
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
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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, which shall have (or in the case of a corporation included
in a bank holding company system, the related bank holding company shall have) 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
or bank holding company 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 or bank holding company 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
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.
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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.
Chase Manhattan Bank and Trust Company,
National Association,
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;
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
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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.
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:
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(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
supplemental indenture to evidence the succession and substitution of such
successor Person and such discharge and release of the Company.
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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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(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
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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
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
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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 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
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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
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
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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 repaid to the Company within 60 days of such
date by the Trustee to the Company as its absolute property free from trust, 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. The Trustee shall
not be liable to the Company or any Holder for interest on funds held by it for
the payment and discharge of the interest, or premium (if any) on or principal
of any of the Securities to any Holder.
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
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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
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
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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.
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
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
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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.
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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.
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
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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 Price, 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
Company may make such reasonable regulations as it may deem advisable for
any meeting of Holders of
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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
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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
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.
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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
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
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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.
(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.
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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
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.
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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
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
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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.
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
unmatured 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
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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.
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
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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
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
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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" 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 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
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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.
(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 been made on
the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
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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 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
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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.
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
-95-
<PAGE>
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 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 this Article 16.
-96-
<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
- ------------------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By______________________________________
Attest
- ------------------------------
-97-
<PAGE>
STATE OF CALIFORNIA
COUNTY OF ORANGE
On the _____ day of _____________, 1999 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)
-98-
<PAGE>
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
On the _____ day of _____________, 1999 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 Chase Manhattan Bank and Trust Company, National Association,
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 Chase
Manhattan Bank and Trust Company, National Association.
--------------------------------
Notary Public
--------------------------------
(Notarial Seal)
-99-
<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).
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
A-2-1
<PAGE>
and (ii) as of the date hereof we have not received any notification from any of
our Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ______________, 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
<PAGE>
Exhibit 4.6
BERGEN BRUNSWIG CORPORATION
TO
CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
----------------------
Indenture
Dated as of May 14, 1999
----------------------
Subordinated Debt Securities
<PAGE>
CROSS REFERENCE TABLE 1
<TABLE>
<CAPTION>
TIA Section Indenture 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.
</TABLE>
- ----------
1 This Cross Reference Table shall not, for any purpose, be deemed to be part
of the Indenture.
<PAGE>
TABLE OF CONTENTS 2
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
Bergen Capital Trust.............................................. 3
Bearer Security................................................... 3
Board of Directors; Board......................................... 3
Board Resolution.................................................. 3
Business Day...................................................... 3
Capital Stock..................................................... 3
CEDEL; CEDEL SA................................................... 3
Closing Price..................................................... 3
Commission........................................................ 4
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................................................ 5
Defaulted Interest................................................ 5
Defeasance........................................................ 5
Defeasible Series................................................. 5
Depositary........................................................ 5
Designated Currency............................................... 5
Dollar; $......................................................... 5
Dollar Equivalent................................................. 5
ECU............................................................... 5
Election Date..................................................... 5
Euroclear......................................................... 5
- ----------
2 This table of contents shall not, for any purpose, be deemed to be a part of
the Indenture.
<PAGE>
European Communities.............................................. 5
European Monetary System.......................................... 5
Event of Default.................................................. 5
Exchange Act...................................................... 5
Exchange Date..................................................... 6
Exchange Rate Agent............................................... 6
Exchange Rate Officer's Certificate............................... 6
Foreign Currency.................................................. 6
Global Security................................................... 6
Holder............................................................ 6
Indebtedness...................................................... 6
Indenture......................................................... 6
Indexed Security.................................................. 6
interest.......................................................... 7
Interest Payment Date............................................. 7
Market Exchange Rate.............................................. 7
Maturity.......................................................... 7
non-electing share................................................ 7
Notice of Default................................................. 8
Officers' Certificate............................................. 8
Opinion of Counsel................................................ 8
Original Issue Discount Security.................................. 8
Outstanding....................................................... 8
Paying Agent...................................................... 9
Person............................................................ 9
Place of Payment.................................................. 9
Predecessor Security.............................................. 9
Redemption Date................................................... 10
Redemption Price.................................................. 10
Reference Date.................................................... 10
Registered Security............................................... 10
Regular Record Date............................................... 10
Remarketing Entity................................................ 10
Repayment Date.................................................... 10
Repayment Price................................................... 10
Responsible Officer............................................... 10
Securities........................................................ 10
Security Register; Security Registrar............................. 10
Senior Indebtedness............................................... 10
Senior Indebtedness Default....................................... 11
Special Record Date............................................... 11
Specified Amount.................................................. 11
Stated Maturity................................................... 11
Subsidiary........................................................ 11
Trading Day....................................................... 12
Trigger Event..................................................... 12
Trustee........................................................... 12
Trust Indenture Act; TIA.......................................... 12
United States..................................................... 12
United States Alien............................................... 12
U.S. Government Obligations....................................... 12
Valuation Date.................................................... 13
Vice President.................................................... 13
<PAGE>
SECTION 1.02. Compliance Certificates and Opinions..................... 13
SECTION 1.03. Form of Documents Delivered to Trustee................... 13
SECTION 1.04. Acts of Holders; Record Dates............................ 14
SECTION 1.05. Notices, Etc., to Trustee and Company.................... 16
SECTION 1.06. Notice to Holders; Waiver................................ 16
SECTION 1.07. Conflict with Trust Indenture Act........................ 18
SECTION 1.08. Effect of Headings and Table of Contents................. 18
SECTION 1.09. Successors and Assigns................................... 18
SECTION 1.10. Separability Clause...................................... 18
SECTION 1.11. Benefits of Indenture.................................... 18
SECTION 1.12. Governing Law............................................ 18
SECTION 1.13. Legal Holidays........................................... 18
SECTION 1.14. Counterparts............................................. 19
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.......................................... 19
SECTION 2.02. Form of Trustee's Certificate of Authentication.......... 19
SECTION 2.03. Securities Issuable in Global Form....................... 20
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series...................... 21
SECTION 3.02. Denominations............................................. 24
SECTION 3.03. Execution, Authentication, Delivery and Dating............ 24
SECTION 3.04. Temporary Securities...................................... 27
SECTION 3.05. Registration; Registration of Transfer and Exchange....... 29
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.......... 33
SECTION 3.07. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset......................................... 34
SECTION 3.08. Optional Extension of Maturity............................ 37
SECTION 3.09. Persons Deemed Owners..................................... 38
SECTION 3.10. Cancellation.............................................. 39
SECTION 3.11. Computation of Interest................................... 39
SECTION 3.12. Currency and Manner of Payments in Respect of Securities.. 39
SECTION 3.13. Appointment and Resignation of Successor Exchange Rate
Agent .................................................... 43
SECTION 3.14. CUSIP Numbers............................................. 44
SECTION 3.15. Certification by a Person Entitled to Delivery of Bearer
Security.................................................. 44
SECTION 3.16. Judgments................................................. 44
SECTION 3.17. Medium Term Securities.................................... 45
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture................... 45
SECTION 4.02. Application of Trust Money................................ 47
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default......................................... 47
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment........ 49
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................. 50
SECTION 5.04. Trustee May File Proofs of Claim.......................... 51
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities or Coupons.................................. 52
SECTION 5.06. Application of Money Collected............................ 52
SECTION 5.07. Limitation on Suits....................................... 53
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................... 53
SECTION 5.09. Restoration of Rights and Remedies........................ 54
SECTION 5.10. Rights and Remedies Cumulative............................ 54
SECTION 5.11. Delay or Omission Not Waiver.............................. 54
SECTION 5.12. Control by Holders........................................ 54
SECTION 5.13. Waiver of Past Defaults................................... 55
SECTION 5.14. Undertaking for Costs..................................... 55
SECTION 5.15. Waiver of Usury, Stay or Extension Laws................... 56
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities....................... 56
SECTION 6.02. Notice of Defaults........................................ 57
SECTION 6.03. Certain Rights of Trustee................................. 58
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.... 59
SECTION 6.05. May Hold Securities....................................... 59
SECTION 6.06. Money Held in Trust....................................... 59
SECTION 6.07. Compensation and Reimbursement............................ 60
SECTION 6.08. Disqualification; Conflicting Interests................... 61
SECTION 6.09. Corporate Trustee Required; Eligibility................... 62
SECTION 6.10. Resignation and Removal; Appointment of Successor......... 62
SECTION 6.11. Acceptance of Appointment by Successor.................... 64
<PAGE>
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business 65
SECTION 6.13. Preferential Collection of Claims Against Company......... 66
SECTION 6.14. Appointment of Authenticating Agent....................... 66
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders.............................................. 67
SECTION 7.02. Preservation of Information; Communications to Holders.... 68
SECTION 7.03. Reports by Trustee........................................ 68
SECTION 7.04. Reports by Company........................................ 69
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms...... 69
SECTION 8.02. Successor Person Substituted.............................. 70
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders........ 70
SECTION 9.02. Supplemental Indentures with Consent of Holders........... 71
SECTION 9.03. Execution of Supplemental Indentures...................... 73
SECTION 9.04. Effect of Supplemental Indentures......................... 73
SECTION 9.05. Conformity with Trust Indenture Act....................... 73
SECTION 9.06. Reference in Securities to Supplemental Indentures........ 73
SECTION 9.07 Notice of Supplemental Indenture.......................... 74
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest............... 74
SECTION 10.02. Maintenance of Office or Agency.......................... 74
SECTION 10.03. Money for Securities Payments to Be Held in Trust........ 75
SECTION 10.04. Purchase of Securities by Company or Subsidiary.......... 77
SECTION 10.05. Payment of Additional Amounts............................ 77
SECTION 10.06. Statement by Officers as to Default...................... 78
SECTION 10.07. Existence................................................ 78
<PAGE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article................................. 78
SECTION 11.02. Election to Redeem; Notice to Trustee.................... 78
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed........ 79
SECTION 11.04. Notice of Redemption..................................... 79
SECTION 11.05. Deposit of Redemption Price.............................. 80
SECTION 11.06. Securities Payable on Redemption Date.................... 81
SECTION 11.07. Securities Redeemed in Part.............................. 81
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article................................. 82
SECTION 12.02. Provisions with Respect to any Sinking Funds............. 82
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.01. Applicability of Article................................. 83
SECTION 13.02. Repayment of Securities.................................. 83
SECTION 13.03. Exercise of Option; Notice............................... 83
SECTION 13.04. Election of Repayment by Remarketing Entities............ 85
SECTION 13.05. Securities Payable on the Repayment Date................. 85
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.01. Purposes for Which Meetings May Be Called................ 85
SECTION 14.02. Call, Notice and Place of Meetings....................... 85
SECTION 14.03. Persons Entitled to Vote at Meetings..................... 86
SECTION 14.04. Quorum; Action........................................... 86
SECTION 14.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings........................................... 87
SECTION 14.06. Counting Votes and Recording Action of Meetings.......... 88
<PAGE>
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Company's Option to Effect Defeasance or Covenant
Defeasance .............................................. 89
SECTION 15.02. Defeasance and Discharge................................. 89
SECTION 15.03. Covenant Defeasance...................................... 89
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance.......... 90
SECTION 15.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.......... 91
SECTION 15.06. Reinstatement............................................ 92
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 16.01. Securities Subordinate to Senior Indebtedness............ 93
SECTION 16.02 Payment of Proceeds upon Dissolution, Etc................ 93
SECTION 16.03 Default on Senior Indebtedness........................... 95
SECTION 16.04 Prior Payment to Senior Indebtedness Upon
Acceleration of Securities............................. 95
SECTION 16.05 Payment Permitted if No Default.......................... 96
SECTION 16.06 Subrogation to Rights of Holders of Senior Indebtedness.. 96
SECTION 16.07 Provisions Solely to Define Relative Rights.............. 97
SECTION 16.08 Trustee to Effectuate Subordination...................... 97
SECTION 16.09 No Waiver of Subordination Provisions.................... 97
SECTION 16.10 Notice to Trustee........................................ 98
SECTION 16.11 Reliance on Judicial Order or Certificate of Liquidating
Agent ................................................... 99
SECTION 16.12 Trustee Not Fiduciary for Holders of Senior Indebtedness. 99
SECTION 16.13 Rights of Trustee as Holders of Senior Indebtedness;
Preservation of Trustee's Rights....................... 99
SECTION 16.14 Article Sixteen Applicable to Paying Agents.............. 100
ARTICLE SEVENTEEN
CONVERSION OF SECURITIES
SECTION 17.01. Conversion Privilege and Conversion Price................ 100
SECTION 17.02. Exercise of Conversion Privilege......................... 101
SECTION 17.03. Fractions of Shares...................................... 102
SECTION 17.04. Adjustment of Conversion Price........................... 102
SECTION 17.05. Notice of Adjustments of Conversion Price................ 106
SECTION 17.06. Notice of Certain Corporate Action....................... 106
SECTION 17.07. Company to Reserve Common Stock.......................... 107
SECTION 17.08. Taxes on Conversions..................................... 107
<PAGE>
SECTION 17.09. Covenant as to Common Stock.............................. 107
SECTION 17.10. Cancellation of Converted Securities, etc................ 107
SECTION 17.11. Provision in the Case of Consolidation, Merger or Sales
of Assets............................................... 108
SECTION 17.12 Trustee's Adjustment Disclaimer.......................... 108
TESTIMONIUM ......................................................... 109
SIGNATURES AND SEALS.................................................... 109
ACKNOWLEDGMENTS......................................................... 110
FORMS OF CERTIFICATION..................................................A-1-1
<PAGE>
THIS INDENTURE, dated as of May 14, 1999, is between BERGEN BRUNSWIG
CORPORATION, a New Jersey corporation having offices at 4000 Metropolitan Drive,
Orange, California 92868-3510 (herein called the "Company"), and CHASE MANHATTAN
BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, 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;
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"indenture security holder" means the Holder;
"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.
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"Bergen Capital Trust" shall mean each of Bergen Capital Trust I, Bergen
Capital Trust II and Bergen Capital Trust III, each a Delaware business trust,
or any other similar trust, or any partnership or other entity affiliated with
the Company created for the purpose of issuing securities in connection with the
issuance of Securities under this Indenture.
"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
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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.
"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 101 California
Street, Suite 2725, 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.
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"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.
"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.
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"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.
"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.
"Indebtedness," as applied to a Person, means, as of the date on which
Indebtedness is to be determined and without duplication (i) all obligations
represented by notes, bonds, debentures or similar evidences of indebtedness;
(ii) all indebtedness for borrowed money or for the deferred purchase price of
property or services other than, in the case of any such deferred purchase
price, on normal trade terms; (iii) all rental obligations as lessee under
leases which shall have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases; and (iv) all Indebtedness of
others for the payment of which such Person is responsible or liable as obligor
or guarantor.
"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
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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
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.
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"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
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
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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.
"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.
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"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.
"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 on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Federal bankruptcy law or any other
applicable Federal or State law, but only to the extent allowed or permitted to
the holder of such Indebtedness of the Company against the bankruptcy or any
other insolvency estate of the Company in such proceeding) and other amounts due
on or in connection with any Indebtedness of the Company incurred, assumed or
guaranteed by the Company, whether outstanding on the date of the Indenture or
thereafter incurred, assumed or guaranteed and all renewals, extensions and
refundings of any such Indebtedness of the Company; provided, however, that the
following will not constitute Senior Indebtedness:
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(a) indebtedness outstanding under the indenture between the Company and
Chemical Trust Company of California ("Chemical") dated as of July 15,
1986;
(b) the subordinated indenture between the Company and Chemical dated as of
December 1, 1992;
(c) indebtedness as to which the instruments creating or evidencing the
same provide that such indebtedness is not senior in right of payment to
the Securities (collectively, the "Pari Passu Debt");
(d) Indebtedness of the Company in respect of the Securities;
(e) any Indebtedness of the Company constituting trade accounts payable
arising in the ordinary course of business;
(f) any Indebtedness of the Company initially issued to any other BBC
Capital Trust in connection with an issuance by such BBC Capital Trust of
preferred securities or other securities similar to preferred securities;
and
(g) any Indebtedness of the Company to any Subsidiary of the Company.
"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).
"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
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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
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
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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
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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
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
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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
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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 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
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filed with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the 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
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(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.
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.
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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.
------------------------------------
, 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).
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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.
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);
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(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;
(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
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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 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;
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(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
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.
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(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
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,
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(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
be delivered by the Trustee to such Depositary or a custodian 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.
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(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,
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
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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
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
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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
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.
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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
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
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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
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
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(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
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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
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
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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.
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.
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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:
(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
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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.
(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
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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.
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.
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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
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.
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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
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.
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(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.
(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)
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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.
(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:
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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 Curency
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
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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.
(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
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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 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
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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
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
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(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
(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.
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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
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:
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(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 period) of, such
indebtedness or guarantee in an aggregate amount exceeding $25,000,000, 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
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
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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.
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):
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(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.
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
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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.
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
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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;
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
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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;
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
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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.
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
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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
(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
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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.
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
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(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of
the Outstanding Securities of 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
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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;
(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;
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(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.
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.
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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
(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.
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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.
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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:
(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 (or in the case of a corporation included in a
bank holding company system, the related bank holding company having) a
combined capital and surplus of at least $50,000,000. If such
corporation or bank holding company 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 or bank
holding company 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.
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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
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
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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
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
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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 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
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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.
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, which shall have
(or in the case of a corporation included in a bank holding company system,
the related bank holding company shall have) 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 or bank holding company
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 or bank holding company 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.
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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
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.
Chase Manhattan Bank and Trust
Company, National Association,
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.
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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;
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
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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.
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.
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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
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
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(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
(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.
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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 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.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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.
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.
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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 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
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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.
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.
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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
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 repaid to the
Company within 60 days of such date by the Trustee to the Company as its
absolute property free from trust, 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. The
Trustee shall not be liable to the Company or any Holder for interest on
funds held by it for the payment and discharge of the interest, or premium
(if any), on or principal of any of the Securities to any Holder.
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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.
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.
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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
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
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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.
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,
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(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.
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
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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.
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
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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
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
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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
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
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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.
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.
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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.
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,
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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
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
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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 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
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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
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.
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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
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
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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
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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
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makes any payment of principal of (or premium, if any) or interest, if any, 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 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 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
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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 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.
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SECTION 16.03. Default on Senior Indebtedness.
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.
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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
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
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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 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
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covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
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
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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 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 a 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.
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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.
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)
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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.
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 unmatured 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
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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.
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
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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
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
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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 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
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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 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 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 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 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
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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:
(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.
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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
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.
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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,
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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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:
- ------------------------------
CHASE MANHATTAN BANK AND
TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By:
------------------------------
Attest:
- ------------------------------
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STATE OF CALIFORNIA
COUNTY OF ORANGE
On the ______ day of ____________, 1999, 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)
110
<PAGE>
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
On the ______ day of ____________, 1999, 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 Chase Manhattan Bank and Trust Company, National Association,
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 Chase
Manhattan Bank and Trust Company, National Association.
-------------------------------
Notary Public
-------------------------------
(Notarial Seal)
111
<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
able to certify and as to which we
A-1-1
<PAGE>
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
Organizations
A-2-1
<PAGE>
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
<PAGE>
Exhibit 4.10
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
BERGEN BRUNSWIG CORPORATION
Dated: May 7, 1999
Pursuant to N.J.S.A. 14A:9-4(3), the undersigned corporation (the
"Corporation") does hereby certify as follows:
1. The name of the Corporation is Bergen Brunswig Corporation.
2. Article VI of the Restated Certificate of Incorporation of Bergen Brunswig
Corporation is hereby amended by deleting the first sentence thereof, and
replacing such first sentence with the following sentence:
"The total authorized capital stock of the
Corporation shall be 303,000,000 shares consisting of:
1. 3,000,000 shares of Preferred Stock without
nominal or par value; and
2. 300,000,000 shares of Class A Common Stock, par
value $1.50 per share."
3. The foregoing amendment was adopted by the shareholders of the Corporation on
April 22, 1999.
4. The number of shares entitled to vote on the foregoing amendment is
109,327,384.
5. The number of shares voted for and against the foregoing amendment is as
follows:
For 92,577,457
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Against 5,688,939
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The Corporation has caused this Certificate of Amendment to its
Restated Certificate of Incorporation to be executed on its behalf on this 7th
day of May, 1999.
BERGEN BRUNSWIG CORPORATION
By: /s/ MILAN A. SAWDEI
---------------------------
Milan A. Sawdei,
Executive Vice President
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RESTATED CERTIFICATE OF INCORPORATION
OF
BERGEN BRUNSWIG CORPORATION
Pursuant to the provisions of Section 14A:9-5(2) of the New
Jersey Business Corporation Act, the undersigned Corporation adopts the
following Restated Certificate of Incorporation.
ARTICLE I
The name of the Corporation is Bergen Brunswig Corporation.
ARTICLE II
The address of the current registered office in this State is
28 West State Street, in the City of Trenton, County of Mercer.
ARTICLE III
The name of the current registered agent therein and in the
charge thereof upon whom process against this Corporation may be served is
Corporation Trust Company.
ARTICLE IV
The number of directors constituting the current board of
directors is 11. The names and addresses of the current directors are as
follows:
Jose E. Blanco, Sr. George R. Liddle
J.M. Blanco, Inc. 595 Oakfield Lane
Lot 21 D Street Menlo Park, CA 94025
Amelia Industrial Part
Guaynabo, PR 00968 Robert E. Martini
Bergen Brunswig Corporation
Dr. Rodney H. Brady 4000 Metropolitan Drive
Deseret Management Orange, CA 92868
Corporation
Eagle Gate Tower James R. Mellor
60 East South Temple General Dynamics Corporation
Suite 575 3190 Fairview Park Drive
Salt Lake City, UT 84111 Falls Church, VA 22042
Neil F. Dimick George E. Reinhardt, Jr.
Bergen Brunswig Corporation 1709 Dalton Road
4000 Metropolitan Drive Palos Verdes Estates
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Orange, CA 92868 Palos Verdes, CA 90274
Charles C. Edwards, M.D. Donald R. Roden
Scripps Research Institution Bergen Brunswig Corporation
10666 N. Torrey Pines Road 4000 Metropolitan Drive
Mail Drop TPC-16 Orange, CA 92868-3510
La Jolla, CA 02037
Francis G. Rodgers
Charles J. Lee 159 Pear Tree Point Road
400 Selby Lane Darien, CT 06820
Atherton, CA 94025
ARTICLE V
The objects for which this Corporation is formed are to engage
in any activity for which corporations may be organized under the New Jersey
Business Corporation Act.
ARTICLE VI
The total authorized capital stock of the Corporation shall be
203,000,000 shares consisting of
1. 3,000,000 shares of Preferred Stock without nominal or par
value; and
2. 200,000,000 shares of Class A Common Stock, par value $1.50
per share.
Shares of authorized capital stock of each class may be issued for such
consideration (not less than the par value thereof in the case of stock with par
value) as may be determined from time to time by the Board of Directors.
The voting powers and designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
restrictions, or limitations thereof are as follows:
A. PREFERRED STOCK. The Board of Directors is hereby
authorized to divide the preferred stock into one or more series, to determine
the designation of and the number of shares of any series, to determine the
relative rights, preferences and limitations of the shares of any class or of
any series. All those determinations may be made by an amendment to this
Certificate of Incorporation adopted by the Board of Directors. That amendment
may fix the designations, preferences and relative participating, optional and
other special rights and the qualifications, limitations and restrictions of
such series, including the following:
1. The number of shares constituting that series;
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2. The rate and times at which, and the terms and conditions
on which, dividends on preferred stock of that series will be paid;
3. Provisions making dividends payable with respect to
preferred stock of that series cumulative, non-cumulative or partially
cumulative;
4. Provisions making dividends payable with respect to the
preferred stock of that series fully participating, partially participating, or
non-participating, and payable on a parity with subordinate or in preference to
the dividends payable on any other class or series;
5. The right, if any, of the holders of the preferred stock of
that series to convert the same into, or exchange the same for, shares of other
classes or series of stock of the Corporation and the terms and conditions of
that conversion or exchange, including provision for adjustment of the
conversion price or rate in such events as the Board of Directors shall
determine;
6. The redemption price or prices, if any, and the time or
times at which, and the terms and conditions on which, preferred stock of that
series many be redeemed;
7. The rights of the holders of preferred stock of that series
upon the voluntary or involuntary dissolution, liquidation or winding up of the
Corporation;
8. The terms or amount of any sinking fund provided for the
purchase or redemption of the preferred stock of that series; and
9. Provisions giving the preferred stock of that series
special, limited, multiple or no voting rights and specifying those voting
rights, if any.
B. COMMON STOCK.
1. DIVIDENDS. Subject to the preferences and other rights of
the preferred stock as may be fixed in the amendment to this Certificate of
Incorporation, dividends (payable in cash stock or otherwise) may be declared
and paid out of funds legally available therefor upon any class of common stock
from time to time as may be determined by the Board of Directors.
Notwithstanding anything in this Certificate of Incorporation to the contrary,
however, those dividends may be declared and paid whether or not the net assets
of the Corporation remaining after such dividend payment are less than the
aggregate amount of the preferences of outstanding shares in the assets of the
Corporation upon liquidation.
2. RIGHTS UPON LIQUIDATION, DISSOLUTION, OR WINDING UP. In the
event of any liquidation, dissolution, or winding up of the affairs of the
Corporation, after payment to the holders of preferred stock of the full amounts
to which they have a liquidation preference, the holders of all classes of
common stock shall be entitled to share ratably per share without regard to
class in all assets then remaining subject to distribution to the stockholders.
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C. VOTING RIGHTS. At every meeting of the stockholders of the
Corporation, every holder of Class A Common Stock shall be entitled to one (1)
vote per share.
1. ELECTION AND REMOVAL OF DIRECTORS. The Board of Directors
of the Corporation shall consist of not more than 15 directors nor less than 9
directors, the exact number of directors within such limits to be fixed by the
Board of Directors as provided in the By-Laws. All directors shall serve until
their successors shall have been duly elected and shall have qualified.
Elections of directors need not be by ballot unless the By-Laws shall so
provide.
(a) Persons holding Class A Common Stock shall be
entitled to elect the directors. Those directors shall be
divided into three classes, each class to be as nearly equal
to the other in number as possible and the number of directors
in each class to be specified in the By-Laws. At each annual
meeting of the stockholders of the Corporation, the number of
directors equal to the number of the class whose term expires
at the meeting shall be elected to hold office until the third
succeeding annual meeting.
(b) Any director may be removed at any time, either
for or without cause, by, and only by, the holders of record
of Class A Common Stock voting at a meeting of such
stockholders called for the purpose; any vacancy thus created
may be filled at such meeting; and any vacancy caused by the
death or resignation of a director elected by holders of Class
A Common Stock may be filled only by holders of Class A Common
Stock at a meeting called for that purpose, or by a majority
of the remaining directors elected by those holders.
2. GENERAL MATTERS. Any resolution, motion or corporate action
which shall require the vote of the stockholders, other than one relating to the
election of directors, may be validly adopted, authorized or approved by the
affirmative vote of a majority of the votes cast by the holders of the Class A
Common Stock voting at that meeting.
D. FRACTIONAL SHARES. The Corporation shall not be required to
issue any fractions of shares of Class A Common Stock. If any interest in a
fractional share of Class A Common Stock would otherwise be deliverable upon
payment of any stock dividend or in connection with any stock split or
combination, or upon conversion of any share or shares of preferred stock or
other convertible security, the Corporation shall make adjustment for that
fractional share interest by payment of an amount in cash equal to the same
fraction of the market value of a full share of Class A Common Stock of the
Corporation. For that purpose, the market value of a share of Class A Common
Stock shall be the last recorded sale price regular way of a share of that stock
on the principal national securities exchange on which the Class A Common Stock
is listed or admitted to trading on the record date for that stock dividend or
the last trading day before that stock split or combination shall become
effective or the last trading day before shares of preferred stock or other
convertible security are surrendered for conversion, or if there be no recorded
sale price regular way on such day, the last quoted bid price per share of the
Class A Common Stock on that exchange at the close of trading on that date. If
the Class A Common Stock shall not at such time be traded on a national
securities exchange, the market
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value of the Class A Common Stock shall be the then prevailing market price of
that stock on any other securities exchange or in the over-the-counter market,
as determined by the Corporation, which determination shall be conclusive.
E. PREEMPTIVE RIGHTS. No holder of stock of any class of the
Corporation shall have any preemptive right, as such stockholder, to purchase or
subscribe for, or to receive rights or warrants to purchase or subscribe for,
any shares of any class of stock of the Corporation, whether now or hereafter
authorized, which the Corporation may issue or sell, or any obligations which
the Corporation may issue or sell that shall be convertible into, or
exchangeable for, any shares of any class of stock of the Corporation.
F. SERIES A JUNIOR PARTICIPATING PREFERRED STOCK. Pursuant to
the authority set forth in Article VI, Section A, the Board of Directors created
a series of Preferred Stock by resolution adopted on February 8, 1994. The
designation and amount thereof and the voting powers, preferences and relative
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "Series A Junior Participating Preferred Stock" and the
number of shares constituting such series shall be 400,000.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior Participating Preferred
Stock in preference to the holders of Class A Common Stock, par value $1.50 per
share (the "Class A Common Stock") shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of March, June,
September and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Junior Participating Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Class A Common Stock or a subdivision of the
outstanding shares of Class A Common Stock (by reclassification or otherwise),
declared on the Class A Common Stock since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series A
Junior Participating Preferred Stock. In the event the Corporation shall at any
time after February 18, 1994 (the "Rights Declaration Date") (i) declare any
dividend on the Common Stock payable in shares of Class A Common Stock, (ii)
subdivide the outstanding Class A Common Stock, or (iii) combine the outstanding
Class A Common Stock into a smaller number of shares, then in each such case the
amount to which holders of shares of Series A Junior
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Participating Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Class A
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of A Common Stock that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series A Junior Participating Preferred Stock as provided in Paragraph
(A) above immediately after it declares a dividend or distribution on the Class
A Common Stock (other than a dividend payable in shares of Class A Common
Stock); provided that, in the event no dividend or distribution shall have been
declared on the Class A Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $1.00 per share on the Series A Junior Participating Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such shares
of Series A Junior Participating Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Junior Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series A
Junior Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Junior Participating Preferred Stock shall entitle
the holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on the Common Stock
payable in shares of Class A Common Stock, (ii) subdivide the outstanding Class
A Common Stock, or (iii) combine the outstanding Class A Common Stock into a
smaller number of shares, then in each such case the number of votes per share
to which holders of shares of Series A Junior Participating Preferred Stock were
entitled, immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of
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shares of Class A Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class A Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series A Junior Participating Preferred Stock and the holders of
shares of Class A Common Stock and any other capital stock of the Corporation
having general rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount
equal to six (6) quarterly dividends thereon, the occurrence
of such contingency shall mark the beginning of a period
(herein called a "default period") which shall extend until
such time when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current
quarterly dividend period on all shares of Series A Junior
Participating Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each
default period, all holders of Preferred Stock (including
holders of the Series A Junior Participating Preferred Stock)
with dividends in arrears in an amount equal to six (6)
quarterly dividends thereon, voting as a class, irrespective
of series, shall have the right to elect two (2) Directors.
(ii) During any default period, such voting
right of the holders of Series A Junior Participating
Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section
3(C) or at any annual meeting of stockholders, and thereafter
at annual meetings of stockholders, provided that neither such
voting right nor the right of the holders of any other series
of Preferred Stock, if any, to increase, in certain cases, the
authorized number of Directors shall be exercised unless the
holders of ten percent (10%) in number of shares of Preferred
Stock outstanding shall be present in person or by proxy. The
absence of a quorum of the holders of Common Stock shall not
affect the exercise by the holders of Preferred Stock of such
voting right. At any meeting at which the holders of Preferred
Stock shall exercise such voting right initially during an
existing default period, they shall have the right, voting as
a class, to elect Directors to fill such vacancies, if any, in
the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual meeting,
to elect two (2) Directors. If the number which may be so
elected at any special meeting does not amount to the required
number, the holders of the Preferred Stock shall have the
right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the
required number. After the holders of the Preferred Stock
shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the
number of Directors shall not be increased or decreased except
by vote of the holders of Preferred Stock as herein provided
or pursuant to the rights of any
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equity securities ranking senior to or PARI PASSU with the
Series A Junior Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock
shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of
Directors may order, or any stockholder or stockholders owning
in the aggregate not less than ten percent (10%) of the total
number of shares of Preferred Stock outstanding, irrespective
of series, may request, the calling of a special meeting of
the holders of Preferred Stock, which meeting shall thereupon
be called by the President, a Vice-President or the Secretary
of the Corporation. Notice of such meeting and of any annual
meeting at which holders of Preferred Stock are entitled to
vote pursuant to this Paragraph (C)(iii) shall be given to
each holder of record of Preferred Stock by mailing a copy of
such notice to him at his last address as the same appears on
the books of the Corporation. Such meeting shall be called for
a time not earlier than 20 days and not later than 60 days
after such order or request or in default of the calling of
such meeting within 60 days after such order or request, such
meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent
(10%) of the total number of shares of Preferred Stock
outstanding. Notwithstanding the provisions of this Paragraph
(C)(iii), no such special meeting shall be called during the
period within 60 days immediately preceding the date fixed for
the next annual meeting of the stockholders.
(iv) In any default period, the holders of
Class A Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be entitled to
elect the whole number of Directors until the holders of
Preferred Stock shall have exercised their right to elect two
(2) Directors voting as a class, after the exercise of which
right (x) the Directors so elected by the holders of Preferred
Stock shall continue in office until their successors shall
have been elected by such holders or until the expiration of
the default period, and (y) any vacancy in the Board of
Directors may (except as provided in Paragraph (C)(ii) of this
Section 3) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of
stock which elected the Director whose office shall have
become vacant. References in this Paragraph (C) to Directors
elected by the holders of a particular class of stock shall
include Directors elected by such Directors to fill vacancies
as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a
default period, (x) the right of the holders of Preferred
Stock as a class to elect Directors shall cease, (y) the term
of any Directors elected by the holders of Preferred Stock as
a class shall terminate, and (z) the number of Directors shall
be such number as may be provided for in the certificate of
incorporation or by-laws irrespective of any increase made
pursuant to the provisions of Paragraph (C)(ii) of this
Section 3 (such number being subject, however, to change
thereafter in any manner
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provided by law or in the certificate of incorporation or
by-laws). Any vacancies in the Board of Directors effected by
the provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining
Directors.
(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Class A Common Stock as set forth herein) for taking any
corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series
A Junior Participating Preferred Stock outstanding shall have been paid in full,
the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Junior Participating Preferred
Stock, except dividends paid ratably on the Series A Junior
Participating Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding
up) with the Series A Junior Participating Preferred Stock,
provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Junior
Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Series A Junior Participating Preferred Stock,
or any Shares of stock ranking on a parity with the Series A
Junior Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series
and classes, shall determine in good
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faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under Paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. REACQUIRED SHARES. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and restrictions on issuance
set forth herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. (A) Upon
any liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior Participating Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Class A Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph (C) below to reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Class A Common Stock) (such number in
clause (ii), the "Adjustment Number"). Following the payment of the full amount
of the Series A Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of Series A Junior Participating Preferred Stock and
Class A Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Class A Common Stock shall receive
their ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such Preferred Stock
and Class A Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of preferred
stock, if any, which rank on a parity with the Series A Junior Participating
Preferred Stock, then such remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Class A Common
Stock.
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(C) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Class A Common Stock payable
in shares of Class A Common Stock, (ii) subdivide the outstanding Class A Common
Stock, or (iii) combine the outstanding Class A Common Stock into a smaller
number of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such Adjustment
Number by a fraction the numerator of which is the number of shares of Class A
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Class A Common Stock that were outstanding
immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Class A Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such case the
shares of Series A Junior Participating Preferred Stock shall at the same time
be similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100 times the aggregate
amount of stock, securities, cash and/or any other property (payable in kind),
as the case may be, into which or for which each share of Class A Common Stock
is changed or exchanged. In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on Class A Common Stock
payable in shares of Class A Common Stock, (ii) subdivide the outstanding Class
A Common Stock, or (iii) combine the outstanding Class A Common Stock into a
smaller number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Class A
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Class A Common Stock that were outstanding
immediately prior to such event.
Section 8. NO REDEMPTION. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.
Section 9. RANKING. The Series A Junior Participating
Preferred Stock shall rank junior to all other series of the Corporation's
Preferred Stock as to the payment of dividends and the distribution of assets,
unless the terms of any such series shall provide otherwise.
Section 10. AMENDMENT. The Restated Certificate of
Incorporation of the Corporation shall not be further amended in any manner
which would materially alter or change the powers, preferences or special rights
of the Series A Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a majority or more of
the outstanding shares of Series A Junior Participating Preferred Stock, voting
separately as a class.
Section 11. FRACTIONAL SHARES. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall entitle the
holder, in proportion to such holders
-12-
<PAGE>
fractional shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Series A
Junior Participating Preferred Stock.
ARTICLE VII
Every person who is or was a director, officer, employee, or
agent of the Corporation, or of any corporation which he served as such at the
request of the Corporation, shall be indemnified by the Corporation to the
fullest extent permitted by law against all expenses and liabilities reasonably
incurred by or imposed upon him, in connection with any proceeding to which he
may be made, or threatened to be made, a party, or in which he may become
involved by reason of his being or having been a director, officer, employee or
agent of the Corporation, or of such other corporation, whether or not he is a
director, officer, employee or agent of the Corporation, or such other
corporation, at the time the expenses or liabilities are incurred.
ARTICLE VIII
So long as permitted by law, no director of the Corporation
shall be personally liable to the Corporation or its shareowners for damages for
breach of any duty owed by such person to the Corporation or its shareowners;
provided, however, that this Article VIII shall not relieve any person from
liability to the extent provided by applicable law for any breach of duty based
upon an act or omission (a) in breach of such person's duty of loyalty to the
Corporation or its shareowners, (b) not in good faith or involving a knowing
violation of law or (c) resulting in receipt by such person of an improper
personal benefit. No amendment to or repeal of this Article VIII and no
amendment, repeal or termination of effectiveness of any law authorizing this
Article VIII shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or omissions of such
director occurring prior to such amendment, repeal or termination of
effectiveness.
ARTICLE IX
So long as permitted by law, no officer of the Corporation
shall be personally liable to the Corporation or its shareowners for damages for
breach of any duty owed by such person to the Corporation or its shareowners;
provided, however, that this Article IX shall not relieve any person from
liability to the extent provided by applicable law for any breach of duty based
upon an act or omission (a) in breach of such person's duty of loyalty to the
Corporation or its shareowners, (b) not in good faith or involving a knowing
violation of law or (c) resulting in receipt by such person of an improper
personal benefit. No amendment to or repeal of this Article IX and no amendment,
repeal or termination of effectiveness of any law authorizing this Article IX
shall apply to or have any effect on the liability or alleged liability of any
officer for or with respect to any acts or omissions of such officer occurring
prior to such amendment, repeal or termination of effectiveness.
The foregoing Restated Certificate of Incorporation has been
executed on behalf of Bergen Brunswig Corporation this 13th day of November,
1998.
-13-
<PAGE>
BERGEN BRUNSWIG CORPORATION
By: /s/ ROBERT E. MARTINI
---------------------------
Robert E. Martini, Chairman
ATTEST:
/s/ MILAN A. SAWDEI
- --------------------------
Milan A. Sawdei, Secretary
-14-
<PAGE>
Exhibit 12.1
BERGEN BRUNSWIG CORPORATION
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE SIX MONTHS ENDED MARCH 31, 1998 AND 1999
AND THE YEARS ENDED SEPTEMBER 30, 1994, 1995, 1996, 1997 AND 1998
(In thousands, except ratios)
<TABLE>
<CAPTION>
Six Months Ended
Years Ended September 30, March 31,
---------------------------------------------------------------- -----------------------
1994 1995 1996 1997 1998 1998 1999
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest and amortization
of debt issuance costs $ 25,039 $ 32,800 $ 31,266 $ 31,842 $ 38,616 $ 20,984 $ 24,524
Portion of rental expense
representing interest 5,299 5,661 5,946 7,437 8,705 4,283 4,997
-------- -------- -------- -------- -------- -------- --------
Total fixed charges 30,338 38,461 37,212 39,279 47,321 25,267 29,521
Earnings:
Earnings before taxes on income 98,112 109,490 125,270 138,439 65,903 74,852 111,470
-------- -------- -------- -------- -------- -------- --------
Total earnings $128,450 $147,951 $162,482 $177,718 $113,224 $100,119 $140,991
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges 4.2 3.8 4.4 4.5 2.4 4.0 4.8
======== ======== ======== ======== ======== ======== ========
</TABLE>
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Amendment No. 1 to
Registration Statement
No. 333-74349 of Bergen Brunswig Corporation on Form S-3 of our report dated
October 30, 1998 (except for Note 12 as to which the date is November 25, 1998),
appearing in the Annual Report on Form 10-K of Bergen Brunswig Corporation for
the fiscal year ended September 30, 1998, and to the reference to us under the
heading "Experts" in the Prospectus, which is part of such Registration
Statement.
/s/ DELOITTE & TOUCHE LLP
Costa Mesa, California
May 14, 1999
<PAGE>
Exhibit 23.3
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of Bergen Brunswig Corporation on Form
S-3 of our report dated February 26, 1999, for PharMerica, Inc., included in
Bergen Brunswig Corporation's Form 8-K dated April 30, 1999, and to all
references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Baltimore, Maryland,
May 13, 1999
<PAGE>
Exhibit 23.4
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-74349) and
related Prospectus of Bergen Brunswig Corporation and to the incorporation by
reference therein of our report dated April 18, 1997, with respect to the
consolidated financial statements and schedule of PharMerica, Inc. (formerly
Pharmacy Corporation of America) and subsidiaries included in the Bergen
Brunswig Corporation Current Report (Form 8-K) dated April 30, 1999, filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Little Rock, Arkansas
May 12, 1999
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
-----------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)____
-------------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
------------------
Bergen Brunswig Corporation
(Exact name of Obligor as specified in its charter)
New Jersey
(State or other jurisdiction of incorporation or organization)
22-1444512
(I.R.S. Employer Identification No.)
4000 Metropolitan Drive
Orange, California
(Address of principal executive offices)
92668-3510
(Zip Code)
--------------------------------
Debt Securities
(Title of Indenture securities)
1
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 4. Trusteeships under Other Indentures
(a) Title of securities outstanding under each such indenture.
$8,425,000 6-7/8% Exchangeable Subordinated Debentures due 2011
issued under Indenture dated as of July 15, 1986. $100,000,000
7-1/4% Senior Notes due 6/1/2005 and $150,000,000 7-3/8% Senior
Notes due 2003 issued under Indenture dated as of December 1, 1992.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see
Exhibit 1 to Form T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-41329,
which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
2
<PAGE>
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National Association, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of San
Francisco, and State of California, on the 11th day of May 1999.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ James Nagy
-------------------------------
James Nagy
Assistant Vice President
4
<PAGE>
Exhibit 7. Report of Condition of the Trustee.
================================================================================
Consolidated Report of Condition of Chase Manhattan Bank and Trust Company, N.A.
--------------------------------------------
(Legal Title)
Located at 1800 Century Park East, Ste. 400 Los Angeles, CA 94111
---------------------------------------------------------------------
(Street) (City) (State) (Zip)
as of close of business on March 31, 1999
--------------------
================================================================================
================================================================================
ASSETS DOLLAR AMOUNTS IN THOUSANDS
1. Cash and balances due from
a. Noninterest-bearing balances and currency and
coin (1,2) 2,305
b. Interest bearing balances (3) 0
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A) 0
b. Available-for-sale securities (from Schedule
RC-B, column D) 1,102
3. Federal Funds sold (4) and securities purchased
agreements to resell 64,250
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C) 162
b. LESS: Allowance for loan and lease losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and
4.c) 162
5. Trading assets 0
6. Premises and fixed assets (including capitalized
leases) 280
7. Other real estate owned (from Schedule RC-M) 0
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 0
9. Customers liability to this bank on acceptances
outstanding 0
10. Intangible assets (from Schedule RC-M) 1,292
11. Other assets (from Schedule RC-F) 2,111
12a. TOTAL ASSETS 71,502
(1) includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b
(3) includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a "Loans and
leases, net of unearned income" and in Schedule RC-C, part 1.
5
<PAGE>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E) 41,121
(1) Noninterest-bearing 6,008
(2) Interest-bearing 35,113
b. In foreign offices, Edge and Agreement
subsidiaries, and IBF'
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased (2) and securities sold under
agreements to repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
a. With a remaining maturity of one year or less 0
b. With a remaining maturity of more than one year
through three years 0
c. With a remaining maturity of more than three
years 0
17. Not applicable
18. Bank's liability on acceptances executed and
outstanding 0
19. Subordinated notes and Debentures (3) 0
20. Other liabilities (from Schedule RC-G) 5,058
21. Total liabilities (sum of items 13 through 20) 46,179
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock-- 600
25. Surplus (exclude all surplus related to preferred
stock) 12,590
26. a. Undivided profits and capital reserves 12,133
b. Net unrealized holding gains (losses) on
available-for-sale securities 0
27. Cumulative foreign currency translation adjustments
28. a. Total equity capital (sum of items 23 through 27) 25,323
29. Total liabilities, equity capital, and losses deferred
pursuant to 12 U.S.C. 1823 (j) (sum of items 21 and
28.c) 71,502
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement
below that best describes The most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1998 2
6
<PAGE>
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
-----------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)____
-------------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
------------------
BERGEN BRUNSWIG CORPORATION
(Exact name of Obligor as specified in its charter)
New Jersey
(State or other jurisdiction of incorporation or organization)
22-1444512
(I.R.S. Employer Identification No.)
4000 Metropolitan Drive
Orange, California
(Address of principal executive offices)
92668-3510
(Zip Code)
--------------------------------
Subordinated Debt Securities
(Title of Indenture securities)
1
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 4. Trusteeships under Other Indentures
(a) Title of securities outstanding under each such indenture.
$8,425,000 6-7/8% Exchangeable Subordinated Debentures due 2011
issued under Indenture dated as of July 15, 1986. $100,000,000
7-1/4% Senior Notes due 6/1/2005 and $150,000,000 7-3/8% Senior
Notes due 2003 issued under Indenture dated as of December 1, 1992.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see
Exhibit 1 to Form T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-41329,
which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
2
<PAGE>
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National Association, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of San
Francisco, and State of California, on the 11th day of May 1999.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ James Nagy
-------------------------------
James Nagy
Assistant Vice President
4
<PAGE>
Exhibit 7. Report of Condition of the Trustee.
================================================================================
Consolidated Report of Condition of Chase Manhattan Bank and Trust Company, N.A.
--------------------------------------------
(Legal Title)
Located at 1800 Century Park East, Ste. 400 Los Angeles, CA 94111
---------------------------------------------------------------------
(Street) (City) (State) (Zip)
as of close of business on March 31, 1999
--------------------
================================================================================
================================================================================
ASSETS DOLLAR AMOUNTS IN THOUSANDS
1. Cash and balances due from
a. Noninterest-bearing balances and currency and
coin (1,2) 2,305
b. Interest bearing balances (3) 0
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A) 0
b. Available-for-sale securities (from Schedule
RC-B, column D) 1,102
3. Federal Funds sold (4) and securities purchased
agreements to resell 64,250
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C) 162
b. LESS: Allowance for loan and lease losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and
4.c) 162
5. Trading assets 0
6. Premises and fixed assets (including capitalized
leases) 280
7. Other real estate owned (from Schedule RC-M) 0
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 0
9. Customers liability to this bank on acceptances
outstanding 0
10. Intangible assets (from Schedule RC-M) 1,292
11. Other assets (from Schedule RC-F) 2,111
12a. TOTAL ASSETS 71,502
(1) includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b
(3) includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a "Loans and
leases, net of unearned income" and in Schedule RC-C, part 1.
5
<PAGE>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E) 41,121
(1) Noninterest-bearing 6,008
(2) Interest-bearing 35,113
b. In foreign offices, Edge and Agreement
subsidiaries, and IBF'
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased (2) and securities sold under
agreements to repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
a. With a remaining maturity of one year or less 0
b. With a remaining maturity of more than one year
through three years 0
c. With a remaining maturity of more than three
years 0
17. Not applicable
18. Bank's liability on acceptances executed and
outstanding 0
19. Subordinated notes and Debentures (3) 0
20. Other liabilities (from Schedule RC-G) 5,058
21. Total liabilities (sum of items 13 through 20) 46,179
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock-- 600
25. Surplus (exclude all surplus related to preferred
stock) 12,590
26. a. Undivided profits and capital reserves 12,133
b. Net unrealized holding gains (losses) on
available-for-sale securities 0
27. Cumulative foreign currency translation adjustments
28. a. Total equity capital (sum of items 23 through 27) 25,323
29. Total liabilities, equity capital, and losses deferred
pursuant to 12 U.S.C. 1823 (j) (sum of items 21 and
28.c) 71,502
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement
below that best describes The most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1998 2
6
<PAGE>
EXHIBIT 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
-----------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)____
-------------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
------------------
BERGEN BRUNSWIG CORPORATION
(Exact name of Obligor as specified in its charter)
New Jersey
(State or other jurisdiction of incorporation or organization)
22-1444512
(I.R.S. Employer Identification No.)
4000 Metropolitan Drive
Orange, California
(Address of principal executive offices)
92668-3510
(Zip Code)
--------------------------------
Bergen Capital Trust I
(Title of Indenture securities)
1
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 4. Trusteeships under Other Indentures
(a) Title of securities outstanding under each such indenture.
$8,425,000 6-7/8% Exchangeable Subordinated Debentures due 2011
issued under Indenture dated as of July 15, 1986. $100,000,000
7-1/4% Senior Notes due 6/1/2005 and $150,000,000 7-3/8% Senior
Notes due 2003 issued under Indenture dated as of December 1, 1992.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see
Exhibit 1 to Form T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-41329,
which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
2
<PAGE>
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National Association, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of San
Francisco, and State of California, on the 11th day of May 1999.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ James Nagy
-------------------------------
James Nagy
Assistant Vice President
4
<PAGE>
Exhibit 7. Report of Condition of the Trustee.
================================================================================
Consolidated Report of Condition of Chase Manhattan Bank and Trust Company, N.A.
--------------------------------------------
(Legal Title)
Located at 1800 Century Park East, Ste. 400 Los Angeles, CA 94111
---------------------------------------------------------------------
(Street) (City) (State) (Zip)
as of close of business on March 31, 1999
--------------------
================================================================================
================================================================================
ASSETS DOLLAR AMOUNTS IN THOUSANDS
1. Cash and balances due from
a. Noninterest-bearing balances and currency and
coin (1,2) 2,305
b. Interest bearing balances (3) 0
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A) 0
b. Available-for-sale securities (from Schedule
RC-B, column D) 1,102
3. Federal Funds sold (4) and securities purchased
agreements to resell 64,250
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C) 162
b. LESS: Allowance for loan and lease losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and
4.c) 162
5. Trading assets 0
6. Premises and fixed assets (including capitalized
leases) 280
7. Other real estate owned (from Schedule RC-M) 0
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 0
9. Customers liability to this bank on acceptances
outstanding 0
10. Intangible assets (from Schedule RC-M) 1,292
11. Other assets (from Schedule RC-F) 2,111
12a. TOTAL ASSETS 71,502
(1) includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b
(3) includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a "Loans and
leases, net of unearned income" and in Schedule RC-C, part 1.
5
<PAGE>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E) 41,121
(1) Noninterest-bearing 6,008
(2) Interest-bearing 35,113
b. In foreign offices, Edge and Agreement
subsidiaries, and IBF'
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased (2) and securities sold under
agreements to repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
a. With a remaining maturity of one year or less 0
b. With a remaining maturity of more than one year
through three years 0
c. With a remaining maturity of more than three
years 0
17. Not applicable
18. Bank's liability on acceptances executed and
outstanding 0
19. Subordinated notes and Debentures (3) 0
20. Other liabilities (from Schedule RC-G) 5,058
21. Total liabilities (sum of items 13 through 20) 46,179
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock-- 600
25. Surplus (exclude all surplus related to preferred
stock) 12,590
26. a. Undivided profits and capital reserves 12,133
b. Net unrealized holding gains (losses) on
available-for-sale securities 0
27. Cumulative foreign currency translation adjustments
28. a. Total equity capital (sum of items 23 through 27) 25,323
29. Total liabilities, equity capital, and losses deferred
pursuant to 12 U.S.C. 1823 (j) (sum of items 21 and
28.c) 71,502
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement
below that best describes The most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1998 2
6
<PAGE>
EXHIBIT 25.4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
-----------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)____
-------------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
------------------
BERGEN BRUNSWIG CORPORATION
(Exact name of Obligor as specified in its charter)
New Jersey
(State or other jurisdiction of incorporation or organization)
22-1444512
(I.R.S. Employer Identification No.)
4000 Metropolitan Drive
Orange, California
(Address of principal executive offices)
92668-3510
(Zip Code)
--------------------------------
Bergen Capital Trust II
(Title of Indenture securities)
1
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 4. Trusteeships under Other Indentures
(a) Title of securities outstanding under each such indenture.
$8,425,000 6-7/8% Exchangeable Subordinated Debentures due 2011
issued under Indenture dated as of July 15, 1986. $100,000,000
7-1/4% Senior Notes due 6/1/2005 and $150,000,000 7-3/8% Senior
Notes due 2003 issued under Indenture dated as of December 1, 1992.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see
Exhibit 1 to Form T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-41329,
which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
2
<PAGE>
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National Association, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of San
Francisco, and State of California, on the 11th day of May 1999.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ James Nagy
-------------------------------
James Nagy
Assistant Vice President
4
<PAGE>
Exhibit 7. Report of Condition of the Trustee.
================================================================================
Consolidated Report of Condition of Chase Manhattan Bank and Trust Company, N.A.
--------------------------------------------
(Legal Title)
Located at 1800 Century Park East, Ste. 400 Los Angeles, CA 94111
---------------------------------------------------------------------
(Street) (City) (State) (Zip)
as of close of business on March 31, 1999
--------------------
================================================================================
================================================================================
ASSETS DOLLAR AMOUNTS IN THOUSANDS
1. Cash and balances due from
a. Noninterest-bearing balances and currency and
coin (1,2) 2,305
b. Interest bearing balances (3) 0
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A) 0
b. Available-for-sale securities (from Schedule
RC-B, column D) 1,102
3. Federal Funds sold (4) and securities purchased
agreements to resell 64,250
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C) 162
b. LESS: Allowance for loan and lease losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and
4.c) 162
5. Trading assets 0
6. Premises and fixed assets (including capitalized
leases) 280
7. Other real estate owned (from Schedule RC-M) 0
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 0
9. Customers liability to this bank on acceptances
outstanding 0
10. Intangible assets (from Schedule RC-M) 1,292
11. Other assets (from Schedule RC-F) 2,111
12a. TOTAL ASSETS 71,502
(1) includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b
(3) includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a "Loans and
leases, net of unearned income" and in Schedule RC-C, part 1.
5
<PAGE>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E) 41,121
(1) Noninterest-bearing 6,008
(2) Interest-bearing 35,113
b. In foreign offices, Edge and Agreement
subsidiaries, and IBF'
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased (2) and securities sold under
agreements to repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
a. With a remaining maturity of one year or less 0
b. With a remaining maturity of more than one year
through three years 0
c. With a remaining maturity of more than three
years 0
17. Not applicable
18. Bank's liability on acceptances executed and
outstanding 0
19. Subordinated notes and Debentures (3) 0
20. Other liabilities (from Schedule RC-G) 5,058
21. Total liabilities (sum of items 13 through 20) 46,179
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock-- 600
25. Surplus (exclude all surplus related to preferred
stock) 12,590
26. a. Undivided profits and capital reserves 12,133
b. Net unrealized holding gains (losses) on
available-for-sale securities 0
27. Cumulative foreign currency translation adjustments
28. a. Total equity capital (sum of items 23 through 27) 25,323
29. Total liabilities, equity capital, and losses deferred
pursuant to 12 U.S.C. 1823 (j) (sum of items 21 and
28.c) 71,502
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement
below that best describes The most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1998 2
6
<PAGE>
EXHIBIT 25.5
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
-----------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)____
-------------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
------------------
BERGEN BRUNSWIG CORPORATION
(Exact name of Obligor as specified in its charter)
New Jersey
(State or other jurisdiction of incorporation or organization)
22-1444512
(I.R.S. Employer Identification No.)
4000 Metropolitan Drive
Orange, California
(Address of principal executive offices)
92668-3510
(Zip Code)
--------------------------------
Bergen Capital Trust III
(Title of Indenture securities)
1
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 4. Trusteeships under Other Indentures
(a) Title of securities outstanding under each such indenture.
$8,425,000 6-7/8% Exchangeable Subordinated Debentures due 2011
issued under Indenture dated as of July 15, 1986. $100,000,000
7-1/4% Senior Notes due 6/1/2005 and $150,000,000 7-3/8% Senior
Notes due 2003 issued under Indenture dated as of December 1, 1992.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see
Exhibit 1 to Form T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-41329,
which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
2
<PAGE>
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National Association, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of San
Francisco, and State of California, on the 11th day of May 1999.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ James Nagy
-------------------------------
James Nagy
Assistant Vice President
4
<PAGE>
Exhibit 7. Report of Condition of the Trustee.
================================================================================
Consolidated Report of Condition of Chase Manhattan Bank and Trust Company, N.A.
--------------------------------------------
(Legal Title)
Located at 1800 Century Park East, Ste. 400 Los Angeles, CA 94111
---------------------------------------------------------------------
(Street) (City) (State) (Zip)
as of close of business on March 31, 1999
--------------------
================================================================================
================================================================================
ASSETS DOLLAR AMOUNTS IN THOUSANDS
1. Cash and balances due from
a. Noninterest-bearing balances and currency and
coin (1,2) 2,305
b. Interest bearing balances (3) 0
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A) 0
b. Available-for-sale securities (from Schedule
RC-B, column D) 1,102
3. Federal Funds sold (4) and securities purchased
agreements to resell 64,250
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C) 162
b. LESS: Allowance for loan and lease losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and
4.c) 162
5. Trading assets 0
6. Premises and fixed assets (including capitalized
leases) 280
7. Other real estate owned (from Schedule RC-M) 0
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 0
9. Customers liability to this bank on acceptances
outstanding 0
10. Intangible assets (from Schedule RC-M) 1,292
11. Other assets (from Schedule RC-F) 2,111
12a. TOTAL ASSETS 71,502
(1) includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b
(3) includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a "Loans and
leases, net of unearned income" and in Schedule RC-C, part 1.
5
<PAGE>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E) 41,121
(1) Noninterest-bearing 6,008
(2) Interest-bearing 35,113
b. In foreign offices, Edge and Agreement
subsidiaries, and IBF'
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased (2) and securities sold under
agreements to repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
a. With a remaining maturity of one year or less 0
b. With a remaining maturity of more than one year
through three years 0
c. With a remaining maturity of more than three
years 0
17. Not applicable
18. Bank's liability on acceptances executed and
outstanding 0
19. Subordinated notes and Debentures (3) 0
20. Other liabilities (from Schedule RC-G) 5,058
21. Total liabilities (sum of items 13 through 20) 46,179
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock-- 600
25. Surplus (exclude all surplus related to preferred
stock) 12,590
26. a. Undivided profits and capital reserves 12,133
b. Net unrealized holding gains (losses) on
available-for-sale securities 0
27. Cumulative foreign currency translation adjustments
28. a. Total equity capital (sum of items 23 through 27) 25,323
29. Total liabilities, equity capital, and losses deferred
pursuant to 12 U.S.C. 1823 (j) (sum of items 21 and
28.c) 71,502
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement
below that best describes The most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1998 2
6
<PAGE>
EXHIBIT 25.6
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
-----------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)____
-------------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
------------------
BERGEN BRUNSWIG CORPORATION
(Exact name of Obligor as specified in its charter)
New Jersey
(State or other jurisdiction of incorporation or organization)
22-1444512
(I.R.S. Employer Identification No.)
4000 Metropolitan Drive
Orange, California
(Address of principal executive offices)
92668-3510
(Zip Code)
--------------------------------
Preferred Securities Guarantee-Bergen Capital Trust I
(Title of Indenture securities)
1
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 4. Trusteeships under Other Indentures
(a) Title of securities outstanding under each such indenture.
$8,425,000 6-7/8% Exchangeable Subordinated Debentures due 2011
issued under Indenture dated as of July 15, 1986. $100,000,000
7-1/4% Senior Notes due 6/1/2005 and $150,000,000 7-3/8% Senior
Notes due 2003 issued under Indenture dated as of December 1, 1992.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see
Exhibit 1 to Form T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-41329,
which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
2
<PAGE>
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National Association, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of San
Francisco, and State of California, on the 11th day of May 1999.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ James Nagy
-------------------------------
James Nagy
Assistant Vice President
4
<PAGE>
Exhibit 7. Report of Condition of the Trustee.
================================================================================
Consolidated Report of Condition of Chase Manhattan Bank and Trust Company, N.A.
--------------------------------------------
(Legal Title)
Located at 1800 Century Park East, Ste. 400 Los Angeles, CA 94111
---------------------------------------------------------------------
(Street) (City) (State) (Zip)
as of close of business on March 31, 1999
--------------------
================================================================================
================================================================================
ASSETS DOLLAR AMOUNTS IN THOUSANDS
1. Cash and balances due from
a. Noninterest-bearing balances and currency and
coin (1,2) 2,305
b. Interest bearing balances (3) 0
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A) 0
b. Available-for-sale securities (from Schedule
RC-B, column D) 1,102
3. Federal Funds sold (4) and securities purchased
agreements to resell 64,250
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C) 162
b. LESS: Allowance for loan and lease losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and
4.c) 162
5. Trading assets 0
6. Premises and fixed assets (including capitalized
leases) 280
7. Other real estate owned (from Schedule RC-M) 0
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 0
9. Customers liability to this bank on acceptances
outstanding 0
10. Intangible assets (from Schedule RC-M) 1,292
11. Other assets (from Schedule RC-F) 2,111
12a. TOTAL ASSETS 71,502
(1) includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b
(3) includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a "Loans and
leases, net of unearned income" and in Schedule RC-C, part 1.
5
<PAGE>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E) 41,121
(1) Noninterest-bearing 6,008
(2) Interest-bearing 35,113
b. In foreign offices, Edge and Agreement
subsidiaries, and IBF'
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased (2) and securities sold under
agreements to repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
a. With a remaining maturity of one year or less 0
b. With a remaining maturity of more than one year
through three years 0
c. With a remaining maturity of more than three
years 0
17. Not applicable
18. Bank's liability on acceptances executed and
outstanding 0
19. Subordinated notes and Debentures (3) 0
20. Other liabilities (from Schedule RC-G) 5,058
21. Total liabilities (sum of items 13 through 20) 46,179
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock-- 600
25. Surplus (exclude all surplus related to preferred
stock) 12,590
26. a. Undivided profits and capital reserves 12,133
b. Net unrealized holding gains (losses) on
available-for-sale securities 0
27. Cumulative foreign currency translation adjustments
28. a. Total equity capital (sum of items 23 through 27) 25,323
29. Total liabilities, equity capital, and losses deferred
pursuant to 12 U.S.C. 1823 (j) (sum of items 21 and
28.c) 71,502
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement
below that best describes The most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1998 2
6
<PAGE>
EXHIBIT 25.7
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
-----------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)____
-------------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
------------------
BERGEN BRUNSWIG CORPORATION
(Exact name of Obligor as specified in its charter)
New Jersey
(State or other jurisdiction of incorporation or organization)
22-1444512
(I.R.S. Employer Identification No.)
4000 Metropolitan Drive
Orange, California
(Address of principal executive offices)
92668-3510
(Zip Code)
--------------------------------
Preferred Securities Guarantee-Bergen Capital Trust II
(Title of Indenture securities)
1
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 4. Trusteeships under Other Indentures
(a) Title of securities outstanding under each such indenture.
$8,425,000 6-7/8% Exchangeable Subordinated Debentures due 2011
issued under Indenture dated as of July 15, 1986. $100,000,000
7-1/4% Senior Notes due 6/1/2005 and $150,000,000 7-3/8% Senior
Notes due 2003 issued under Indenture dated as of December 1, 1992.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see
Exhibit 1 to Form T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-41329,
which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
2
<PAGE>
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National Association, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of San
Francisco, and State of California, on the 11th day of May 1999.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ James Nagy
-------------------------------
James Nagy
Assistant Vice President
4
<PAGE>
Exhibit 7. Report of Condition of the Trustee.
================================================================================
Consolidated Report of Condition of Chase Manhattan Bank and Trust Company, N.A.
--------------------------------------------
(Legal Title)
Located at 1800 Century Park East, Ste. 400 Los Angeles, CA 94111
---------------------------------------------------------------------
(Street) (City) (State) (Zip)
as of close of business on March 31, 1999
--------------------
================================================================================
================================================================================
ASSETS DOLLAR AMOUNTS IN THOUSANDS
1. Cash and balances due from
a. Noninterest-bearing balances and currency and
coin (1,2) 2,305
b. Interest bearing balances (3) 0
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A) 0
b. Available-for-sale securities (from Schedule
RC-B, column D) 1,102
3. Federal Funds sold (4) and securities purchased
agreements to resell 64,250
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C) 162
b. LESS: Allowance for loan and lease losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and
4.c) 162
5. Trading assets 0
6. Premises and fixed assets (including capitalized
leases) 280
7. Other real estate owned (from Schedule RC-M) 0
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 0
9. Customers liability to this bank on acceptances
outstanding 0
10. Intangible assets (from Schedule RC-M) 1,292
11. Other assets (from Schedule RC-F) 2,111
12a. TOTAL ASSETS 71,502
(1) includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b
(3) includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a "Loans and
leases, net of unearned income" and in Schedule RC-C, part 1.
5
<PAGE>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E) 41,121
(1) Noninterest-bearing 6,008
(2) Interest-bearing 35,113
b. In foreign offices, Edge and Agreement
subsidiaries, and IBF'
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased (2) and securities sold under
agreements to repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
a. With a remaining maturity of one year or less 0
b. With a remaining maturity of more than one year
through three years 0
c. With a remaining maturity of more than three
years 0
17. Not applicable
18. Bank's liability on acceptances executed and
outstanding 0
19. Subordinated notes and Debentures (3) 0
20. Other liabilities (from Schedule RC-G) 5,058
21. Total liabilities (sum of items 13 through 20) 46,179
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock-- 600
25. Surplus (exclude all surplus related to preferred
stock) 12,590
26. a. Undivided profits and capital reserves 12,133
b. Net unrealized holding gains (losses) on
available-for-sale securities 0
27. Cumulative foreign currency translation adjustments
28. a. Total equity capital (sum of items 23 through 27) 25,323
29. Total liabilities, equity capital, and losses deferred
pursuant to 12 U.S.C. 1823 (j) (sum of items 21 and
28.c) 71,502
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement
below that best describes The most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1998 2
6
<PAGE>
EXHIBIT 25.8
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
-----------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)____
-------------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
------------------
BERGEN BRUNSWIG CORPORATION
(Exact name of Obligor as specified in its charter)
New Jersey
(State or other jurisdiction of incorporation or organization)
22-1444512
(I.R.S. Employer Identification No.)
4000 Metropolitan Drive
Orange, California
(Address of principal executive offices)
92668-3510
(Zip Code)
--------------------------------
Preferred Securities Guarantee-Bergen Capital Trust III
(Title of Indenture securities)
1
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 4. Trusteeships under Other Indentures
(a) Title of securities outstanding under each such indenture.
$8,425,000 6-7/8% Exchangeable Subordinated Debentures due 2011
issued under Indenture dated as of July 15, 1986. $100,000,000
7-1/4% Senior Notes due 6/1/2005 and $150,000,000 7-3/8% Senior
Notes due 2003 issued under Indenture dated as of December 1, 1992.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see
Exhibit 1 to Form T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-41329,
which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
2
<PAGE>
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National Association, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of San
Francisco, and State of California, on the 11th day of May 1999.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ James Nagy
-------------------------------
James Nagy
Assistant Vice President
4
<PAGE>
Exhibit 7. Report of Condition of the Trustee.
================================================================================
Consolidated Report of Condition of Chase Manhattan Bank and Trust Company, N.A.
--------------------------------------------
(Legal Title)
Located at 1800 Century Park East, Ste. 400 Los Angeles, CA 94111
---------------------------------------------------------------------
(Street) (City) (State) (Zip)
as of close of business on March 31, 1999
--------------------
================================================================================
================================================================================
ASSETS DOLLAR AMOUNTS IN THOUSANDS
1. Cash and balances due from
a. Noninterest-bearing balances and currency and
coin (1,2) 2,305
b. Interest bearing balances (3) 0
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A) 0
b. Available-for-sale securities (from Schedule
RC-B, column D) 1,102
3. Federal Funds sold (4) and securities purchased
agreements to resell 64,250
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C) 162
b. LESS: Allowance for loan and lease losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and
4.c) 162
5. Trading assets 0
6. Premises and fixed assets (including capitalized
leases) 280
7. Other real estate owned (from Schedule RC-M) 0
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 0
9. Customers liability to this bank on acceptances
outstanding 0
10. Intangible assets (from Schedule RC-M) 1,292
11. Other assets (from Schedule RC-F) 2,111
12a. TOTAL ASSETS 71,502
(1) includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b
(3) includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a "Loans and
leases, net of unearned income" and in Schedule RC-C, part 1.
5
<PAGE>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E) 41,121
(1) Noninterest-bearing 6,008
(2) Interest-bearing 35,113
b. In foreign offices, Edge and Agreement
subsidiaries, and IBF'
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased (2) and securities sold under
agreements to repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
a. With a remaining maturity of one year or less 0
b. With a remaining maturity of more than one year
through three years 0
c. With a remaining maturity of more than three
years 0
17. Not applicable
18. Bank's liability on acceptances executed and
outstanding 0
19. Subordinated notes and Debentures (3) 0
20. Other liabilities (from Schedule RC-G) 5,058
21. Total liabilities (sum of items 13 through 20) 46,179
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock-- 600
25. Surplus (exclude all surplus related to preferred
stock) 12,590
26. a. Undivided profits and capital reserves 12,133
b. Net unrealized holding gains (losses) on
available-for-sale securities 0
27. Cumulative foreign currency translation adjustments
28. a. Total equity capital (sum of items 23 through 27) 25,323
29. Total liabilities, equity capital, and losses deferred
pursuant to 12 U.S.C. 1823 (j) (sum of items 21 and
28.c) 71,502
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement
below that best describes The most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1998 2
6
