AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 18, 1995
REGISTRATION NO. 33-60161
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BRUNO'S, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
ALABAMA 63-0411801
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
</TABLE>
BRUNO'S, INC.
800 LAKESHORE PARKWAY
BIRMINGHAM, ALABAMA 35211
(205) 940-9400
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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RONALD G. BRUNO
BRUNO'S, INC.
800 LAKESHORE PARKWAY
BIRMINGHAM, ALABAMA 35211
(205) 940-9400
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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WITH COPIES TO:
Richard Cohn
Sirote & Permutt
2222 Arlington Avenue South
Birmingham, Alabama 35205
(205) 933-7111
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, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / __________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / __________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION, DATED JULY 18, 1995
PROSPECTUS
BRUNO'S, INC.
DEBT SECURITIES
COMMON STOCK
WARRANTS
Bruno's, Inc. (the "Company") intends to issue from time to time in one or
more series its (i) unsecured debt securities, which may either be senior (the
"Senior Debt Securities") or subordinated (the "Subordinated Debt Securities";
the Senior Debt Securities and the Subordinated Debt Securities being referred
to collectively as the "Debt Securities"), (ii) warrants to purchase the Debt
Securities (the "Debt Warrants"), (iii) shares of common stock, par value $.01
per share (the "Common Stock"), and (iv) warrants to purchase shares of Common
Stock ("Common Stock Warrants"; the Debt Warrants and Common Stock Warrants
being referred to herein collectively as the "Securities Warrants") having an
aggregate initial public offering price not to exceed $750,000,000 or the
equivalent thereof in one or more foreign currencies or composite currencies,
including ECU, on terms to be determined at the time of sale. The Debt
Securities, Common Stock and Securities Warrants offered hereby (collectively,
the "Offered Securities") may be offered, separately or as units with other
Offered Securities, in separate series in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in a supplement to this
Prospectus (a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered, such as, where applicable (i) in the case of Debt
Securities, the specific designation, aggregate principal amount, currency,
denomination, maturity, priority, interest rate (which may be variable or
fixed), terms of subordination, if any, time of payment of interest, terms for
optional redemption or repayment or for sinking fund payments, terms for
required offers to repurchase Debt Securities, terms for conversion into or
exchange for other Offered Securities, the designation of the Trustee acting
under the applicable Indenture, covenants and the initial public offering price;
(ii) in the case of Common Stock, the number of shares and the terms of the
offering and sale thereof; (iii) in the case of Securities Warrants, the
duration, offering price, exercise price and detachability thereof; and (iv) in
the case of all Offered Securities, whether such Offered Security will be
offered separately or as a unit with other Offered Securities, will be set forth
in the accompanying Prospectus Supplement. The Prospectus Supplement will also
contain information, where applicable, about certain United States federal
income tax considerations relating to any listing on a securities exchange and
any other special terms of the Offered Securities covered by the Prospectus
Supplement.
The Offered Securities may be sold directly to purchasers or through
underwriters, dealers or agents. If any underwriters, dealers or agents are
involved in the sale of any Offered Securities, their names and any applicable
fee, commission or discount arrangements will be set forth in the Prospectus
Supplement. The principal amount or number of shares of Offered Securities, the
purchase price thereof and the net proceeds to the Company from sales of Offered
Securities will be set forth in the Prospectus Supplement. The net proceeds to
the Company of the sale of Offered Securities will be the purchase price of such
Offered Securities less attributable issuance expenses, including underwriters',
dealers' or agents' compensation arrangements. See "Plan of Distribution" for
indemnification arrangements for underwriters, dealers and agents.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is , 1995.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549 or at its regional offices located at 7 World Trade Center, Suite
1300, New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Offered Securities. This Prospectus
does not contain all of the information set forth in the Registration Statement
and the exhibits and schedules thereto. For further information with respect to
the Company and the Offered Securities, reference is hereby made to the
Registration Statement and the exhibits and schedules filed therewith, which may
be obtained from the principal office of the Commission in Washington, D.C.,
upon the payment of fees prescribed by the Commission.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference: (i) Annual Report on Form 10-K for the fiscal
year ended July 2, 1994; (ii) Quarterly Reports on Form 10-Q for the fiscal
quarters ended September 24, 1994, December 31, 1994 and April 8, 1995; (iii)
Current Report on Form 8-K dated April 27, 1995, as amended by the Current
Report on Form 8-K/A dated May 30, 1995; (iv) Current Report on Form 8-K dated
May 18,
1995; (v) Current Report on Form 8-K dated June 12, 1995, as amended by the
Current Report on
Form 8-K/A dated July 17, 1995 and; (vi) Current Report on Form 8-K dated June
22, 1995.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and before the termination of the offering made hereby will be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such reports and documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein will be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document, which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide, without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, upon written or oral
request of such person, a copy of any or all of the documents incorporated
herein by reference (other than exhibits, unless such exhibits specifically are
incorporated by reference into such documents or this Prospectus). Requests for
such documents should be submitted in writing, addressed to the Assistant
Secretary, Bruno's, Inc., 800 Lakeshore Parkway, Birmingham, Alabama 35211.
2
<PAGE>
THE COMPANY
GENERAL
The information set forth below is as of July 1, 1995 unless otherwise
indicated. The Company is a leading supermarket operator in the Southeastern
United States and is the largest supermarket operator in the state of Alabama.
The Company operates 252 supermarkets of which 124 are located in Alabama, 86 in
Georgia, 19 in Florida, 11 in Tennessee, 7 in Mississippi and 5 in South
Carolina. Seventy-nine of the store sites are owned directly by the Company or
through joint ventures. The Company also operates two primary distribution
facilities, one in Birmingham, Alabama and one in Vidalia, Georgia, which total
2.1 million square feet. The Company operates stores under three principal
formats, each addressed to a different market segment: every day low price
("EDLP") stores aimed at the value conscious shopper, upscale stores targeted to
customers seeking service and selection, and neighborhood stores stressing
convenience in a community setting. Under the EDLP and upscale formats, the
Company also operates 16 Supercenter stores that offer an expanded mix of higher
margin perishables and general merchandise products as well as various one-stop
shopping conveniences, such as in-store pharmacies, banks, photo development
services and optical centers. Through its 60 years of operations, the Company
has developed a valuable and strategically located store base, strong name
recognition, customer loyalty and a reputation as a quality and service leader
among supermarket competitors. The Company believes that these factors have
enabled it to establish a leading market share in most of its principal markets,
including market shares of approximately 50% in Birmingham and 30% throughout
Alabama, its leading market.
STORE FORMATS
EVERY DAY LOW PRICE ("EDLP") FORMATS. The Company's two EDLP formats, Food
World and FoodMax, on a combined basis account for 125 of the Company's 252
stores and, for the 40 weeks ended April 8, 1995, contributed sales of $1.3
billion, or 57% of total sales. Both Food World (82 stores) and FoodMax (43
stores) are widely regarded as low price leaders, and both formats are
recognized for the breadth and high quality of their product offerings. Eight of
the EDLP stores are Supercenters. EDLP stores generated average weekly sales of
$248,000 for the 40 weeks ended April 8, 1995.
Food World. Food World stores are typically high volume stores designed
to appeal to a broad spectrum of customers. With a primary emphasis on
value, these stores offer every day low pricing along with an extensive
variety of name-brand merchandise and specialty departments. Food World
stores are promoted through television, newspaper, and radio advertising.
The Company's Food World stores average approximately 44,000 total square
feet. Since June 30, 1990, the number of Food World stores has increased
from 74 to 82 stores.
FoodMax. FoodMax stores are large stores with an open design,
warehouse-style ceilings, and expanded perishables departments. These stores
emphasize low prices and an extensive product selection while achieving low
overhead through reduced staffing. These stores enhance their EDLP image
through unadvertised in-store specials. The Company's FoodMax stores average
approximately 51,000 total square feet. Since June 30, 1990, the number of
FoodMax stores has increased from 28 to 43 stores.
UPSCALE FORMATS. The Company's upscale formats, which operate primarily
under the Bruno's name, account for 39 of the Company's 252 stores and, for the
40 weeks ended April 8, 1995, contributed sales of $456 million, or 21% of total
sales. Bruno's stores are widely regarded as quality, service, and perishables
leaders in the markets the Company serves, and generally have a substantial
breadth and depth of product offerings. These stores typically contain expanded
produce, bakery, delicatessen, and gourmet foods not generally found in
conventional supermarkets, a variety of health and beauty care products normally
found in large drug stores, and a wide range of general merchandise items.
Bruno's stores are generally located in suburban markets. Eight of the upscale
stores are
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<PAGE>
Supercenters. The upscale stores average approximately 51,000 total square feet.
Since June 30, 1990, the number of upscale stores has increased from 18 to 39
stores. Upscale stores generated average weekly sales of $305,000 for the 40
weeks ended April 8, 1995.
NEIGHBORHOOD FORMATS. The Company has two principal neighborhood formats,
Piggly Wiggly and Food Fair. The neighborhood format, on a combined basis,
accounts for 88 of the Company's 252 stores, and, for the 40 weeks ended April
8, 1995, contributed sales of $477 million, or 22% of total sales. Piggly Wiggly
(54 stores) and Food Fair (31 stores) are generally smaller than the Company's
other supermarkets and emphasize friendly service and promotional pricing. For
its neighborhood stores, which are generally located in small to medium-sized
towns and suburban neighborhoods, the Company advertises primarily through
direct mail. Neighborhood stores generated average weekly sales of $131,000 for
the 40 weeks ended April 8, 1995.
Piggly Wiggly. Piggly Wiggly stores are located in medium to small towns
in central and southern Georgia. Piggly Wiggly stores are promoted primarily
through weekly advertised specials. Piggly Wiggly stores average
approximately 30,000 total square feet. Since June 30, 1990, the number of
Piggly Wiggly stores has decreased from 76 to 54 stores.
Food Fair. Food Fair stores, like Piggly Wiggly, are designed to operate
with lower overhead and competitive pricing in suburban neighborhoods and
towns in Alabama that will not support the volume necessary for a larger
supermarket. Food Fair stores average approximately 29,000 total square
feet. Since June 30, 1990, the number of Food Fair stores has increased from
28 to 31 stores.
The Company has approximately 25,600 employees in its stores, warehousing,
and business offices.
The principal executive offices of the Company are located at 800 Lakeshore
Parkway, Birmingham, Alabama 35211, and its telephone number is (205) 940-9400.
THE MERGER
The statements made under this heading relating to the Merger (as defined
below) are summaries of the agreements described therein, do not purport to be
complete and are qualified in their entirety by reference to such agreements,
which are incorporated herein by reference. See "Available Information."
Merger Agreement. The Company and Crimson Acquisition Corp. ("Crimson"), an
Alabama corporation and as of the date hereof, a wholly owned subsidiary of
Crimson Associates, L.P. ("Crimson Associates"), which is a partnership
organized by Kohlberg Kravis Roberts & Co. ("KKR"), entered into an Agreement
and Plan of Merger, dated as of April 20, 1995, and amended as of May 18, 1995
(as amended, the "Merger Agreement"), pursuant to which Crimson will be merged
with and into the Company ("the Merger"), with the Company continuing as the
surviving corporation. Upon consummation of the Merger, each share of the
Company's Common Stock outstanding immediately prior to the time the Merger
becomes effective (the "Effective Time of the Merger") will be converted at the
election of the holder thereof into either (i) the right to receive $12.00 in
cash from the Company following the Merger or (ii) the right to retain that
share of Common Stock. The Merger contemplates that approximately 94.7% of the
presently issued and outstanding shares of the Company's Common Stock will be
converted into cash, and that approximately 5.3% of the presently issued and
outstanding shares will be retained by shareholders. Because the Company's
existing shareholders will retain 4,173,682 shares of Common Stock, the right to
receive $12.00 in cash or to retain Common Stock will be subject to proration.
Such number of retained shares will represent approximately 16.67% of the Common
Stock expected to be outstanding after the Merger.
4
<PAGE>
As a result of the Merger, Crimson Associates will hold 20,833,333 shares,
or approximately 83.33%, of the Common Stock expected to be outstanding after
the Merger, and 10,000,000 warrants (the "Warrants") to purchase up to an
additional 10,000,000 shares of Common Stock in the aggregate at an exercise
price of $12.00 per share, subject to certain anti-dilution adjustments. Each
Warrant will be exercisable in whole or in part during the ten year period
following the Effective Time of the Merger and, upon exercise, may be exchanged,
at the option of the holder, for either (i) such number of shares of Common
Stock for which the Warrant is then exercisable upon payment by the holder to
the Company of the aggregate exercise price or (ii) that number of shares of
Common Stock having a value equal to the difference between the "fair market
value" at the time of exercise of such number of shares of Common Stock for
which the Warrant is then exercisable and the exercise price. If the Warrants
were exercised in full by the payment of the aggregate cash exercise price
immediately after the Merger, Crimson Associates would hold approximately 88% of
the outstanding shares of Common Stock.
The Company will submit the Merger Agreement to its shareholders for
approval at a special meeting, which is expected to be held on August 18, 1995
(the "Special Meeting"). In addition, the Company will submit to the
shareholders for their consent (i) a proposal to increase the Company's "bonded
indebtedness" under Alabama law to finance the conversion into cash of
approximately 94.7% of the issued and outstanding shares of Common Stock upon
the consummation of the Merger, to refinance certain outstanding indebtedness of
the Company and to provide for working capital requirements and (ii) a proposal
to amend and restate the Company's Articles of Incorporation to, among other
things, reduce the authorized shares of Common Stock from 200,000,000 to
60,000,000. The affirmative vote of the holders of two-thirds of the shares of
Common Stock entitled to vote thereon is required for approval and adoption of
the Merger Agreement and the transactions contemplated thereby. The affirmative
vote of the holders of a majority of the shares of Common Stock entitled to vote
thereon is required for approval and adoption of each of the increase in bonded
indebtedness and the Amended and Restated Articles of Incorporation. Approval of
the increase in bonded indebtedness and the Amended and Restated Articles of
Incorporation will be sought at the Special Meeting only if the shareholders
approve the Merger. Pursuant to a Stockholders Agreement, dated as of April 20,
1995 (the "Stockholders Agreement"), among Crimson and the shareholders parties
thereto (the "Shareholders"), holders of approximately 24% of Common Stock have
agreed, among other things and subject to certain conditions, to vote in favor
of the Merger Agreement.
In addition to the obtaining of shareholder approval, the respective
obligations of the Company and Crimson to effect the Merger are subject to the
satisfaction, at or prior to the consummation thereof, of certain conditions,
including, but not limited to, (i) the termination or expiration of the relevant
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended ("HSR Act"), (ii) the absence of any judicial order or legal
restraint preventing the consummation of the Merger and (iii) the effectiveness
of a registration statement on Form S-4 used in connection with the Merger and
the absence of any stop order or proceeding seeking a stop order suspending such
effectiveness. On June 20, 1995, the Federal Trade Commission and the Antitrust
Division of the Department of Justice granted early termination of the waiting
period under the HSR Act with respect to the Merger. On July 17, 1995, the
registration statement on Form S-4 was declared effective by the Commission. The
obligations of Crimson to effect the Merger are further subject to (i) the
receipt, in form and substance reasonably satisfactory to Crimson, of such
licenses (including beer, wine and/or liquor licenses), permits, consents,
approvals, authorizations, qualifications and orders of governmental authorities
and other third parties as are necessary in connection with the transactions
contemplated by the Merger Agreement, (ii) the absence of any pending or
threatened governmental suit, action or proceeding (or, with respect to any
person, any suit, action or proceeding which has a reasonable likelihood of
success) challenging any of the transactions contemplated in connection with the
Merger and (iii) the receipt of proceeds of financing on terms satisfactory to
Crimson in an amount sufficient to consummate the transactions contemplated by
the Merger Agreement, including, without limitation, (a) the payment of the cash
merger consideration, (b) the refinancing of outstanding indebtedness of the
Company, (c) the
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<PAGE>
payment of transaction fees associated with the Merger and the financing thereof
and (d) the provision of working capital needs of the Company following the
Merger.
The Merger Agreement contains customary representations and warranties as
well as covenants which, among other things, provide that the Company will, and
will cause its subsidiaries to, up to the Effective Time of the Merger, act and
carry on their respective businesses in the usual, regular and ordinary course
of business consistent with past practice. In addition, the Company has agreed,
among other things and subject to certain exceptions, that it will not, and will
not permit any of its subsidiaries to, without the prior consent of Crimson, (i)
declare or pay any dividends on its capital stock (other than certain dividends
which have already been declared and paid); (ii) split or reclassify its capital
stock; (iii) acquire Common Stock; (iv) encumber its capital stock or that of
its subsidiaries; (v) acquire any new business; (vi) encumber or sell any of its
properties or assets; (vii) incur any indebtedness, except for short-term
borrowings and lease obligations; (viii) acquire any material assets or make any
capital expenditures; (ix) authorize a liquidation, merger or restructuring; (x)
except upon mutual agreement of the parties, enter into any collective
bargaining agreement; (xi) change any material accounting principle; or (xii)
settle any litigation. The Company has also agreed, subject to certain
exceptions, that neither it nor any of its subsidiaries will adopt or amend any
employee benefit plan, grant any new or modified severance or termination
arrangement, effectuate any plant closing or mass layoff, make any tax election
or settle any tax liability.
The Merger Agreement provides for termination thereof at any time prior to
the Effective Time of the Merger, whether before or after approval of the Merger
by the shareholders of the Company, (i) upon the mutual written consent of
Crimson and the Company, (ii) by Crimson or the Company, upon the taking of any
final and nonappealable action prohibiting the Merger by any federal, state or
local governmental authority, or if the Merger is not consummated on or before
October 31, 1995 and (iii) by Crimson, among other things, upon (a) the failure
to obtain Company shareholder approval, (b) the withdrawal, modification or
amendment of the Company's recommendation of the Merger and (c) the taking of
certain actions by the Company with respect to a third party transaction
proposal or the failure by the Company to take certain actions during the
pendency of such a proposal or in pursuance of the Merger Agreement.
If the Merger is consummated in accordance with the Merger Agreement, the
Company will pay KKR, on the closing date of the Merger, a fee of $15 million in
cash, and will also reimburse KKR for all of its expenses in connection with the
transactions contemplated by the Merger Agreement. If the Merger is not
consummated in accordance with the Merger Agreement, among other things and
subject
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to certain conditions, (i) the Company will reimburse KKR for all its expenses
contemplated by the Merger Agreement, up to an aggregate of $3 million, or (ii)
the Company will reimburse KKR for up to an aggregate of $12.5 million of its
expenses and will pay KKR $30 million in addition to such reimbursement if the
Merger Agreement is terminated under certain circumstances generally related to
the presence of a third party transaction proposal or the acquisition by a third
party of Common Stock.
The Company expects that the Merger will be financed by the proceeds of term
loans ($550.0 million), debt securities ($350.0 million), revolving credit loans
($5.1 million) and an equity contribution by Crimson ($250.0 million). The
proceeds of such financings will be applied to cash merger consideration ($880.1
million), repayment of historical debt ($200.0 million) and fees and expenses
($75.0 million). The fees and expenses are anticipated to consist of (i) bank
syndication and commitment fees and expenses, (ii) underwriting discounts and
commissions, (iii) fees in connection with the prepayment of historical debt and
an interest rate swap, (iv) professional, advisory and investment banking fees
and expenses and (v) miscellaneous fees and expenses, such as printing and
filing fees.
Stockholders Agreement. Pursuant to the Stockholders Agreement, holders of
approximately 24% of the Common Stock have agreed, among other things and
subject to certain conditions, to vote in favor of the Merger Agreement and to
refrain from soliciting competing transaction proposals and from taking certain
other actions. Except for certain covenants which will survive the Effective
Time of the Merger, the covenants and agreements in the Stockholders Agreement
terminate on the first to occur of (a) the Effective Time of the Merger and (b)
the date the Merger Agreement is terminated in accordance with its terms.
Stock Option Agreement. Pursuant to a Stock Option Agreement, dated as of
April 20, 1995, as amended as of May 18, 1995 (the "Option Agreement"), between
the Company and Crimson, the Company has granted to Crimson an irrevocable
option, expiring upon the first to occur of the Effective Time of the Merger and
April 30, 1996, which may be exercised by Crimson or its designee (which may be
an affiliate or a third party), in whole or in part, to purchase up to
15,541,570 newly issued shares of Common Stock (or 16.6% of the outstanding
Common Stock after giving effect to the issuance of such shares) at an exercise
price of $12.00 per share in cash (the "Exercise Price"). Any such issuance
would dilute the proportionate holdings of all of the Company's shareholders.
Such shares would be cancelled and would not be entitled to be converted into
any merger consideration in the Merger. The terms of the Option Agreement
provide, among other things, for upward adjustment of the Exercise Price in
certain circumstances. The number and kind of securities subject to the Option
Agreement and the Exercise Price are also subject to adjustments in the event of
certain changes in the number of issued and outstanding shares of Common Stock.
The Option Agreement also includes customary provisions relating to the
registration and listing of such option shares.
USE OF PROCEEDS
The Offered Securities may be offered by the Company from time to time as
determined by the Company. Unless otherwise indicated in the applicable
Prospectus Supplement, the net proceeds from the sale of the Offered Securities
will be added to the Company's funds and be used for general corporate purposes,
including development, acquisition or capital improvement of its stores and
operations. If the Merger is consummated, the Company may use a portion of the
net proceeds from one or more series of the Offered Securities to (i) pay a
portion of the $880.1 million of cash merger consideration, (ii) refinance all
or a portion of $200.0 million of indebtedness and (iii) pay all or a portion of
an estimated $75.0 million of fees and expenses related to the Merger. The
indebtedness that may be refinanced consists of $100.0 million aggregate
principal amount of 6.62% Series A Senior Notes due 2003 and $100.0 million
aggregate principal amount of 7.09% Series B Senior Notes due 2008.
7
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RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges for
the Company and its consolidated subsidiaries for the periods indicated.
<TABLE>
<CAPTION>
PRO
FORMA
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JUNE 30, JUNE 29, JUNE 27, JULY 3, JULY 2, APRIL 9, APRIL 8, APRIL 8,
1990 1991 1992 1993 1994 1994 1995 1995
(52 WEEKS) (52 WEEKS) (52 WEEKS) (53 WEEKS) (52 WEEKS) (40 WEEKS) (40 WEEKS) (40 WEEKS)
---------- ----------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges (1).. 4.59 5.08 4.09 3.20 2.91 2.77 2.03(2) 0.78(3)
</TABLE>
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(1) For purposes of computing the ratio of earnings to fixed charges, "earnings"
consist of income before income taxes and extraordinary loss on
extinguishment of debt, plus fixed charges. "Fixed charges" consist of
interest expense and one-third of rental expense (the portion deemed
representative of the interest factor).
(2) The ratio of earnings to fixed charges for the 40 weeks ended April 8, 1995
reflects a $22.2 million charge ($19.0 million of which is nonrecurring) due
to a change in accounting estimate relating to the Company's self-insurance
reserves.
(3) The pro forma calculation of earnings to fixed charges for the 40 weeks
ended April 8, 1995 assumes that the Merger was completed on July 3, 1994
and (i) the issuance by the Company on such date of $555.1 million of term
loans and revolving credit loans (assumed 9.0% average rate), (ii) the
issuance by the Company of $350 million of other debt securities (assumed
10.75% average rate) and (iii) the repayment of $100 million of 6.62% Series
A Senior Notes due 2003 and $100 million of 7.09% Series B Senior Notes due
2008. On a pro forma basis, earnings were insufficient to cover fixed
charges by $18.1 million.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
being offered (the "Offered Debt Securities"), the extent, if any, to which such
general provisions may apply to the Offered Securities and any modifications of
or additions to the general terms of the Debt Securities applicable in the case
of the Offered Debt Securities will be described in the Prospectus Supplement
relating to such Debt Securities.
The Senior Debt Securities are to be issued under an indenture to be dated
as of a date on or prior to the first issuance of Senior Debt Securities, as
supplemented from time to time (the "Senior Indenture"), between the Company and
First Trust of New York, National Association (the "Senior Debt Trustee"), and
the Subordinated Debt Securities are to be issued under an indenture to be dated
as of a date on or prior to the first issuance of Subordinated Debt Securities,
as supplemented from time to time (the "Subordinated Indenture"), between the
Company and Marine Midland Bank (the "Subordinated Debt Trustee"). The term
"Trustee" as used herein shall refer to either the Senior Debt Trustee or the
Subordinated Debt Trustee, as appropriate, for Senior Debt Securities or
Subordinated Debt Securities. The form of the Senior Indenture and the form of
the Subordinated Indenture (being referred to herein collectively as the
"Indentures" and individually as an "Indenture") are filed as exhibits to the
Registration Statement. The Indentures are subject to and governed by the Trust
Indenture Act of 1939, as amended (the "TIA"). The statements made under this
heading relating to the Debt Securities and the Indentures are summaries of the
provisions thereof, do not purport to be complete and are qualified in their
entirety by reference to the Indentures, including the definitions of certain
terms therein and in the TIA. Certain capitalized terms used below but not
defined herein have the meanings ascribed to them in the applicable Indenture.
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GENERAL
The Debt Securities will be direct, unsecured obligations of the Company.
The indebtedness represented by the Senior Debt Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the Company. The
indebtedness represented by the Subordinated Debt Securities will be
subordinated in right of payment to the prior payment in full of the Senior
Indebtedness of the Company (including the Senior Debt Securities) as described
under "Subordination" below. The Indentures provide that the Debt Securities may
be issued without limit as to aggregate principal amount, in one or more series,
in each case as established from time to time in or pursuant to authority
granted by a resolution of the Board of Directors of the Company or as
established in one or more indentures supplemental to the Indenture. All Debt
Securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the holders
of the Debt Securities of such series, for issuances of additional Debt
Securities of such series.
The Indentures provide that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
the Indentures may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee may be appointed to act with respect to
such series. In the event that two or more persons are acting as Trustee with
respect to different series of Debt Securities, each such Trustee shall be a
Trustee of a trust under the Indenture separate and apart from the trust
administered by any other Trustee, and, except as otherwise indicated herein,
any action described herein to be taken by the Trustee may be taken by each such
Trustee with respect to, and only with respect to, the one or more series of
Debt Securities for which it is Trustee under the applicable Indenture.
The accompanying Prospectus Supplement will set forth the terms of the
Offered Debt Securities, which may include the following:
(1) The title of the Offered Debt Securities and whether they are
Senior Debt Securities or Subordinated Debt Securities (which shall
distinguish the Debt Securities of such Offered Debt Securities from all
other series of Debt Securities).
(2) The aggregate principal amount of the Offered Debt Securities and
any limit on the aggregate principal amount of the Offered Debt Securities
of such series.
(3) The percentage of the principal amount at which the Offered Debt
Securities will be issued and, if other than the principal amount thereof,
the portion of the principal amount thereof payable upon declaration of
acceleration of the maturity or upon redemption thereof or the method by
which such portion shall be determined.
(4) The date or dates on which or periods during which the Offered Debt
Securities may be issued, and the date or dates, or the method by which such
date or dates will be determined, on which the principal of (and premium, if
any, on) the Offered Debt Securities are, or may be, payable (which may be
determined by the Company from time to time as set forth in the Prospectus
Supplement for such Offered Debt Securities).
(5) The rate or rates (which may be variable or fixed) at which the
Offered Debt Securities will bear interest, if any, or the method by which
such rate or rates shall be determined, the date or dates from which such
interest, if any, shall accrue or the method by which such date or dates
shall be determined, the interest payment dates on which such interest will
be payable (or the method of determination thereof) and the record dates, if
any, for the interest payable on such interest payment dates, and the
notice, if any, to holders regarding the determination of interest and the
manner of giving such notice, the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months and
any conditions or contingencies as to the payment of interest in cash or
otherwise, if any.
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(6) The place or places where the principal of (and premium, if any)
and interest on the Offered Debt Securities shall be payable; the extent to
which, or the manner in which, any interest payable on any Global Note (as
defined below) on an interest payment date will be paid, and the manner in
which any principal of, or premium, if any, on, any Global Note will be paid
and whether any Global Note will require any notation to evidence payment of
principal or interest.
(7) The obligation, if any, of the Company to redeem, repay, purchase
or offer to purchase the Offered Debt Securities pursuant to any mandatory
redemption, sinking fund or analogous provisions or upon other conditions or
at the option of the Holder thereof and the period or periods within which,
or the dates on which, the prices at which and the terms and conditions upon
which the Offered Debt Securities shall be redeemed, repaid, purchased or
offered to be purchased, in whole or in part, pursuant to such obligation.
(8) The right, if any, of the Company to redeem the Offered Debt
Securities at its option and 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 Offered Debt Securities may be redeemed, if any, in
whole or in part, at the option of the Company or otherwise.
(9) If the coin or currency in which the Offered Debt Securities shall
be issuable is U.S. dollars, the denominations of the Offered Debt
Securities if other than denominations of $1,000 and any integral multiple
thereof.
(10) Whether the Offered Debt Securities are to be issued as original
issue discount securities ("Discount Securities") and the amount of discount
at which such Offered Debt Securities may be issued and, if other than the
principal amount thereof, the portion of the principal amount of Offered
Debt Securities which shall be payable upon declaration of acceleration of
the Maturity thereof upon an Event of Default.
(11) Provisions, if any, for the defeasance or discharge of certain of
the Company's obligations with respect to the Offered Debt Securities.
(12) Whether the Offered Debt Securities are to be issued as registered
securities ("Registered Securities") or bearer securities ("Bearer
Securities") or both, and, if Bearer Securities are issued, whether any
interest coupons appertaining thereto ("Coupons") will be attached thereto,
whether such Bearer Securities may be exchanged for Registered Securities
and the circumstances under which, and the place or places at which, any
such exchanges, if permitted, may be made.
(13) Whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions; and, if any of the Offered Debt Securities are to be issued as
Bearer Securities, the applicable procedures and certificates relating to
the exchange of temporary Global Notes for definitive Bearer Securities.
(14) If other than U.S. dollars, the currency, currencies or currency
units (the term "currency" as used herein will include currency units,
including European Currency Units ("ECU"), in which the Offered Debt
Securities shall be denominated or in which payment of the principal of (and
premium, if any) and interest on the Offered Debt Securities may be made,
and particular provisions applicable thereto and, if applicable, the amount
of the Offered Debt Securities which entitles the holder or its proxy to one
vote for purposes of the Indenture.
(15) If the principal of (and premium, if any) or interest on the
Offered Debt Securities are to be payable, at the election of the Company or
a Holder thereof, in a currency other than that in which the Offered Debt
Securities are denominated or payable without such election, in addition to
or in lieu of the applicable provisions of the Indentures, the period or
periods within which and the terms and conditions upon which, such election
may be made and the time and the manner of determining the exchange rate or
rates between the currency or currencies in which the Offered
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Debt Securities are denominated or payable without such election and the
currency or currencies in which the Offered Debt Securities are to be paid
if such election is made.
(16) The date as of which any Offered Debt Securities shall be dated.
(17) If the amount of payments of principal of (and premium, if any) or
interest on the Offered Debt Securities may be determined with reference to
an index, including, but not limited to, an index based on a currency or
currencies other than that in which the Offered Debt Securities are
denominated or payable, or any other type of index, the manner in which such
amounts shall be determined.
(18) If the Offered Debt Securities are denominated or payable in a
foreign currency, any other terms concerning the payment of principal of
(and premium, if any) or any interest on the Offered Debt Securities
(including the currency or currencies of payment thereof).
(19) The designation of the original currency determination agent, if
any.
(20) The applicable overdue interest rate, if any.
(21) If the Offered Debt Securities do not bear interest, applicable
dates for determining record holders of Offered Debt Securities.
(22) Any addition to, or modification or deletion of, any Events of
Default, covenants or terms of the subordination provided for in the
applicable Indenture with respect to the Offered Debt Securities.
(23) If any of the Offered Debt Securities are to be issued as Bearer
Securities, (x) whether interest in respect of any portion of a temporary
Debt Security in global form payable in respect of any interest payment date
prior to the exchange of such temporary Offered Debt Security for definitive
Offered Debt Securities shall be paid to any clearing organization with
respect to the portion of such temporary Offered Debt Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received by
a clearing organization will be credited to the persons entitled to interest
payable on such interest payment date, (y) the terms upon which interests in
such temporary Offered Debt Security in global form may be exchanged for
interests in a permanent Global Note or for definitive Offered Debt
Securities and the terms upon which interests in a permanent Global Note, if
any, may be exchanged for definitive Offered Debt Securities and (z) the
cities and publications designated for the purposes of giving notices to
Holders.
(24) Whether the Offered Debt Securities shall be issued in whole or in
part in the form of one or more Global Notes and, in such case, the
depositary or any common depositary for such Global Notes; and if the
Offered Debt Securities are issuable only as Registered Securities, the
manner in which and the circumstances under which Global Notes representing
Offered Debt Securities may be exchanged for Registered Securities in
definitive form.
(25) The designation, if any, of any depositaries, trustees (other than
the applicable Trustee), paying agents, authenticating agents, security
registrars (other than the Trustee) or other agents with respect to the
Offered Debt Securities.
(26) If the Offered Debt Securities are to be issuable in definitive
form only upon receipt of certain certificates or other documents or upon
satisfaction of certain conditions, the form and terms of such certificates,
documents or conditions.
(27) Whether the Offered Debt Securities will be convertible into shares
of Common Stock and, if so, the terms and conditions, which may be in
addition to or in lieu of the provisions
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contained in the Indentures, upon which such Offered Debt Securities will be
so convertible, including the conversion price and the conversion period.
(28) The portion of the principal amount of the Offered Debt Securities
which will be payable upon declaration of acceleration of the maturity
thereof, if other than the principal amount thereof.
(29) The nature, content and dates for reports by the Company to the
holders of the Offered Debt Securities or the Trustees.
(30) Any other terms of the Offered Debt Securities not specified in the
Indenture under which such Offered Debt Securities are to be issued.
Each Indenture provides that the aggregate principal amount of Debt
Securities that may be issued thereunder is unlimited. The Debt Securities may
be issued in one or more series thereunder, in each case as authorized from time
to time by the Board of Directors of the Company, or any committee thereof or
any duly authorized officer.
In the event that Discount Securities are issued, the Federal income tax
consequences and other special considerations applicable to such Discount
Securities will be described in the Prospectus Supplement relating thereto.
The general provisions of the Indentures do not contain any provisions that
would limit the ability of the Company or its Subsidiaries to incur indebtedness
or that would afford holders of Debt Securities protection in the event of a
highly leveraged or similar transaction involving the Company or its
Subsidiaries. Reference is made to the accompanying Prospectus Supplement for
information with respect to any deletions from, modifications of or additions,
if any, to the Events of Default of the Company described below that are
applicable to the Offered Debt Securities or any covenants or other provisions
providing event risk or similar protection.
All of the Debt Securities of a series need not be issued at the same time,
and may vary as to interest rate, maturity and other provisions and unless
otherwise provided, a series may be reopened for issuance of additional Debt
Securities of such series.
The Debt Securities of certain series may be issued under the Indentures
upon the exercise of Securities Warrants issued with other Debt Securities or
upon exchange or conversion of exchangeable or convertible Debt Securities. The
specific terms of any such Securities Warrants, the specific terms of exchange
or conversion of any such Debt Securities and the specific terms of the Debt
Securities issuable upon the exercise of any such Securities Warrants or upon
any such exchange or conversion will be described in the Prospectus Supplement
relating to any Debt Securities issued with Securities Warrants or any such
exchangeable or convertible Debt Securities.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless specified in the Prospectus Supplement, the Debt Securities of any
series shall be issuable only as Registered Securities in denominations of
$1,000 and any integral multiple thereof and shall be payable only in U.S.
dollars. The Indentures also provide that Debt Securities of a series may be
issuable in global form. See "Book-Entry Debt Securities."
Unless otherwise indicated in the Prospectus Supplement, Bearer Securities
(other than in global form) will have Coupons attached.
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of like aggregate principal amount and
of like Stated Maturity and with like terms and conditions. If so specified in
the Prospectus Supplement, at the option of the Holder thereof, to the extent
permitted by law, any Bearer Security of any series which by its terms is
registrable as to
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principal and interest may be exchanged for a Registered Security of such series
of like aggregate principal amount and of a like Stated Maturity and with like
terms and conditions, upon surrender of such Bearer Security at the corporate
trust office of the applicable Trustee or at any other office or agency of the
Company designated for the purpose of making any such exchanges. Subject to
certain exceptions, any Bearer Security issued with Coupons surrendered for
exchange must be surrendered with all unmatured Coupons and any matured Coupons
in default attached thereto.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
Except as otherwise specified in the Prospectus Supplement, in no event may
Registered Securities, including Registered Securities received in exchange for
Bearer Securities, be exchanged for Bearer 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 deliver, in the name of the designated transferee, one or more
new Registered Securities of the same series of like aggregate principal amount
of such denominations as are authorized for Registered Securities of such series
and of a like Stated Maturity and with like terms and conditions. No service
charge will be made for any transfer or exchange of Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company shall not be required (i) to register, transfer or exchange Debt
Securities of any series during a period beginning at the opening of business 15
days before the day of the transmission of a notice of redemption of Debt
Securities of such series selected for redemption and ending at the close of
business on the day of such transmission, or (ii) to register, transfer or
exchange any Debt Security so selected for redemption in whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
EVENTS OF DEFAULT
Under the Indentures, "Event of Default" with respect to the Debt Securities
of any series 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, pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body): (1) default in the payment of any interest upon any Debt Security or any
payment with respect to the Coupons, if any, of such series when it becomes due
and payable, and continuance of such default for a period of 30 days; (2)
default in the payment of the principal of (and premium, if any, on) any Debt
Security of such series at its Maturity; (3) default in the deposit of any
sinking fund payment, when and as due by the terms of a Debt Security of such
series; (4) default in the performance, or breach, of any covenant or warranty
in the applicable Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere specifically dealt with or which
expressly has been included in the applicable Indenture solely for the benefit
of Debt Securities of a series other than such series), and continuance of such
default or breach for a period of 30 days after there has been given by
registered or certified mail, to the Company by the applicable Trustee or to the
Company and the applicable Trustee by the Holders of at least 30% in principal
amount of the outstanding Debt Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default"; (5) certain events of bankruptcy,
insolvency or reorganization with respect to the Company; or (6) any other Event
of Default provided with respect to Debt Securities of that series.
Each Indenture requires the Company to file with the applicable Trustee,
annually, an officers' certificate as to the Company's compliance with all
conditions and covenants under the applicable Indenture. Each Indenture provides
that the applicable Trustee may withhold notice to the Holders of a
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series of Debt Securities of any default (except payment defaults on such Debt
Securities) if it considers such withholding to be in the interest of the
Holders of such series of Debt Securities.
If an Event of Default with respect to Debt Securities of any series at the
time outstanding occurs and is continuing, then in every case the applicable
Trustee or the Holders of not less than 25% in principal amount of the
outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the applicable Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount), plus accrued and unpaid interest (and
premium, if any) shall become immediately due and payable. Upon payment of such
amount in the currency in which such Debt Securities are denominated (except as
otherwise provided in the applicable Indenture or specified in the Prospectus
Supplement), all obligations of the Company in respect of the payment of
principal of the Debt Securities of such series shall terminate.
Subject to the provisions of each Indenture relating to the duties of the
applicable Trustee, in case an Event of Default with respect to Debt Securities
of a particular series shall occur and be continuing, the applicable Trustee
shall be under no obligation to exercise any of its rights or powers under such
Indenture at the request, order or direction of any of the Holders of Debt
Securities of that series, unless such Holders shall have offered to the
applicable Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in complying with such request or
direction. Subject to such provisions for the indemnification of the applicable
Trustee, the Holders of a majority in principal amount of the outstanding Debt
Securities of such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the applicable
Trustee under such Indenture, or exercising any trust or power conferred on the
applicable Trustee with respect to the Debt Securities of that series.
At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the applicable Trustee as provided
in the Indentures, the Holders of a majority in principal amount of the
outstanding Debt Securities of such series, by written notice to the Company and
the applicable Trustee, may rescind and annul such declaration and its
consequences, subject to any terms or conditions specified in the applicable
Prospectus Supplement.
MERGER OR CONSOLIDATION
Each Indenture provides that the Company may not consolidate with or merge
with or into or wind up into (whether or not the Company is the surviving
corporation) or sell, assign, convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless (1) the corporation
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety (the "successor corporation")
is a corporation organized and existing under the laws of the United States or
any State or territory thereof or the District of Columbia and expressly assumes
by a supplemental indenture the due and punctual payment of the principal of
(and premium, if any) and interest on all the Debt Securities and Coupons, if
any, issued under the applicable Indenture and the performance of every covenant
in the applicable Indenture on the part of the Company to be performed or
observed; (2) immediately after giving effect to such transaction, no Event of
Default under the applicable Indenture, and no event which, after notice or
lapse of time, or both, would become such an Event of Default, shall have
happened and be continuing; and (3) such other conditions as may be specified in
the applicable Prospectus Supplement.
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MODIFICATION OR WAIVER
Without prior notice to or consent of any Holders, the Company and the
applicable Trustee, at any time and from time to time, may modify the applicable
Indenture for any of the following purposes: (1) to evidence the succession of
another corporation to the rights of the Company and the assumption by such
successor of the covenants and obligations of the Company in the applicable
Indenture and in the Debt Securities and Coupons, if any, issued thereunder in
accordance with the terms of the applicable Indenture; (2) to add to the
covenants of the Company for the benefit of the Holders of all or any series of
Debt Securities and the Coupons, if any, appertaining thereto (and if such
covenants are to be for the benefit of less than all series, stating that such
covenants are expressly being included solely for the benefit of such series),
or to surrender any right or power conferred in the applicable Indenture upon
the Company; (3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such Events
of Default are expressly being included solely to be applicable to such series);
(4) to add or change any of the provisions of the applicable Indenture to such
extent as shall be necessary to permit or facilitate the issuance thereunder of
Debt Securities of any series in bearer form, registrable or not registrable,
and with or without Coupons, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to permit
the issuance of Debt Securities of any series in uncertificated form, provided
that any such action shall not adversely affect the interests of the Holders of
Debt Securities of any series or any related Coupons in any material respect;
(5) to change or eliminate any of the provisions of the applicable Indenture,
provided that any such change or elimination will become effective only when
there is no outstanding Debt Security issued thereunder or Coupon of any series
created prior to such modification which is entitled to the benefit of such
provision and as to which such modification would apply; (6) to secure the Debt
Securities issued thereunder or to provide that any of the Company's obligations
under the Debt Securities or the applicable Indenture shall be guaranteed and
the terms and conditions for the release or substitution of such security or
guarantee; (7) to supplement any of the provisions of the applicable Indenture
to such extent as is necessary to permit or facilitate the defeasance and
discharge of any series of Debt Securities, provided that any such action will
not adversely affect the interests of the Holders of Debt Securities of such
series or any other series of Debt Securities issued under such Indenture or any
related Coupons in any material respect; (8) to establish the form or terms of
Debt Securities and Coupons, if any, as permitted by the applicable Indenture;
(9) to evidence and provide for the acceptance of appointment thereunder by a
successor Trustee with respect to one or more series of Debt Securities and to
add to or change any of the provisions of the applicable Indenture as is
necessary to provide for or facilitate the administration of the trusts
thereunder by more than one Trustee; or (10) to cure any ambiguity, to correct
or supplement any provision in the applicable Indenture which may be defective
or inconsistent with any other provision therein, to eliminate any conflict
between the terms of the applicable Indenture and the Debt Securities issued
thereunder and the TIA or to make any other provisions with respect to matters
or questions arising under the applicable Indenture which will not be
inconsistent with any provision of the applicable Indenture; provided such other
provisions shall not adversely affect the interests of the Holders of
outstanding Debt Securities or Coupons, if any, of any series created thereunder
prior to such modification in any material respect.
With the written consent of the Holders of not less than a majority in
principal amount of the outstanding Debt Securities of each series affected by
such modification voting separately, the Company and the applicable Trustee may
modify the applicable Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the applicable
Indenture or of modifying in any manner the rights of the Holders of Debt
Securities and Coupons, if any, under the applicable Indenture; provided,
however, that such modifications may not, without the consent of the Holder of
each outstanding Debt Security of each series affected, conflict with the
required provisions of the TIA or make any change or modification specified in
the applicable Prospectus Supplement.
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A modification which changes or eliminates any covenant or other provision
of the applicable Indenture with respect to one or more particular series of
Debt Securities and Coupons, if any, or which modifies the rights of the Holders
of Debt Securities and Coupons of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under the applicable
Indenture of the Holders of Debt Securities and Coupons, if any, of any other
series.
Each of the Indentures provides that the Holders of not less than a majority
in aggregate principal amount of the then outstanding Debt Securities of any
series, by notice to the relevant Trustee, may on behalf of the Holders of the
Debt Securities of such series waive any Default or Event of Default and its
consequences under the applicable Indenture, except (1) a continuing Default or
Event of Default in the payment of interest on, premium, if any, or the
principal of, any such Debt Security held by a non-consenting Holder or (2) a
default in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each outstanding Debt Security of
each series affected.
SUBORDINATION
Upon any distribution of assets of the Company upon the dissolution, winding
up, liquidation or reorganization of the Company, the payment of the principal
of (and premium, if any) and interest on the Subordinated Debt Securities will
be subordinated to the extent provided in the Subordinated Indenture or as
described in the applicable Prospectus Supplement in right of payment to the
prior payment in full of all Senior Indebtedness, including Senior Debt
Securities, but the obligation of the Company to make payment of principal (and
premium, if any) or interest on the Subordinated Debt Securities will not
otherwise be affected. Unless otherwise indicated in a Prospectus Supplement, no
payment on account of principal (and premium, if any), sinking funds or interest
may be made on the Subordinated Debt Securities at any time when there is a
default in the payment of principal (and premium, if any), interest or certain
other obligations on Senior Indebtedness. In addition, the Prospectus Supplement
for each series of Subordinated Debt Securities may provide that payments on
account of principal (any premium, if any) or interest in respect of such
Subordinated Debt Securities may be delayed or not paid under the circumstances
and for the periods specified in such Prospectus Supplement. Unless otherwise
indicated in a Prospectus Supplement, in the event that, notwithstanding the
foregoing, any payment by the Company described in the foregoing sentence is
received by the Trustee under the Subordinated Indenture or the Holders of any
of the Subordinated Debt Securities before all Senior Indebtedness is paid in
full, such payment or distribution shall be paid over to the Holders of such
Senior Indebtedness or on their behalf for application to the payment of all
such Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or
distribution to the Holders of such Senior Indebtedness. Subject to payment in
full of Senior Indebtedness, the Holders of the Subordinated Debt Securities
will be subrogated to the rights of the Holders of the Senior Indebtedness to
the extent of payments made to the Holders of such Senior Indebtedness out of
the distributive share of the Subordinated Debt Securities.
By reason of such subordination, in the event of a distribution of assets
upon insolvency, certain general creditors of the Company may recover more,
ratably, than holders of the Subordinated Debt Securities. The Subordinated
Indenture provides that the subordination provisions thereof shall not apply to
money and securities held in trust pursuant to the satisfaction and discharge
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 therein will set forth the
approximate amount of Senior Indebtedness outstanding as of a recent date.
"Senior Indebtedness" with respect to any series of Subordinated Debt Securities
shall have the meaning specified in the applicable Prospectus Supplement for
such series.
16
<PAGE>
DISCHARGE, LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The applicable Indenture with respect to the Debt Securities of any series
may be discharged, subject to certain terms and conditions as specified in the
applicable Prospectus Supplement when either (A) all Debt Securities (with
certain exceptions as provided in the Indenture) and the Coupons, if any, of
such series have been delivered to the applicable Trustee for cancellation, (B)
all Debt Securities and the Coupons, if any, of such series not theretofore
delivered to the applicable Trustee for cancellation (i) have become due and
payable, (ii) will become due and payable at their Stated Maturity within one
year or (iii) are to be called for redemption within one year or (C) certain
events or conditions occur as specified in the applicable Prospectus Supplement.
In addition, each series of Debt Securities may provide additional or different
terms or conditions for the discharge or defeasance of some or all of the
obligations of the Company as may be specified in the applicable Prospectus
Supplement.
If provision is made for the defeasance of Debt Securities of a series, and
if the Debt Securities of such series are Registered Securities and denominated
and payable only in U.S. dollars, then the provisions of each Indenture relating
to defeasance shall be applicable except as otherwise specified in the
applicable Prospectus Supplement for Debt Securities of such series. Defeasance
provisions, if any, for Debt Securities denominated in a foreign currency or
currencies or for Bearer Securities may be specified in the applicable
Prospectus Supplement.
At the Company's option, either (a) the Company shall be deemed to have been
discharged from its obligations with respect to Debt Securities of any series
("legal defeasance option") or (b) the Company shall cease to be under any
obligation to comply with certain provisions of the applicable Indenture with
respect to the certain covenants, if any, specified in the applicable Prospectus
Supplement with respect to Debt Securities of any series ("covenant defeasance
option") at any time after the conditions set forth in the applicable Prospectus
Supplement have been satisfied.
PAYMENT AND PAYING AGENTS
The Company covenants and agrees for the benefit of each series of Debt
Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons, if any, and the
applicable Indenture.
If Debt Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Debt Securities of that series may be presented or surrendered for
payment, where Debt 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 Debt Securities of that series and the applicable
Indenture may be served.
If Debt Securities of a series are issuable as Bearer Securities, the
Company will maintain or cause to be maintained (A) in the Borough of Manhattan,
The City and State of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Debt Securities of that series may be surrendered for exchange
or redemption, where notices and demands to or upon the Company in respect of
the Debt Securities of that series and the applicable Indenture may be served
and where Bearer Securities of that series and related Coupons may be presented
or surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or registration
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Debt Securities of that
series and related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Debt Securities of that
series, if so provided in such series; provided, however, that if the Debt
Securities of that series are listed on The Stock Exchange of the United Kingdom
and the Republic of Ireland, the Luxembourg Stock Exchange or any other stock
exchange
17
<PAGE>
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Debt Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Debt Securities of that series are listed on
such exchange, and (C) subject to any laws or regulations applicable thereto, in
a Place of Payment for that series located outside the United States an office
or agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange or redemption and where notices and demands to or upon
the Company in respect of the Debt Securities of that series and the applicable
Indenture may be served. The Company will give prompt written notice to the
applicable Trustee of the locations, and any change in the locations, of such
offices or agencies. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the applicable Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the corporate trust office of the applicable Trustee, except
that Bearer Securities of that series and the related coupons may be presented
and surrendered for payment at the offices specified in the applicable Debt
Security and the Company has appointed the applicable Trustee (or in the case of
Bearer Securities, may appoint such other agent as may be specified in the
applicable Prospectus Supplement) as its agent to receive all presentations,
surrenders, notices and demands.
No payment of principal, premium or interest 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, that, if
the Debt Securities of a series are denominated and payable in U.S. dollars,
payment of principal of and any premium and interest on Debt Securities
(including any additional amounts payable on Securities of such series) of such
series, if specified in the applicable Prospectus Supplement, shall be made at
the office of the Company's Paying Agent in the Borough of Manhattan, the City
and State of New York, if (but only if) payment in U.S. dollars of the full
amount of such principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with the applicable Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in global
form that will be deposited with, or on behalf of, a depositary identified in
the Prospectus Supplement. Global Notes may be issued in either registered or
bearer form and in either temporary or permanent form (each a "Global Note").
CONVERSION RIGHTS
The terms and conditions, if any, upon which Debt Securities being offered
are convertible into Common Stock will be set forth in the Prospectus Supplement
relating thereto. Such terms will include the conversion price, the conversion
period, provisions as to whether conversion will be at the option of the Holder
or the Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such Debt
Securities.
CORPORATE EXISTENCE
Subject to the terms of the applicable Indenture, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company.
18
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 200,000,000 shares
of Common Stock, par value $.01 per share, of which 77,503,341 shares were
outstanding as of April 7, 1995. The Company is not authorized to issue
preferred stock. Upon the consummation of the Merger and adoption of the Amended
and Restated Articles of Incorporation, the authorized capital stock of the
Company will consist of 60,000,000 shares of Common Stock, par value $.01 per
share, of which 25,715,000 shares of Common Stock will be outstanding and
10,000,000 shares of Common Stock will be reserved for issuance upon the
exercise of the Warrants. Although the Common Stock is currently traded on the
Nasdaq National Market, the Company anticipates that it will seek to have the
Common Stock delisted.
Voting Rights. The holders of the Common Stock are entitled to one vote per
share on all matters submitted for action by the shareholders. There is no
provision for cumulative voting with respect to the election of directors.
Accordingly, the holders of more than 50% of the shares of Common Stock can, if
they choose to do so, elect all of the directors. In such event, the holders of
the remaining shares will not be able to elect any directors.
Dividend Rights. All shares of Common Stock are entitled to share equally in
such dividends as the Board of Directors may declare from sources legally
available therefor.
Liquidation Rights. Upon liquidation or dissolution of the Company, whether
voluntary or involuntary, all shares of Common Stock are entitled to share
equally in the assets available for distribution to shareholders after payment
of all prior obligations of the Company.
Other Matters. The holders of the Common Stock have no preemptive rights.
All outstanding shares of Common Stock are, and the Common Stock offered hereby
will be, fully paid and non-assessable.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities or Common Stock. Securities Warrants may be issued independently or
together with Debt Securities or Common Stock offered by any Prospectus
Supplement and may be attached to or separate from any such Offered Securities.
Each series of Securities Warrants will be issued under a separate warrant
agreement (a "Securities Warrant Agreement") to be entered into between the
Company and a bank or trust company, as warrant agent (the "Securities Warrant
Agent"), all as set forth in the Prospectus Supplement relating to the
particular issue of Securities Warrants. The Securities Warrant Agent will act
solely as an agent of the Company in connection with the Securities Warrants and
will not assume any obligation or relationship of agency or trust for or with
any holders of Securities Warrants or beneficial owners of Securities Warrants.
The following summary of certain provisions of the Securities Warrants does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all provisions of the Securities Warrant Agreements.
Reference is made to the Prospectus Supplement relating to the particular
issue of Securities Warrants offered thereby for the terms of such Securities
Warrants, including, where applicable: (i) the designation, aggregate principal
amount, currencies, denominations, and terms of the series of Debt Securities
purchasable upon exercise of Debt Warrants and the price at which such Debt
Securities may be purchased upon such exercise; (ii) the number of shares of
Common Stock purchasable upon the exercise of Common Stock Warrants and the
price at which such number of shares of Common Stock may be purchased upon such
exercise; (iii) the date on which the right to exercise such Securities Warrants
shall commence and the date on which such right shall expire (the "Expiration
Date"); (iv) United States Federal income tax consequences applicable to such
Securities Warrants; and (v) any
19
<PAGE>
other terms of such Securities Warrants. Common Stock Warrants will be offered
and exercisable for U.S. dollars only. Securities Warrants will be issued in
registered form only. The exercise price for Securities Warrants will be subject
to adjustment in accordance with the applicable Prospectus Supplement.
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or such number of shares of Common Stock at
such exercise price as shall in each case be set forth in, or calculable from,
the Prospectus Supplement relating to the Securities Warrants, which exercise
price may be subject to adjustment upon the occurrence of certain events as set
forth in such Prospectus Supplement. After the close of business on the
Expiration Date (or such later date to which such Expiration Date may be
extended by the Company), unexercised Securities Warrants will become void. The
place or places where, and the manner in which, Securities Warrants may be
exercised shall be specified in the Prospectus Supplement relating to such
Securities Warrants.
Prior to the exercise of any Securities Warrants to purchase Debt Securities
or Common Stock, holders of such Securities Warrants will not have any of the
rights of holders of the Debt Securities or Common Stock, as the case may be,
purchasable upon such exercise, including the right to receive payments of
principal of, premium, if any, or interest, if any, in the Debt Securities
purchasable upon such exercise or to enforce covenants in the applicable
Indenture, or to receive payments of dividends, if any, on the Common Stock
purchasable upon such exercise, or to exercise any applicable right to vote.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to which this Prospectus relates
to or for resale to the public through one or more underwriters, acting alone or
in underwriting syndicates led by one or more managing underwriters, and also
may sell such Offered Securities directly to other purchasers or dealers or
through agents.
The distribution of Offered Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed from
time to time, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, or at negotiated prices. Each Prospectus
Supplement will describe the method of distribution of the Offered Securities.
In connection with the sale of Offered Securities, such underwriters,
dealers, and agents may receive compensation from the Company, or from
purchasers of Offered Securities for whom they may act as agents, in the form of
discounts, concessions, or commissions. Underwriters, dealers, and agents that
participate in the distribution of Offered Securities and, in certain cases,
direct purchasers from the Company, may be deemed to be "underwriters" and any
discounts or commissions received by them and any profit on the resale of
Offered Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriters, dealers, or agents
will be identified and any such compensation will be described in the applicable
Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers, and agents who participate in the distribution of Offered Securities
may be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act. The place and time of delivery
for Offered Debt Securities in respect of which this Prospectus is delivered
will be set forth in the applicable Prospectus Supplement.
20
<PAGE>
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Sirote & Permutt, P.C., Birmingham, Alabama, and for any underwriters by
counsel to be specified in the accompanying Prospectus Supplement. As of July
11, 1995, lawyers of Sirote & Permutt, P.C. who have participated in the
preparation of the Registration Statement of which this Prospectus is a part
and/or serve as members of the Board of Directors of the Company beneficially
own 49,915 shares of Common Stock of the Company individually or in various
fiduciary capacities. Although other members of the firm may also own securities
of the Company, no inquiry as to such ownership has been made. As to matters of
New York law, Sirote & Permutt, P.C. will rely on the opinion of Simpson Thacher
& Bartlett (a partnership which includes professional corporations), New York,
New York.
INDEPENDENT PUBLIC ACCOUNTANTS
The consolidated financial statements of the Company as of July 2, 1994 and
July 3, 1993 and for each of the three years in the period ended July 2, 1994,
incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended July 2, 1994 have been audited by Arthur Andersen LLP, independent
public accountants as indicated in their report with respect thereto and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said reports.
21
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION:
The estimated expenses in connection with the distribution are as follows:
<TABLE>
<CAPTION>
AMOUNT TO BE PAID
-----------------
<S> <C>
Securities and Exchange Commission Registration Fee........................ $ 258,625
Legal Fees and Expenses.................................................... 50,000
Accounting Fees and Expenses............................................... 30,000
Printing and Engraving..................................................... 20,000
Trustee Fees............................................................... 30,000
Miscellaneous.............................................................. 10,000
-----------------
TOTAL.............................................................. $ 368,625
-----------------
-----------------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 10-2B-8.51 and 10-2B-8.56, of the Alabama Business Corporation Act
(the "ABCA") allow indemnification by a corporation, under certain
circumstances, of any person who was or is a party (or is threatened to be made
a party) to any threatened, pending or completed claim, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise; provided, that such person acted in
good faith and in a manner he reasonably believed to be, in the case of conduct
in his or her official capacity with the corporation, in its best interests,
and, in all other cases, in or not opposed to its best interests and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. A corporation also has the power under Section
10-2B-8.57 of the ABCA to purchase and maintain indemnity insurance against such
threatened, pending or completed claim, action, suit or proceeding on behalf of
any person who is or was a director, officer, employee or agent of the
corporation, or who is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise.
Article IX of the Bylaws of Bruno's, Inc. provides that the Company may, at
the discretion of the Board of Directors, indemnify any director, officer or
employee of the Company against expenses reasonably incurred by him in
connection with any action, suit or proceeding to which he is a party by reason
of his being or having been a director, officer or employee of the Company or,
at the Company's request, his being or having been a director, officer or
employee of another corporation provided such director, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Company, and in addition, in any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful. No indemnification
shall be made to such person who is adjudged to be liable for negligence or
misconduct except to the extent the court determines such person is fairly and
reasonably entitled to indemnity.
The Registrant maintains officers' and directors' insurance covering certain
liabilities that may be incurred by officers and directors in the performance of
their duties.
II-1
<PAGE>
ITEM 16. EXHIBITS
Set forth below is a list of the exhibits included as part of this
Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- ------------------------------------------------------------------------------------
<C> <S>
*1 Form of Underwriting Agreement between the Company and the Underwriters.
2 Agreement and Plan of Merger dated as of April 20, 1995 between Crimson Acquisition
Corp. and Bruno's, Inc., as amended on May 18, 1995 (incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K dated April 27, 1995 and Exhibit
10.1 to the Current Report on Form 8-KA dated May 30, 1995).
4.1 Form of Indenture with respect to the Senior Debt Securities.
4.2 Form of Indenture with respect to the Subordinated Debt Securities.
*4.3 Form of Warrant Agreement for Debt Securities.
*4.4 Form of Warrant Certificate for Debt Securities.
*4.5 Form of Warrant Agreement for Common Stock.
*4.6 Form of Warrant Certificate for Common Stock.
5.1 Opinion of Sirote & Permutt, P.C.
5.2 Opinion of Simpson Thacher & Bartlett.
12 Computation of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Sirote & Permutt, P.C. (included in Exhibit 5.1).
23.3 Consent of Simpson Thacher & Bartlett (included in Exhibit 5.2).
24 Powers of Attorney (included in the signature pages to this Registration Statement)
25.1 Form T-1 (Statement of Eligibility of Senior Debt Trustee).
25.2 Form T-1 (Statement of Eligibility of Subordinated Debt Trustee).
</TABLE>
- ------------
* To be filed by a Current Report on Form 8-K.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
II-2
<PAGE>
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'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 and Exchange
Act of 1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the 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 Securities Act
of 1933 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 thereof 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Birmingham, State of Alabama, on this
18th day of July 1995.
BRUNO'S, INC.
By /s/ RONALD G. BRUNO
...................................
Ronald G. Bruno
Chief Executive Officer and
Chairman of the Board
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Ronald G. Bruno and Glenn J. Griffin, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as such person might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ------------------------------------- -------------
<S> <C> <C>
..................................... Chairman Emeritus of the Board of
Joseph S. Bruno Directors
/s/ RONALD G. BRUNO Chairman of the Board of Directors July 18, 1995
..................................... and Chief Executive Officer
Ronald G. Bruno (Principal Executive Officer)
PAUL F. GARRISON* President, Chief Operating Officer July 18, 1995
..................................... and Director
Paul F. Garrison
GLENN J. GRIFFIN* Executive Vice President, Chief July 18, 1995
..................................... Financial Officer, Treasurer,
Glenn J. Griffin Assistant Secretary and Director
(Principal Financial and Accounting
Officer)
KENNETH J. BRUNO* Executive Vice President and Director July 18, 1995
.....................................
Kenneth J. Bruno
..................................... Director
Judy M. Merritt
RICHARD COHN* Director July 18, 1995
.....................................
Richard Cohn
BENNY M. LA RUSSA, JR.* Director July 18, 1995
.....................................
Benny M. La Russa, Jr.
J. MASON DAVIS JR.* Director July 18, 1995
.....................................
J. Mason Davis Jr.
..................................... Director
Bart Starr
*By: /s/ RONALD G. BRUNO
................................
Ronald G. Bruno
Attorney-in-Fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- -----------------------------------------------------------------------------------
<C> <S>
*1 Form of Underwriting Agreement between the Company and the Underwriters.
2 Agreement and Plan of Merger dated as of April 20, 1995 between Crimson Acquisition
Corp. and Bruno's, Inc., as amended on May 18, 1995 (incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K dated April 27, 1995 and Exhibit
10.1 to the Current Report on Form 8-KA dated May 30, 1995).
4.1 Form of Indenture with respect to the Senior Debt Securities.
4.2 Form of Indenture with respect to the Subordinated Debt Securities.
*4.3 Form of Warrant Agreement for Debt Securities.
*4.4 Form of Warrant Certificate for Debt Securities.
*4.5 Form of Warrant Agreement for Common Stock.
*4.6 Form of Warrant Certificate for Common Stock.
5.1 Opinion of Sirote & Permutt, P.C.
5.2 Opinion of Simpson Thacher & Bartlett.
12 Computation of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Sirote & Permutt, P.C. (included in Exhibit 5.1).
23.3 Consent of Simpson Thacher & Bartlett (included in Exhibit 5.2).
24 Powers of Attorney (included in the signature pages to this Registration Statement)
25.1 Form T-1 (Statement of Eligibility of Senior Debt Trustee).
25.2 Form T-1 (Statement of Eligibility of Subordinated Debt Trustee).
</TABLE>
- ------------
* To be filed by a Current Report on Form 8-K.
Exhibit 4.1
==================================================================
BRUNO'S INC.
To
Trustee
__________
Indenture
Dated as of __________ __, 1995
__________
==================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . 1
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Compliance Certificates and Opinions . . . . . . . . . . . . 11
Section 1.03. Form of Documents Delivered to Trustee . . . . . . . . . . . 11
Section 1.04. Notices, etc., to Trustee and Company . . . . . . . . . . . 12
Section 1.05. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . 12
Section 1.06. Conflict with Trust Indenture Act . . . . . . . . . . . . . 13
Section 1.07. Effect of Headings and Table of Contents . . . . . . . . . . 13
Section 1.08. Successors and Assigns . . . . . . . . . . . . . . . . . . . 13
Section 1.09. Separability Clause . . . . . . . . . . . . . . . . . . . . 13
Section 1.10. Benefits of Indenture . . . . . . . . . . . . . . . . . . . 14
Section 1.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1.12. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1.13. No Security Interest Created . . . . . . . . . . . . . . . . 14
Section 1.14. Liability Solely Corporate . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
DEBT SECURITY FORMS . . . . . . . . . . . . 15
Section 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.02. Form of Trustee's Certificate of Authentication . . . . . . 16
Section 2.03. Securities in Global Form . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
THE DEBT SECURITIES . . . . . . . . . . . . 16
Section 3.01. Amount Unlimited; Issuable in Series . . . . . . . . . . . . 16
Section 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.03. Execution, Authentication, Delivery and Dating . . . . . . . 20
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global
Notes for Definitive Bearer Securities . . . . . . . . . . . . . . . . 22
Section 3.05. Registration, Transfer and Exchange . . . . . . . . . . . . 27
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities . . . 29
Section 3.07. Payment of Interest; Interest Rights Preserved . . . . . . . 30
Section 3.08. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.09. Computation of Interest . . . . . . . . . . . . . . . . . . 32
Section 3.10. Currency of Payments in Respect of Debt . . . . . . . . . . 32
Section 3.11. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 3.12. Exchange Upon Default . . . . . . . . . . . . . . . . . . . 36
- i -
<PAGE>
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ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . 36
Section 4.01. Satisfaction and Discharge of Indenture . . . . . . . . . . 36
Section 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . 37
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . 38
Section 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . 38
Section 5.02. Acceleration of Maturity; Rescission and Annulment . . . . . 39
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . 41
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.06. Application of Money Collected . . . . . . . . . . . . . . . 42
Section 5.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . 42
Section 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.09. Restoration of Rights and Remedies . . . . . . . . . . . . . 43
Section 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . 43
Section 5.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . 43
Section 5.12. Control by Holders . . . . . . . . . . . . . . . . . . . . . 43
Section 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 44
Section 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . 44
Section 5.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . 44
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . 45
Section 6.01. Certain Duties and Responsibilities . . . . . . . . . . . . 45
Section 6.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . 46
Section 6.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . 46
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities 47
Section 6.05. May Hold Debt Securities . . . . . . . . . . . . . . . . . . 47
Section 6.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . . 48
Section 6.07. Compensation and Reimbursement . . . . . . . . . . . . . . . 48
Section 6.08. Disqualification; Conflicting Interests . . . . . . . . . . 48
Section 6.09. Corporate Trustee Required; Eligibility . . . . . . . . . . 54
Section 6.10. Resignation and Removal; Appointment of Successor . . . . . 54
Section 6.11. Acceptance of Appointment by Successor . . . . . . . . . . . 55
Section 6.12. Merger, Conversion, Consolidation or Succession to Business 56
Section 6.13. Preferential Collection of Claims Against Company . . . . . 56
Section 6.14. Appointment of Authenticating Agent . . . . . . . . . . . . 59
- ii -
<PAGE>
Page
----
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . 61
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders . 61
Section 7.02. Preservation of Information; Communication to Holders . . . 62
Section 7.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . 63
Section 7.04. Reports by Company . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE EIGHT
CONCERNING THE HOLDERS . . . . . . . . . . . . 65
Section 8.01. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . 65
Section 8.02. Proof of Ownership; Proof of Execution of Instruments
by Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 8.03. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 66
Section 8.04. Revocation of Consents; Future Holders Bound . . . . . . . . 67
ARTICLE NINE
HOLDERS' MEETINGS . . . . . . . . . . . . . 67
Section 9.01. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . 67
Section 9.02. Call of Meetings by Trustee . . . . . . . . . . . . . . . . 68
Section 9.03. Call of Meetings by Company or Holders . . . . . . . . . . . 68
Section 9.04. Qualifications for Voting . . . . . . . . . . . . . . . . . 68
Section 9.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 9.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 9.07. No Delay of Rights by Meeting . . . . . . . . . . . . . . . 69
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . 69
Section 10.01. Company May Consolidate, etc., Only on Certain Terms . . . 69
Section 10.02. Successor Corporation Substituted . . . . . . . . . . . . . 70
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES . . . . . . . . . . . 70
Section 11.01. Supplemental Indentures Without Consent of Holders . . . . 70
Section 11.02. Supplemental Indentures With Consent of Holders . . . . . . 72
Section 11.03. Execution of Supplemental Indentures . . . . . . . . . . . 73
Section 11.04. Effect of Supplemental Indentures . . . . . . . . . . . . . 73
Section 11.05. Conformity with Trust Indenture Act . . . . . . . . . . . . 73
Section 11.06. Reference in Debt Securities to Supplemental Indentures . . 73
Section 11.07. Notice of Supplemental Indenture . . . . . . . . . . . . . 73
- iii -
<PAGE>
Page
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ARTICLE TWELVE
COVENANTS . . . . . . . . . . . . . . . 74
Section 12.01. Payment of Principal, Premium and Interest . . . . . . . . 74
Section 12.02. Officer's Certificate as to Default . . . . . . . . . . . . 74
Section 12.03. Maintenance of Office or Agency . . . . . . . . . . . . . . 74
Section 12.04. Money for Debt Securities; Payments To Be Held in Trust . . 75
Section 12.05. Corporate Existence . . . . . . . . . . . . . . . . . . . . 76
Section 12.06. Purchase of Debt Securities by Company . . . . . . . . . . 77
Section 12.07. Waiver of Certain Covenants . . . . . . . . . . . . . . . . 77
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES . . . . . . . . . . 77
Section 13.01. Applicability of Article . . . . . . . . . . . . . . . . . 77
Section 13.02. Election to Redeem; Notice to Trustee . . . . . . . . . . . 77
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed . . 78
Section 13.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . 78
Section 13.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . 79
Section 13.06. Debt Securities Payable on Redemption Date . . . . . . . . 79
Section 13.07. Debt Securities Redeemed in Part . . . . . . . . . . . . . 80
ARTICLE FOURTEEN
SINKING FUNDS . . . . . . . . . . . . . . 80
Section 14.01. Applicability of Article . . . . . . . . . . . . . . . . . 80
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 14.03. Redemption of Debt Securities for Sinking Fund . . . . . . 81
ARTICLE FIFTEEN
DEFEASANCE . . . . . . . . . . . . . . . 82
Section 15.01. Applicability of Article . . . . . . . . . . . . . . . . . 82
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be
Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 15.04. Repayment to Company . . . . . . . . . . . . . . . . . . . 84
ARTICLE SIXTEEN
CONVERSION . . . . . . . . . . . . . . . 85
Section 16.01. Applicability; Conversion Privilege . . . . . . . . . . . . 85
Section 16.02. Conversion Procedure; Conversion Price; Fractional Shares . 85
Section 16.03. Adjustment of Conversion Price for Common Stock . . . . . . 86
Section 16.04. Consolidation or Merger of the Company . . . . . . . . . . 89
Section 16.05. Notice of Adjustment . . . . . . . . . . . . . . . . . . . 89
Section 16.06. Notice in Certain Events . . . . . . . . . . . . . . . . . 90
- iv -
<PAGE>
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Section 16.07. Company to Reserve Stock; Registration; Listing . . . . . . 90
Section 16.08. Taxes on Conversion . . . . . . . . . . . . . . . . . . . . 91
Section 16.09. Conversion After Record Date . . . . . . . . . . . . . . . 91
Section 16.10. Company Determination Final . . . . . . . . . . . . . . . . 91
Section 16.11. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . 91
- v -
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________ __, 1995
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
Sec. 310 (a)(1) . . . . . . . . . 6.09
(a)(2) . . . . . . . . . 6.09
(a)(3) . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . 6.09
(b) . . . . . . . . . . . 6.08, 6.10
(c) . . . . . . . . . . . Not Applicable
Sec. 311 (a) . . . . . . . . . . . 6.13(a)
(b) . . . . . . . . . . . 6.13(b)
(c) . . . . . . . . . . . Not Applicable
Sec. 312 (a) . . . . . . . . . . . 7.01, 7.02(a)
(b) . . . . . . . . . . . 7.02(b)
(c) . . . . . . . . . . . 7.02(c)
Sec. 313 (a) . . . . . . . . . . . 7.03(a)
(b) . . . . . . . . . . . 7.03(b)
(c) . . . . . . . . . . . 7.03(a),
7.03(c)
(d) . . . . . . . . . . . 7.03(d)
Sec. 314 (a) . . . . . . . . . . . 7.04, 12.02
(b) . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . 1.02
(c)(2) . . . . . . . . . 1.02
(c)(3) . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . 1.02
Sec. 315 (a) . . . . . . . . . . . 6.01(a),
6.01(c)
(b) . . . . . . . . . . . 6.02,
7.03(a)(7)
(c) . . . . . . . . . . . 6.01(b)
(d)(1) . . . . . . . . . 6.01(a)
(d)(2) . . . . . . . . . 6.01(c)(2)
(d)(3) . . . . . . . . . 6.01(c)(3)
(e) . . . . . . . . . . . 5.14
Sec. 316 (a)(1)(A) . . . . . . . . 5.02, 5.12
(a)(1)(B) . . . . . . . . 5.13
(a)(2) . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . 5.08
(c) . . . . . . . . . . . Not Applicable
<PAGE>
Sec. 317 (a)(1) . . . . . . . . . 5.03
(a)(2) . . . . . . . . . 5.04
(b) . . . . . . . . . . . 12.04
Sec. 318 . . . . . . . . . . . . 1.06
_______________
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the
Indenture.
<PAGE>
INDENTURE dated as of _______ __, 1995, between BRUNO'S INC., a
Delaware corporation (hereinafter called the "Company"), having its principal
executive office at 800 Lakeshore Parkway, Birmingham, Alabama 35211 and
-------
(hereinafter called the "Trustee"), having its Corporate Trust Office
- -------
at .
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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, bonds or other evidences of indebtedness (herein generally called the
"Debt Securities"), to be issued in one or more series, as in this Indenture
provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles or as provided with respect to any series of Debt Securities,
and, except as otherwise herein provided or as provided with respect to any
series of Debt Securities, the term "generally accepted accounting
principles" or "GAAP" with respect to any computation required or permitted
hereunder with respect to any series of Debt Securities, shall mean such as
set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board
or in such other statements by such other entity as have been approved by a
significant segment of the accounting profession which are in effect as of
the issuance date of such series of Debt Securities; and
<PAGE>
(4) 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 terms, used principally in Article Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 8.01.
"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" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control
with") as used with respect to any Person means the possession,
directly or indirectly, of the power to direct or cause the direction
of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise, provided,
--------
however, that beneficial ownership of 10% or more of the voting
-------
securities of a Person shall be deemed to be control.
"Affiliated Corporation" means any corporation which is
controlled by the Company but which is not a Subsidiary of the Company
pursuant to the definition of the term "Subsidiary."
"Authenticating Agent" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper in an official language
of the country of publication customarily published at least once a
day, and customarily published for at least five days in each calendar
week, 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 in such city.
"Bearer Security" means any Debt Security (with or without
Coupons), in the form established pursuant to Section 2.01, which is
payable to bearer (including any Global Note payable to bearer) and
title to which passes by delivery only, but does not include any
Coupons.
"Board of Directors" means either the board of directors of the
Company, or any committee of that board duly authorized to act
hereunder or any director or directors and/or officer or officers of
the Company to whom that board or committee shall have delegated its
authority.
"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.
2
<PAGE>
"Business Day" when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Debt Securities means any day which is not a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or other location are authorized or
obligated by law to close, except as otherwise specified pursuant to
Section 3.01.
"CEDEL" means Cedel S.A.
"Closing Price" of the Common Stock shall mean the last reported
sale price of such stock (regular way) as shown on the Composite Tape
of the New York Stock Exchange (or, if such stock is not listed or
admitted to trading on the New York Stock Exchange, on the principal
national securities exchange on which such stock is listed or admitted
to trading), or, in case no such sale takes place on such day, the
average of the closing bid and asked prices on the New York Stock
Exchange (or, if such stock is not listed or admitted to trading on
the New York Stock Exchange, on the principal national securities
exchange on which such stock is listed or admitted to trading), or, if
it is not listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices as reported
by the National Association of Securities Dealers Automated Quotation
System (NASDAQ), or if such stock is not so reported, the average of
the closing bid and asked prices as furnished by any member of the
National Association of Securities Dealers, Inc., selected from time
to time by the Company for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or if at any time after the execution of this
instrument such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Stock" shall mean the class of Common Stock, par value $.01
per share, of the Company authorized at the date of this Indenture as
originally signed, or any other class of stock resulting from successive
changes or reclassifications of such Common Stock, and in any such case
including any shares thereof authorized after the date of this Indenture,
and any other shares of stock of the Company which do not have any priority
in the payment of dividends or upon liquidation over any other class of
stock.
"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.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, a Vice Chairman, the President, the Chief Financial Officer
or a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
3
<PAGE>
"Component Currency" has the meaning specified in Section
3.10(i).
"Conversion Agent" means any Person authorized by the Company to
receive Debt Securities to be converted into Common Stock on behalf of
the Company. The Company initially authorizes the Trustee to act as
Conversion Agent for the Debt Securities on its behalf. The Company
may at any time from time to time authorize one or more Persons to act
as Conversion Agent in addition to or in place of the Trustee with
respect to any series of Debt Securities issued under this Indenture.
"Conversion Date" has the meaning specified in Section 3.10(e).
"Conversion Event" means the cessation of (i) a Foreign Currency
to be used both by the government of the country which issued such
Currency and for the settlement of transactions by public institutions
of or within the international banking community, (ii) the ECU to be
used 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 other than the ECU to be used
for the purposes for which it was established.
"Conversion Price" means, with respect to any series of Debt
Securities which are convertible into Common Stock, the price per
share of Common Stock at which the Debt Securities of such series are
so convertible pursuant to Section 3.01 with respect to such series,
as the same may be adjusted from time to time in accordance with
Section 16.03.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of
execution of this instrument is located at
----------------------------
.
------------------------------------------
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to any Debt
Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York Clearing House
bank, if any, from time to time selected by the Trustee for purposes
of Section 3.10; provided that such agent shall accept such
--------
appointment in writing and the terms of such appointment shall be
acceptable to the Company and shall, in the opinion of the Company and
the Trustee at the time of such appointment, require such agent to
make the determinations required by this Indenture by a method
consistent with the method provided in this Indenture for the making
of such decision or determination.
"Current Market Price" on any date shall mean the average of the
daily Closing Prices per share of Common Stock for any thirty (30)
consecutive Trading Days selected
4
<PAGE>
by the Company prior to the date in question, which thirty (30) consecutive
Trading Day period shall not commence more than forty-five (45) Trading
Days prior to the day in question; provided that with respect to
Section 16.03(3), the "Current Market Price" of the Common Stock shall mean
the average of the daily Closing Prices per share of Common Stock for the
five (5) consecutive Trading Days ending on the date of the distribution
referred to in Section 16.03(3) (or if such date shall not be a Trading
Day, on the Trading Day immediately preceding such date).
"Debt Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Debt Securities
(including any Global Notes) authenticated and delivered under this
Indenture.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Discharged" has the meaning specified in Section 15.02.
"Discount Security" means any Debt Security which is issued with
"original issue discount" within the meaning of Section 1273(a) of the
Code (or any successor provision) and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such
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 of the Currency Unit" has the meaning
specified in Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 3.10(g).
"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 3.10(i).
"Euro-clear Operator" means Morgan Guaranty Trust Company of New
York, Brussels office, or its successor as operator of the Euro-clear
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 Rate Officer's Certificate" means a telex or a
certificate setting forth (i) the applicable Market Exchange Rate and
(ii) the Dollar, Foreign Currency or Currency unit amounts of
principal, premium, if any, and any interest respectively (on
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<PAGE>
an aggregate basis and on the basis of a Debt Security having the lowest
denomination principal amount determined in accordance with Section 3.02 in
the relevant Currency or Currency unit), payable on the basis of such
Market Exchange Rate sent (in the case of a telex) or signed (in the case
of a certificate) by the Treasurer or any Assistant Treasurer of the
Company.
"Fixed Rate Security" means a Debt Security which provides for
the payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security which provides for
the payment of interest at a variable rate determined periodically by
reference to an interest rate index or any other index specified
pursuant to Section 3.01.
"Foreign Currency" means a currency issued by the government of
any country other than the United States or a composite currency or
currency unit the value of which is determined by reference to the
values of the currencies of any group of countries.
"Global Note" means a Registered or Bearer Security evidencing
all or part of a series of Debt Securities, including, without
limitation, any temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the
Registered Holder, and with respect to a Bearer Security or a Coupon,
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 and, unless the context otherwise requires, shall
include the terms of a particular series of Debt Securities as
established pursuant to Section 3.01.
The term "interest," when used with respect to a Discount
Security which by its terms bears interest only on a certain date,
means interest payable after such date, and, when used with respect to
a Bearer Security, includes any additional amounts payable on such
Bearer Security, if so provided pursuant to Section 3.01.
"Interest Payment Date" with respect to any Debt Security means
the Stated Maturity of an installment of interest on such Debt
Security.
"Market Exchange Rate" means (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
(New York City time) 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
6
<PAGE>
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
the event of the unavailability of any of the exchange rates provided for
in the foregoing clauses (i), (ii) and (iii) the Currency Determination
Agent, if any, or if there shall not be a Currency Determination Agent,
then the Trustee, 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 Currency
Determination Agent or the Trustee, as the case may be, shall deem
appropriate. Unless otherwise specified by the Currency Determination
Agent, if any, or if there shall not be a Currency Determination Agent,
then by the Trustee, 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 Debt Security means the
date on which the principal of such Debt Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call
for redemption, repayment or repurchase at the option of the Holder
thereof or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman, a Vice Chairman, the President, the Chief Financial Officer
or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel to the Company (including an employee of the Company) and
who shall be satisfactory to the Trustee, which is delivered to the
Trustee.
"Outstanding" when used with respect to Debt Securities, means,
as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities for whose 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 Debt Securities and any Coupons thereto pertaining;
provided, however, that if such Debt 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 and the date
for such redemption has passed; and
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<PAGE>
(iii) Debt Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are valid
obligations of the Company; provided, however, that in determining whether
-------- -------
the Holders of the requisite principal amount of Debt Securities
Outstanding have performed any Act hereunder, Debt Securities owned by the
Company or any other obligor upon the Debt Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding (provided, that in connection with any offer by the Company
or any obligor to purchase Debt Securities, Debt Securities rendered by a
Holder shall be Outstanding until the date of purchase), except that, in
determining whether the Trustee shall be protected in relying upon any such
Act, only Debt Securities which the Trustee knows to be so owned shall be
so disregarded. Debt Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act with respect to such
Debt Securities and that the pledgee is not the Company or any other
obligor upon the Debt Securities or any Affiliate of the Company or of such
other obligor. In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have performed any Act
hereunder, the principal amount of a Discount Security that shall be deemed
to be Outstanding for such purpose shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02 and the principal amount of a Debt Security denominated in a
Foreign Currency that shall be deemed to be Outstanding for such purpose
shall be the amount calculated pursuant to Section 3.10(k).
"Overdue Rate" when used with respect to any series of the Debt
Securities, means the rate designated as such in or pursuant to the
Board Resolution or the supplemental indenture, as the case may be,
relating to such series as contemplated by Section 3.01.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Debt
Securities on behalf of the Company.
"permanent Global Note" shall have the meaning given such term in
Section 3.04(b).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Place of Payment" when used with respect to the Debt Securities
of any series means the place or places where the principal of (and
premium, if any) and interest on the Debt Securities of that series
are payable as specified pursuant to Section 3.01.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same
debt as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and
delivered under Section 3.06 in lieu of a mutilated, lost, destroyed
or
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<PAGE>
stolen Debt Security or a Debt Security to which a mutilated, lost,
destroyed or stolen Coupon appertains shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Debt Security or the Debt
Security to which the mutilated, lost, destroyed or stolen Coupon
appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any Debt
Security pursuant to this Indenture which, in the case of a Floating
Rate Security, unless otherwise specified pursuant to Section 3.01,
shall be an Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security, the
amount of the principal thereof that would be due and payable as of
the Redemption Date upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, and in the case of any other Debt
Security, the principal amount thereof, plus, in each case, premium,
if any, and accrued and unpaid interest, if any, to the Redemption
Date.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 2.01 which is registered as to
principal and interest in the Security Register.
"Regular Record Date" for the interest payable on the Registered
Securities of any series on any Interest Payment Date means the date
specified for the purpose pursuant to Section 3.01 for such Interest
Payment Date.
"Responsible Officer" when used with respect to the Trustee means
any vice president, the secretary, any assistant secretary or any
assistant vice president or any other officer of the Trustee
customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with
the particular subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05(a).
"Senior Indebtedness" means the principal of (and premium, if
any) and unpaid interest on (i) Indebtedness of the Company, whether
outstanding on the date of this Indenture or thereafter created,
incurred, assumed or guaranteed, for money borrowed (other than the
Indebtedness evidenced by the Debt Securities of any series), unless
in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is provided that such Indebtedness is not
senior or prior in right of payment to the Debt Securities, and
(ii) renewals, extensions, modifications and refundings of any such
Indebtedness.
"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 3.10(i).
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<PAGE>
"Stated Maturity" when used with respect to any Debt Security or
any installment of principal thereof or premium thereon or interest
thereon means the date specified in such Debt Security or the Coupon,
if any, representing such installment of interest, as the date on
which the principal of such Debt Security or such installment of
principal, premium or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association, or other business entity (other than a
partnership) of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or
trustees thereof is at the time of determination owned or controlled,
directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof and (ii) any
partnership of which more than 50% of the partnership's capital
accounts, distribution rights or general or limited partnership
interests are owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a
combination thereof.
"temporary Global Note" shall have the meaning given such term in
Section 3.04(b).
"Trading Day" shall mean, with respect to the Common Stock, so
long as the Common Stock is listed or admitted to trading on the New
York Stock Exchange, a day on which the New York Stock Exchange is
open for the transaction of business, or, if the Common Stock is not
listed or admitted to trading on the New York Stock Exchange, a day on
which the principal national securities exchange on which the Common
Stock is listed is open for the transaction of business, or, if the
Common Stock is not so listed or admitted for trading on any national
securities exchange, a day on which NASDAQ is open for the transaction
of business.
"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 Debt Securities of any
series shall mean the Trustee with respect to Debt Securities of such
series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in force at the date as of which this instrument was
executed, except as provided in Section 11.05.
"United States" means the United States of America (including the
States and the District of Columbia), and its possessions, which
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Company pursuant to
Section 3.01 until a successor U.S. Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is
then a U.S.
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<PAGE>
Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities of
any series shall mean the U.S. Depositary with respect to the Debt
Securities of that series.
"U.S. Government Obligations" has the meaning specified in
Section 15.02.
"U.S. Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or
under the laws of the United States, or an estate or trust the income
of which is subject to United States Federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case
may be, whether or not designated by a number or word or words added
before or after 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, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 12.02) 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, 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
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<PAGE>
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 repre-
sentations 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. Notices, etc., to Trustee and Company.
-------------------------------------
Any 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 (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, 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 or airmail postage
prepaid if sent from outside the United States, to the Company addressed to
it at the address of its principal office specified in the first paragraph
of this instrument, to the attention of its Treasurer, or at any other
address previously furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Section 1.05. Notice to Holders; Waiver.
-------------------------
When this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to such Registered Holders as their names and addresses appear in the
Security Register, within the time prescribed, and (2) such notice shall be
sufficiently given to Holders of Bearer Securities or Coupons (unless otherwise
herein expressly provided) if published at least twice in an Authorized
Newspaper or Newspapers in The City of New York and, if Debt Securities of such
series are then 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, in a
daily newspaper in London or Luxembourg or in such other
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city or cities specified pursuant to Section 3.01 or in any Debt Security on
Business Days, the first such publication to be not earlier than the earliest
date and not later than two Business Days prior to the latest date prescribed
for the giving of such notice; provided, however, that, in any case, any notice
-------- -------
to Holders of Floating Rate Securities regarding the determination of a periodic
rate of interest, if such notice is required pursuant to Section 3.01, shall be
sufficiently given if given in the manner specified pursuant to Section 3.01.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
Section 1.06. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
Section 1.07. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the parties hereto
shall bind their respective successors and assigns and inure to the benefit of
their permitted successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
-------------------
In case any provision in this Indenture or in the Debt Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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Section 1.10. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law.
-------------
This Indenture, the Debt Securities and the Coupons shall be deemed to
be contracts made and to be performed entirely in the State of New York, and for
all purposes shall be governed by and construed in accordance with the internal
laws of said State without regard to the conflicts of law rules of said State.
Section 1.12. Legal Holidays.
--------------
Unless otherwise specified pursuant to Section 3.01 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture or of the Debt Securities or Coupons)
payment of principal (and premium, if any) or interest 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, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.
Section 1.13. No Security Interest Created.
----------------------------
Nothing in this Indenture or in the Debt Securities or Coupons,
express or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect in any jurisdiction where property of the Company or its
Subsidiaries is or may be located.
Section 1.14. Liability Solely Corporate.
--------------------------
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Debt Securities or Coupons, or any part
thereof, or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, or against
any stockholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, stockholder, officer or director of any
predecessor or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Debt Securities and Coupons are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any such incorporator, stockholder, officer or director, past,
present or future, of the Company (or any incorporator, stockholder, officer or
director of any such predecessor or successor corporation), either directly or
indirectly through the Company or any such predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants,
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<PAGE>
promises or agreements contained in this Indenture or in any of the Debt
Securities or Coupons or to be implied herefrom or therefrom; and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issue of Debt Securities; provided, however, that nothing herein or in the Debt
-------- -------
Securities or Coupons contained shall be taken to prevent recourse to and the
enforcement of the liability, if any, of any stockholder or subscriber to
capital stock upon or in respect of the shares of capital stock not fully paid.
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. Forms Generally.
---------------
The Debt Securities and the Coupons, if any, of each series shall be
substantially in one of the forms (including global form) established in or
pursuant to a Board Resolution or one or more indentures supplemental hereto,
and shall have 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 or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
determined by the officers executing such Debt Securities and Coupons as
conclusively evidenced by their execution of such Debt Securities and Coupons.
If the form of a series of Debt Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 3.03 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.01, Debt
Securities in bearer form (other than in global form) shall have Coupons
attached.
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Debt Securities and Coupons, as
conclusively evidenced by their execution of such Debt Securities and Coupons.
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Section 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
------------------------------
------------------------------
By
---------------------------
Authorized Signatory
Section 2.03. Securities in Global Form.
-------------------------
If any Debt Security of a series is issuable in global form (a "Global
Note"), such Global Note may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note.
Any instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.02.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities 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 in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Debt Securities of any
series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of
Debt Securities);
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(2) the aggregate principal amount of such series of Debt Securities
and any limit, on the aggregate principal amount of the Debt Securities of
the series which may be authenticated and delivered under this Indenture
(except for Debt Securities authenticated and delivered upon transfer of,
or in exchange for, or in lieu of, other Debt Securities of such series
pursuant to Sections 3.04, 3.05, 3.06, 11.06 or 13.07);
(3) the percentage of the principal amount at which the Debt
Securities of such series will be issued and, if other than the principal
amount thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity or upon redemption thereof or
the method by which such portion shall be determined.
(4) the date or dates on which or periods during which the Debt
Securities of the series may be issued, and the date or dates or the method
by which such date or dates will be determined, on which the principal of
(and premium, if any, on) the Debt Securities of such series are or may be
payable (which, if so provided in such Board Resolution or supplemental
indenture, may be determined by the Company from time to time as set forth
in the Debt Securities of the series issued from time to time);
(5) the rate or rates (which may be variable or fixed) at which the
Debt Securities of the series shall bear interest, if any, or the method by
which such rate or rates shall be determined, the date or dates from which
such interest, if any, shall accrue or the method by which such date or
dates shall be determined (which, in either case or both, if so provided in
such Board Resolution or supplemental indenture, may be determined by the
Company from time to time and set forth in the Debt Securities of the
series issued from time to time); and the Interest Payment Dates on which
such interest shall be payable (or the method of determination thereof),
and the Regular Record Dates, if any, for the interest payable on such
Interest Payment Dates and the notice, if any, to Holders regarding the
determination of interest, the manner of giving such notice, the basis upon
which interest shall be calculated if other than that of a 360-day year of
twelve 30-day months and any conditions or contingencies as to the payment
of interest in cash or otherwise, if any;
(6) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Registered
Securities) or the principal London office of the Trustee (in the case of
Bearer Securities), where the principal of (and premium, if any) and
interest on Debt Securities of the series shall be payable; the extent to
which, or the manner in which, any interest payable on any Global Note on
an Interest Payment Date will be paid, if other than in the manner provided
in Section 3.07; the extent, if any, to which the provisions of the last
sentence of Section 12.01 shall apply to the Debt Securities of the series;
and the manner in which any principal of, or premium, if any, on, any
Global Note will be paid, if other than as set forth elsewhere herein and
whether any Global Note will require any notation to evidence payment of
principal or interest;
(7) the obligation, if any, of the Company to redeem, repay, purchase
or offer to purchase Debt Securities of the series pursuant to any
mandatory redemption, sinking fund or analogous provisions or upon other
conditions or at the option of the Holder thereof and the period or periods
within which or the dates on which, the prices at which and the terms and
conditions upon which the Debt Securities of the series shall be redeemed,
repaid, purchased or offered to be purchased, in whole or in part, pursuant
to such obligation;
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(8) the right, if any, of the Company to redeem the Debt Securities
of such series at its option and 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 such Debt Securities may be redeemed, if any, in
whole or in part, at the option of the Company or otherwise;
(9) if the coin or Currency in which the Debt Securities shall be
issuable is in Dollars, the denominations of such Debt Securities if other
than denominations of $1,000 and any integral multiple thereof (except as
provided in Section 3.04);
(10) whether the Debt Securities of the series are to be issued as
Discount Securities and the amount of discount with which such Debt
Securities may be issued and, if other than the principal amount thereof,
the portion of the principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(11) provisions, if any, for the defeasance or discharge of certain of
the Company's obligations with respect to Debt Securities of the series;
(12) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto, whether
such Bearer Securities of the series may be exchanged for Registered
Securities of the series, as provided in Section 3.05(b) or otherwise and
the circumstances under which and the place or places at which any such
exchanges, if permitted, may be made;
(13) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued,
whether a procedure other than that set forth in Section 3.04(b) shall
apply and, if so, such other procedure, and if the procedure set forth in
Section 3.04(b) shall apply, the forms of certifications to be delivered
under such procedure;
(14) if other than Dollars, the Foreign Currency or Currencies in
which Debt Securities of the series shall be denominated or in which
payment of the principal of (and premium, if any) and interest on the Debt
Securities of the series may be made, and the particular provisions
applicable thereto and, if applicable, the amount of Debt Securities of the
series which entitles the Holder of a Debt Security of the series or its
proxy to one vote for purposes of Section 9.05;
(15) if the principal of (and premium, if any) or interest on Debt
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Debt
Securities are denominated or payable without such election, in addition to
or in lieu of the provisions of Section 3.10, the period or periods within
which and the terms and conditions upon which, such election may be made
and the time and the manner of determining the exchange rate or rates
between the Currency or Currencies in which the Debt Securities are
denominated or payable without such election and the Currency or Currencies
in which the Debt Securities are to be paid if such election is made;
(16) the date as of which any Debt Securities of the series shall be
dated, if other than as set forth in Section 3.03;
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(17) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index, including, but not limited to, an index based on a
Currency or Currencies other than that in which the Debt Securities are
denominated or payable, or any other type of index, the manner in which
such amounts shall be determined;
(18) if the Debt Securities of the series are denominated or payable
in a Foreign Currency, any other terms concerning the payment of principal
of (and premium, if any) or any interest on such Debt Securities (including
the Currency or Currencies of payment thereof);
(19) the designation of the original Currency Determination Agent, if
any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.01;
(22) any addition to, or modification or deletion of, any Events of
Default, covenants or term of the subordination provided for with respect
to Debt Securities of the series;
(23) if Bearer Securities of the series are to be issued, (x) whether
interest in respect of any portion of a temporary Debt Security in global
form (representing all of the Outstanding Bearer Securities of the series)
payable in respect of any Interest Payment Date prior to the exchange of
such temporary Debt Security for definitive Debt Securities of the series
shall be paid to any clearing organization with respect to the portion of
such temporary Debt Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which
any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date, (y) the terms upon which interests in such temporary Debt
Security in global form may be exchanged for interests in a permanent
Global Note or for definitive Debt Securities of the series and the terms
upon which interests in a permanent Global Note, if any, may be exchanged
for definitive Debt Securities of the series and (z) the cities and the
Authorized Newspapers designated for the purposes of giving notices to
Holders;
(24) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Notes and, in such case,
the U.S. Depositary or any Common Depositary for such Global Note or Notes;
and if the Debt Securities of the series are issuable only as Registered
Securities, the manner in which and the circumstances under which Global
Notes representing Debt Securities of the series may be exchanged for
Registered Securities in definitive form, if other than, or in addition to,
the manner and circumstances specified in Section 3.04(c);
(25) The designation, if any, of any depositaries, trustees (other
than the applicable Trustee), Paying Agents, Authenticating Agents,
Security Registrars (other than the Trustee) or other agents with respect
to the Debt Securities of such series;
(26) If the Debt Securities of such series will be issuable in
definitive form only upon receipt of certain certificates or other
documents or upon satisfaction of certain conditions, the form and terms of
such certificates, documents or conditions;
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(27) Whether the Debt Securities of such series will be convertible
into shares of Common Stock and, if so, the terms and conditions, which may
be in addition to or in lieu of the provisions contained in the Indenture,
upon which such Debt Securities will be so convertible, including the
conversion price and the conversion period;
(28) The portion of the principal amount of the Debt Securities which
will be payable upon declaration of acceleration of the maturity thereof,
if other than the principal amount thereof;
(29) The nature, content and date for reports by the Company to the
holders of the Offered Debt Securities; and
(30) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination, rate of interest, Stated Maturity and the date from
which interest, if any, shall accrue, which, as set forth above, may be
determined by the Company from time to time as to Debt Securities of a series if
so provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto, and except as may
otherwise be provided in or pursuant to such Board Resolution and (subject to
Section 3.03) set forth in such Officers' Certificate, or in any such indenture
supplemental hereto. All Debt Securities of any one series need not be issued
at the same time, and unless otherwise provided, a series may be reopened for
issuance of additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in
or pursuant to a Board Resolution, a copy of such Board Resolution 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.
-------------
In the absence of any specification pursuant to Section 3.01 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
Section 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Debt Securities and the Coupons, if any, of any series shall be
executed on behalf of the Company by its Chairman, a Vice Chairman, its
President, one of its Vice Presidents or its Treasurer, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be manual or facsimile.
Debt Securities and 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
Debt Securities and Coupons or did not hold such offices at the date of such
Debt Securities and Coupons.
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At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities, with appropriate
Coupons, if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities and Coupons and the Trustee in accordance with
the Company Order shall authenticate and deliver such Debt Securities and
Coupons; provided, however, that, in connection with its sale during the
-------- -------
"restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
-------- -------
Bearer Security (other than a temporary Global Note in bearer form) may be
delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
to the Euro-clear operator or to CEDEL a certificate substantially in the form
set forth in Exhibit A to this Indenture. If all the Debt Securities of any one
series are not to be issued at one time and if a Board Resolution or
supplemental indenture relating to such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities such as interest rate, Stated Maturity, date of issuance
and date from which interest, if any, shall accrue. If any Debt Security shall
be represented by a permanent Global Note, then, for purposes of this Section
and Section 3.04, the notation of a beneficial owner's interest therein upon
original issuance of such Debt Security or upon exchange of a portion of a
temporary Global Note shall be deemed to be delivery in connection with the
original issuance of such beneficial owner's interest in such permanent Global
Note. Except as permitted by Section 3.06 or 3.07, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons for interest
then matured have been detached and cancelled.
The Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities and Coupons of such series, (i) the supplemental
indenture or the Board Resolution by or pursuant to which the form and terms of
such Debt Securities and Coupons have been approved and (ii) an Opinion of
Counsel substantially to the effect that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt Securities and
Coupons conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Trustee to authenticate and deliver
such Debt Securities and Coupons;
(2) the forms and terms of such Debt Securities and Coupons have been
established in conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt Securities and
Coupons have been established in a supplemental indenture, the execution
and delivery of such supplemental indenture has been duly authorized by all
necessary corporate action of the Company, such supplemental indenture has
been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a valid and
binding obligation enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law);
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(4) the execution and delivery of such Debt Securities and Coupons
have been duly authorized by all necessary corporate action of the Company
and such Debt Securities and Coupons have been duly executed by the Company
and, assuming due authentication by the
Trustee and delivery by the Company, are valid and binding obligations
enforceable against the Company in accordance with their terms, entitled to
the benefit of the Indenture, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and subject to
such other exceptions as counsel shall request and as to which the Trustee
shall not reasonably object; and
(5) the amount of Debt Securities Outstanding of such series,
together with the amount of such Debt Securities, does not exceed any limit
established under the terms of this Indenture on the amount of Debt
Securities of such series that may be authenticated and delivered.
The Trustee shall not be required to authenticate such Debt Securities
and Coupons if the issuance of such Debt Securities and Coupons pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Debt Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary or permanent or
other definitive Bearer Security in global form) shall be dated as of the date
of original issuance of the first Debt Security of such series to be issued,
except as otherwise provided pursuant to Section 3.01 with respect to the Bearer
Securities of any series.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.08 together with a written statement (which need not
comply with Section 1.02) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global
-------------------------------------------------------
Notes for Definitive Bearer Securities; Global Notes Representing Registered
- ----------------------------------------------------------------------------
Securities.
- ----------
(a) Pending the preparation of definitive Registered Securities of
any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination for Registered Securities of such series, substantially of the
tenor of the definitive Registered Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Registered Securities may determine,
as conclusively evidenced by their execution of such Registered Securities.
Every such temporary Registered Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Registered Securities in lieu of which they are issued. In the case of any
series issuable
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as Bearer Securities, such temporary Debt Securities may be in global form,
representing such of the Outstanding Debt Securities of such series as shall be
specified therein.
Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.05 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of the
same series of authorized denominations and of a like Stated Maturity and like
terms and provisions; provided, however, that no definitive Bearer Security
-------- -------
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security (including a permanent
- -------- -------
Bearer Security in global form) shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section
3.03. Until so exchanged, the temporary Registered Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 3.01, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or CEDEL, as the case may be, for
credit to the account of the Company (in the case of sales of Bearer Securities
by the Company directly to investors) or the managing underwriter (in the case
of sales of Bearer Securities by the Company to underwriters) or such other
accounts as the Company or the managing underwriter, respectively, may direct.
On or after the date specified in or determined pursuant to the terms
of any temporary Global Note which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Note (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes in definitive form without
interest coupons. On or after the Exchange Date such temporary Global Note
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, at its principal office in London (or at such other
place specified outside the United States pursuant to Section 3.01) and
following such surrender, the Trustee shall (1) endorse the temporary Global
Note to reflect the reduction of its principal amount by an equal aggregate
principal amount of such Debt Security, (2) endorse the applicable permanent
Global Note, if any, to reflect the initial amount, or an increase in the amount
of Debt Securities represented thereby, (3) manually authenticate such
definitive Debt Securities (including any permanent Global Note), (4) deliver
such definitive Debt Securities to the Holder thereof or, if such definitive
Debt Security is a permanent Global Note, deliver such permanent Global Note to
the Common Depositary to be held outside the United States for the
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accounts of the Euro-clear Operator or CEDEL, as the case may be, for credit to
the respective accounts at Euro-clear Operator or CEDEL, as the case may be,
designated by or on behalf of the beneficial owners of such Debt Securities (or
to such other accounts as they may direct) and (5) redeliver such temporary
Global Note to the Common Depositary, unless such temporary Global Note shall
have been cancelled in accordance with Section 3.08 hereof; provided, however,
-------- -------
that, unless otherwise specified in such temporary Global Note, upon such
presentation by the Common Depositary, such temporary Global Note shall be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by the Euro-clear Operator, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities
(including any permanent Global Note), and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL, as to the portion of such temporary
Global Note held for its account then to be exchanged for definitive Debt
Securities (including any permanent Global Note), each substantially in the form
set forth in Exhibit B to this Indenture. Each certificate substantially in the
form of Exhibit B hereto of the Euro-clear Operator or CEDEL, as the case may
be, shall be based on certificates of the account holders listed in the records
of the Euro-clear Operator or CEDEL, as the case may be, as being entitled to
all or any portion of the applicable temporary Global Note. An account holder
of the Euro-clear Operator or CEDEL, as the case may be, desiring to effect the
exchange of an interest in a temporary Global Note for an interest in definitive
Debt Securities (including any permanent Global Note) shall instruct the
Euro-clear Operator or CEDEL, as the case may be, to request such exchange on
its behalf and shall deliver to the Euro-clear Operator or CEDEL, as the case
may be, a certificate substantially in the form of Exhibit A hereto and dated no
earlier than 10 days prior to the Exchange Date. Until so exchanged, temporary
Global Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities (including any permanent Global Note) of
the same series authenticated and delivered hereunder, except as to payment of
interest, if any.
The delivery to the Trustee by the Euro-clear Operator or CEDEL of any
certificate substantially in the form of Exhibit B hereto may be relied upon by
the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee definitive Debt Securities in an aggregate principal amount equal to the
principal amount of such temporary Global Note, executed by the Company. At any
time, on or after the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the request of or on
behalf of the beneficial owner, a Debt Security represented by a temporary
Global Note or a permanent Global Note, as the case may be, may be exchanged, in
whole or from time to time in part, for definitive Debt Securities without
charge and the Trustee shall authenticate and deliver, in exchange for each
portion of such temporary Global Note or such permanent Global Note, an equal
aggregate principal amount of definitive Debt Securities of the same series of
authorized denominations and of a like Stated Maturity and with like terms and
conditions, as the portion of such temporary Global Note or such permanent
Global Note to be exchanged, which, unless the Debt Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, as
contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that definitive Bearer Securities
-------- -------
shall be delivered in exchange for a portion of the temporary Global Note or the
permanent Global Note only in compliance with the requirements of the second
preceding paragraph. On or prior to the forty-fifth day following receipt by
the Trustee of such notice with respect to a Debt Security, or, if such day is
not a Business Day, the next succeeding Business Day, the temporary Global Note
or the permanent Global Note, as the case may be, shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent
24
<PAGE>
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Debt Securities without charge following such surrender, upon the
request of the Euro-clear Operator or CEDEL, as the case may be, and the Trustee
shall (1) endorse the applicable temporary Global Note or the permanent Global
Note to reflect the reduction of its principal amount by the aggregate principal
amount of such Debt Security, (2) cause the terms of such Debt Security and
Coupons, if any, to be entered on a definitive Debt Security, (3) manually
authenticate such definitive Debt Security, and (4) if a Bearer Security is to
be delivered, deliver such definitive Debt Security outside the United States to
the Euro-clear Operator or CEDEL, as the case may be, for or on behalf of the
beneficial owner thereof, in exchange for a portion of such temporary Global
Note or the permanent Global Note.
Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Note or the permanent Global Note,
except that a Person receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Debt Securities in person at the
offices of the Euro-clear Operator or CEDEL. Definitive Debt Securities in
bearer form to be delivered in exchange for any portion of a temporary Global
Note or the permanent Global Note shall be delivered only outside the United
States. Notwithstanding the foregoing, in the event of redemption or
acceleration of all or any part of a temporary Global Note prior to the Exchange
Date, a permanent Global Note or definitive Bearer Securities, as the case may
be, will not be issuable in respect of such temporary Global Note or such
portion thereof, and payment thereon will instead be made as provided in such
temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary Global
Note or the permanent Global Note shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.01, interest payable on such temporary
Global Note on an Interest Payment Date for Debt Securities of such series
occurring prior to the applicable Exchange Date shall be payable to the
Euro-clear Operator or CEDEL on such Interest Payment Date upon delivery by the
Euro-clear Operator or CEDEL to the Trustee of a certificate or certificates
substantially in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary Global Note on such Interest Payment Date and who have each delivered
to the Euro-clear Operator or CEDEL, as the case may be, a certificate
substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a temporary Global Note or the permanent
Global Note shall not bear a coupon for any interest which shall theretofore
have been duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by
the Company to the Trustee in accordance with the provisions of this
Section 3.04.
With respect to Exhibits A and B to this Indenture, the Company may,
in its discretion and if required or desirable under applicable law or as set
forth in any Board Resolution or Supplemental Indenture with respect to any
Series of Debt Securities, substitute one or more other forms of such exhibits
for such exhibits, eliminate the requirement that any or all certificates be
provided, or change the time that any certificate may be required, provided that
such substitute form or forms or notice of elimination or change of such
certification requirement have theretofore been delivered to the Trustee with a
Company Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee.
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(c) If the Company shall establish pursuant to Section 3.01 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 3.03 and the Company Order with respect to
such series, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially to
the following effect: "This Debt Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary, unless and until this Debt Security is exchanged in whole
or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.05,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. Depositary for such series to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor U.S.
Depositary for such series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Debt Securities of such series.
If a successor U.S. Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
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If specified by the Company pursuant to Section 3.01 with respect to
Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, of any authorized denomination
as requested by such Person in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Note and the aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be cancelled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
Section 3.05. Registration, Transfer and Exchange.
-----------------------------------
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively 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 and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
-------- -------
the Company may appoint co-Security Registrars or the terms of any series of
Debt Securities may provide otherwise.
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, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.04 and this Section 3.05, at
the option of the Holder, Registered Securities of any series may be exchanged
for other Registered Securities of the same series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
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(b) If and to the extent specified pursuant to Section 3.01, the
provisions of this Section 3.05(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.01 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
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 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 is 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 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 12.03, 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 exchange for a Registered Security
of the same series and of a like Stated Maturity and with like terms and
conditions after the close of business at such office or agency on (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 proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), 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. The Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Security or Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.01, in no
event may Registered Securities, including Registered Securities received in
exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange of Debt
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Debt Securities
surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
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No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.04(b) or 3.06. The Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration, transfer or
exchange of Debt Securities, other than those 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 register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Debt Securities of such series selected for redemption under Section 13.03
and ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities.
-----------------------------------------------------
If (i) any mutilated Debt Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee at its Corporate Trust Office (in the
case of Registered Securities) or at its principal London office (in the case of
Bearer Securities), or (ii) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Debt Security or any
Coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any Paying Agent
harmless, and neither the Company nor the Trustee receives notice that such Debt
Security or Coupon has been acquired by a bona fide purchaser, then the Company
shall execute and upon Company Request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Debt Security or in exchange for the Coupon Security to which such
mutilated, destroyed, lost or stolen Coupon appertained, a new Debt Security of
the same series of like Stated Maturity and with like terms and conditions and
like principal amount, bearing a number not contemporaneously Outstanding, and,
in the case of a Coupon Security, with such Coupons attached thereto that
neither gain nor loss in interest shall result from such exchange or
substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or Coupon in accordance with its terms; provided, however,
-------- -------
that principal of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 12.03, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01 or except as otherwise provided in
this Section 3.06, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or Coupon of any series issued pursuant to
this Section shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security or
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 Debt Securities or Coupons of that series duly issued hereunder.
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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 Debt Securities or Coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 3.01 with respect to the Debt
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.01 or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if provided pursuant to
Section 3.01, by wire transfer to an account designated by the Registered
Holder.
(b) Interest on any Coupon Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Holder of the Coupon which has matured on such Interest Payment Date upon
surrender of such Coupon on such Interest Payment Date at the principal London
office of the Trustee or at such other Place of Payment outside the United
States specified pursuant to Section 3.01.
Interest on any Bearer Security (other than a Coupon Security) which
is payable and is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Holder of the Bearer Security upon presentation of
such Bearer Security and notation thereon on such Interest Payment Date at the
principal London office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 3.01.
Unless otherwise specified pursuant to Section 3.01, at the direction
of the Holder of any Bearer Security or Coupon payable in Dollars, payment on
such Bearer Security or Coupon will be made by check drawn on a bank in The City
of New York or, if agreeable to the Trustee, by wire transfer to a Dollar
account maintained by such Holder outside the United States. If such payment at
the offices of all Paying Agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section 3.01, at
the direction of the Holder of any Bearer Security or Coupon payable in a
Foreign Currency, payment on such Bearer Security or Coupon will be made by a
check drawn on a bank outside the United States or by wire transfer to an
appropriate account maintained by such Holder outside the United States. Except
as provided in this paragraph, no payment on any Bearer Security or Coupon will
be made by mail to an address in the United States or by wire transfer to an
account in the United States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
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<PAGE>
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Registered Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money in the Currency or Currency unit in which the Debt Securities of such
series are payable (except as otherwise specified pursuant to Sections 3.01
or 3.10) 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 prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which date 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 the
Holders of such Registered Securities at their addresses as they appear 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 such
Registered Securities (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).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered 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.
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 1.05
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
Section 3.08. Cancellation.
------------
Unless otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange or credit against any sinking fund and all
Coupons surrendered for payment or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Registered Securities
and matured Coupons so delivered
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<PAGE>
shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured
Coupons so delivered shall be held by the Trustee and, upon instruction by the
Company Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured Coupons held for reissuance may be reissued only in exchange for
Bearer Securities of the same series and of like Stated Maturity and with like
terms and conditions pursuant to Section 3.05 or in replacement of mutilated,
lost, stolen or destroyed Bearer Securities of the same series and of like
Stated Maturity and with like terms and conditions or the related Coupons
pursuant to Section 3.06. All Bearer Securities and unmatured Coupons held by
the Trustee pending such cancellation or reissuance shall be deemed to be
delivered for cancellation for all purposes of this Indenture and the
Securities. The Company may at any time deliver to the Trustee for cancellation
any Debt Securities or Coupons 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 Debt Securities previously authenticated hereunder which the
Company has not issued, and all Debt Securities or Coupons so delivered shall be
promptly cancelled by the Trustee. No Debt Securities or Coupons shall be
authenticated in lieu of or in exchange for any Debt Securities or Coupons
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Debt Securities and Coupons held by the Trustee shall
be delivered to the Company upon Company Request. The acquisition of any Debt
Securities or Coupons by the Company shall not operate as a redemption or
satisfaction of the indebtedness represented thereby unless and until such Debt
Securities or Coupons are surrendered to the Trustee for cancellation. In the
case of any temporary Global Note which shall be destroyed if the entire
aggregate principal amount of the Debt Securities represented thereby has been
exchanged, the certificate of destruction shall state that all certificates
required pursuant to Section 3.04 hereof and substantially in the form of
Exhibit B hereto, to be given by the Euro-clear Operator or CEDEL, have been
duly presented to the Trustee by the Euro-clear Operator or CEDEL, as the case
may be. Permanent Global Notes shall not be destroyed until exchanged in full
for definitive Debt Securities or until payment thereon is made in full.
Section 3.09. Computation of Interest.
-----------------------
Except as otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.10. Currency of Payments in Respect of Debt Securities.
--------------------------------------------------
(a) Except as otherwise specified pursuant to Section 3.01 for Bearer
Securities of any series, payment of the principal of (and premium, if any) and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
(b) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (c) below or the Holders of
which have not made the election provided for in paragraph (c) below, except as
provided in paragraph (e) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.01 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance satisfactory to the
Trustee, not later than the close of business on
32
<PAGE>
the Election Date 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 (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 or 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 notice of
redemption has been given by the Company pursuant to Article Thirteen). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee by 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 paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.01, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice specifying, in the Currency in which each series of
the Registered Securities is payable, the respective aggregate amounts of
principal of (and premium, if any) and any interest on the Registered Securities
to be paid on such payment date, specifying the amounts 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 (c) above. If the election referred to in paragraph (c)
above has been provided for pursuant to Section 3.01 and if at least one Holder
has made such election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee an Exchange Rate Officer's
Certificate in respect of the Currency payments to be made on such payment date.
The Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (c) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the "Valuation Date") immediately preceding
each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other Currency unit in which any of the Debt Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, the ECU or such
other Currency unit occurring after the last date on which such Foreign
Currency, the ECU or such other Currency unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by the Trustee or
any Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in the
case of a Currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Currency Determination Agent, if any, or, if there
shall not be a Currency Determination Agent, then by the Trustee, in the manner
provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (c) 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. 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 (e) of this Section 3.10.
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(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent, if any, or, if there shall not
be a Currency Determination Agent, then by the Trustee, 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.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Currency Determination Agent, if any, or, if there shall not be a
Currency Determination Agent, then by the Trustee, and subject to the provisions
of paragraph (i) below, shall be the sum of each amount obtained by converting
the Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for such Component Currency on the Valuation Date with respect to
each payment.
(i) For purposes of this Section 3.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant Currency unit, including, but not limited to,
the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single Currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more Currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more Currencies with
appropriate Dollar equivalents 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 on such date,
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, 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 record date with respect to any payment
date, and with respect to the Maturity shall mean the record date (if
within 16 or fewer days prior to the Maturity) immediately preceding the
Maturity, and with respect to any series of Debt Securities whose record
date immediately preceding the Maturity is more than 16 days prior to the
Maturity or any series of Debt Securities for which no record dates are
provided with respect to interest payments, shall mean the date which is 16
days prior to the Maturity.
(j) All decisions and determinations of the Trustee or the Currency
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the
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Currency Unit and the Market Exchange Rate 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 and all Holders of the Debt Securities
denominated or payable in the relevant Currency. In the event of a Conversion
Event with respect to a Foreign Currency, the Company, after learning thereof,
will immediately give written notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section 1.05 to
the Holders) specifying the Conversion Date. In the event of a Conversion Event
with respect to the ECU or any other Currency unit in which Debt Securities are
denominated or payable, the Company, after learning thereof, will immediately
give notice thereof to the Trustee (and the Trustee will promptly thereafter
give written notice in the manner provided in Section 1.05 to the Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above, the
Company, after learning thereof, will similarly give written notice to the
Trustee. The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Currency
Determination Agent, if any, and shall not otherwise have any duty or obligation
to determine such information independently.
(k) For purposes of any provision of the Indenture where the Holders
of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Debt Securities denominated in a Foreign Currency will be the amount in Dollars
based upon the Market Exchange Rate for Debt Securities of such series, as of
the date for determining whether the Holders entitled to perform such Act have
performed it, or as of the date of such decision or determination by the
Trustee, as the case may be.
Section 3.11. Judgments.
---------
If for the purpose of obtaining a judgment in any court with respect
to any obligation of the Company hereunder or under any Debt Security, it shall
become necessary to convert into any other Currency any amount in the Currency
due hereunder or under such Debt Security, then such conversion shall be made at
the Market Exchange Rate as in effect on the date the Company shall make payment
to any Person in satisfaction of such judgment. If pursuant to any such
judgment, conversion shall be made on a date other than the date payment is made
and there shall occur a change between such Market Exchange Rate and the Market
Exchange Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is equal to the amount in such other Currency which, when converted at the
Market Exchange Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Debt Security. Any amount due from the
Company under this Section 3.11 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Debt Security. In no event, however, shall the
Company be required to pay more in the Currency or Currency unit due hereunder
or under such Debt Security at the Market Exchange Rate as in effect when
payment is made than the amount of Currency stated to be due hereunder or under
such Debt Security so that in any event the Company's obligations hereunder or
under such Debt Security will be effectively maintained as obligations in such
Currency, and the Company shall be entitled to withhold (or be reimbursed for,
as the case may be) any excess of the amount actually realized upon any such
conversion over the amount due and payable on the date of payment or
distribution.
Section 3.12. Exchange Upon Default.
---------------------
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If default is made in the payments referred to in Section 12.01, the
Company hereby undertakes that upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof the Company will issue and the Trustee will authenticate
and deliver to the bearer of such permanent Global Note duly executed and
authenticated definitive Debt Securities with the same issue date and maturity
date as set out in such permanent Global Note.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of such Debt Securities herein
expressly provided for and rights to receive payments of principal (and premium,
if any) and interest on such Debt Securities) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such series
theretofore authenticated and delivered (other than (i) Debt Securities and
Coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06, (ii) Coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not
required or has been waived under Section 3.05, (iii) Coupons appertaining
to Bearer Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
13.06, and (iv) Debt Securities and Coupons of such 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 12.04) have been
delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice by the Trustee in the name, and at the expense, of the
Company,
and the Company, either complies with any other condition or terms
specified pursuant to Section 3.01, or if not so specified in the case of
(i), (ii) or (iii) of this subclause (B), has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust for such
purpose an
36
<PAGE>
amount in the Currency in which such Debt Securities are denominated
(except as otherwise provided pursuant to Section 3.01 or 3.10) sufficient
to pay and discharge the entire indebtedness on such Debt Securities for
principal (and premium, if any) and interest to the date of such deposit
(in the case of Debt Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be; provided,
--------
however, in the event a petition for relief under the Federal bankruptcy
-------
laws, as now or hereafter constituted, or any other applicable Federal or
state bankruptcy, insolvency or other similar law, is filed with respect to
the Company within 91 days after the deposit and the Trustee is required to
return the deposited money to the Company, the obligations of the Company
under this Indenture with respect to such Debt Securities shall not be
deemed terminated or discharged;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered to the Trustee 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 such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel or
a ruling by the Internal Revenue Service to the effect that Holders of the
Debt Securities of the series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.01, 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
12.04, shall survive. If, after the deposit referred to in Section 4.01 has
been made, (x) the Holder of a Debt Security is entitled to, and does, elect
pursuant to Section 3.10(c), to receive payment in a Currency other than that in
which the deposit pursuant to Section 4.01 was made, or (y) if a Conversion
Event occurs with respect to the Currency in which the deposit was made or
elected to be received by the Holder pursuant to Section 3.10(c), then the
indebtedness represented by such Debt Security shall be fully discharged to the
extent that the deposit made with respect to such Debt Security shall be
converted into the Currency in which such payment is made.
Section 4.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 12.04, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
Coupons, if any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
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ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
-----------------
"Event of Default" wherever used herein with respect to Debt
Securities of any series 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, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Debt Security or
any payment with respect to the Coupons, if any, of such series 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 (and premium, if any,
on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which expressly has been included
in this Indenture solely for the benefit of Debt Securities of a series
other than such series), and continuance of such default or breach for a
period of 30 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 30% in principal amount of the Outstanding Debt
Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal or State bankruptcy, insolvency or other
similar law, or a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or appointing a
receiver, liquidator, assignee, custodian, 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 60 consecutive days; or
(6) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, or
the consent by it to the entry of an order for relief in an involuntary
case under any such law or to the appointment of a receiver, liquidator,
assignee, custodian, 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 its creditors, or the admission by it
in writing of its inability to pay its debts generally as they
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become due, or the taking of corporate action by the Company in furtherance
of any such action; or
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Debt Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such 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) plus accrued and unpaid interest (and premium, if
payable) shall become immediately due and payable. Upon payment of such amount
in the Currency in which such Debt Securities are denominated (except as
otherwise provided pursuant to Sections 3.01 or 3.10), all obligations of the
Company in respect of the payment of principal of the Debt Securities of such
series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made 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 Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Debt Securities are denominated (except as otherwise
provided pursuant to Section 3.01 or 3.10) sufficient to pay
(A) all overdue installments of interest on all Debt Securities or
all overdue payments with respect to any Coupons of such series,
(B) the principal of (and premium, if any, on) any Debt Securities of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest on each Debt Security of
such series or upon overdue payments on any Coupons of such
series at the Overdue Rate, 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; provided, however, that all
-------- -------
sums payable under this clause (D) shall be paid in Dollars;
and
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(2) All Events of Default with respect to Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of
such series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Debt Security or any payment with respect to any Coupons when such
interest or payment becomes due and payable and such default continues for
a period of 30 days,
(2) default is made in the payment of principal of (or premium, if
any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due pursuant to the
terms of the Debt Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt 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 Debt Securities and
Coupons of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
40
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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 proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and Coupons, if any, of a particular
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
if the Debt Securities of such series are Discount Securities, such portion
of the principal amount as may be due and payable with respect to such
series pursuant to a declaration in accordance with Section 5.02) (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities and Coupons of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders of such Debt Securities and Coupons 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 receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the 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 any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
-----------------------------------------------------
Securities.
- ----------
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Debt Securities or Coupons in respect of which such judgment
has been recovered.
41
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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 (and premium,
if any) or interest, upon presentation of the Debt Securities or Coupons of any
series in respect of which money has been collected and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due 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 on the Debt Securities or
Coupons of such series, 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 Debt Securities
or Coupons for principal (and premium, if any) and interest, respectively;
and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.07. Limitation on Suits.
-------------------
No Holder of any Debt Security or Coupon of any series 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 such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such 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
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 Debt Securities of such 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 such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, 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. For the protection and enforcement of the provisions of this Section
5.07, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
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Section 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or of any 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 3.07) interest on such Debt Security or Coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
Coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment and interest thereon, and such
right shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder 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 any
acquiescence therein. Every right and remedy given by this Indenture 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 Debt
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 Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 6.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceeding so directed would be
43
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unjustly prejudicial to the Holders of Debt Securities of such series not
joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of any such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the Debt
Securities of such series, or
(2) in respect of a covenant or provision hereof which pursuant to
Article Eleven cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of such series 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 the Debt Securities of such series under this Indenture, but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security or Coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on such Debt Security or the
payment of any Coupon on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or Coupon (or, in the case of redemption, on or
after the Redemption Date).
Section 5.15. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not
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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 the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt Securities of
any series has occurred and is continuing, the Trustee shall, with respect to
the Debt Securities of such series, exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Debt Securities of
any series in good faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding Debt Securities of such
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; and
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(4) the Trustee shall not be required 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 with
respect to Debt Securities or Coupons, if any, of any series, the Trustee shall
give notice to all Holders of Debt Securities and Coupons of such series of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the
-------- -------
payment of the principal of (or premium, if any) or interest on any Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt 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 Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Debt Securities and of Coupons 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 Debt Securities of such
series no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Debt Securities of such series.
Notice given pursuant to this Section 6.02 shall be transmitted by
mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have within
two years preceding such transmission, filed their names and addresses with
the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture.
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, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
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(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of any series 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 or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
Section 6.04. Not Responsible for Recitals or Issuance of Debt
------------------------------------------------
Securities.
- ----------
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities or Coupons, if any, of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Debt Securities or the proceeds thereof.
Section 6.05. May Hold Debt Securities.
------------------------
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities or 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, Paying Agent, Security Registrar or such other agent.
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Section 6.06. Money Held in Trust.
-------------------
Money in any Currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
Section 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
in Dollars 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 in Dollars 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 in Dollars the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Debt Securities
and Coupons, if any, upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of amounts due on
the Debt Securities and Coupons.
The obligations of the Company under this Section 6.07 to compensate
and indemnify the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness under this Indenture and shall survive the
satisfaction and discharge of this Indenture.
Section 6.08. Disqualification; Conflicting Interests.
---------------------------------------
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section with respect to the Debt Securities of any series, then,
within 90 days after ascertaining that it has such conflicting interest, and if
the default (as hereinafter defined) to which such conflicting interest relates
has not been cured or duly waived or otherwise eliminated before the end of such
90-day period, the Trustee shall either eliminate such conflicting interest or,
except as otherwise provided below, resign with respect to the Debt Securities
of such series, and the Company shall take prompt steps to have a successor
appointed, in the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Debt Securities
of any series, the Trustee shall, within 10 days after
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the expiration of such 90-day period, transmit to all Holders of Debt Securities
of such series notice of such failure.
Notice given pursuant to this Section 6.08(b) shall be transmitted by
mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Debt Securities of any series,
if there shall exist an Event of Default (as such term is defined herein, but
exclusive of any period of grace or requirement of notice) with respect to such
Debt Securities and
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Debt Securities of any series other than that series or is
trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of the
Company are outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Debt Securities
issued under this Indenture, provided that there shall be excluded from the
operation of this paragraph this Indenture with respect to the Debt
Securities of any series other than that series and any other indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures (and
all series of securities issuable thereunder) are wholly unsecured and
rank equally and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to the Debt Securities of
such series and one or more other series or the provisions of such
other indenture or indentures which are so likely to involve a
material conflict of interest as to make it necessary, in the public
interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect to the Debt
Securities of such series and such other series or under such other
indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Debt Securities of such series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify
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the Trustee from acting as such under this Indenture with respect to
the Debt Securities of such series and such other series or under such
other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both, of the
Company but may not be at the same time an executive officer of both the
Trustee and the Company; (ii) if and so long as the number of directors of
the Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary or in any other similar capacity, or, subject to the provisions
of paragraph (l) of this subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the Debt
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as collateral
security for an obligation which is in default, 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns 10% or
more of the voting securities of, or controls directly or indirectly or is
under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of or holds as collateral
security for an obligation which is in default, 10% or more of any class of
security of any person who, to the knowledge of the Trustee, owns 50% or
more of the voting securities of the Company;
(9) the Trustee owns, on the date of such Event of Default or any
anniversary of such Event of Default while such Event of Default remains
outstanding, in the capacity of executor, administrator, testamentary or
inter vivos trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25% or more of the voting securities, or
of any class of
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security, of any person, the beneficial ownership of a specified percentage
of which would have constituted a conflicting interest under paragraph (6),
(7) or (8) of this subsection. As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions of
the preceding sentence shall not apply, for a period of not more than two
years from the date of such acquisition, to the extent that such securities
included in such estate do not exceed 25% of such voting securities or 25%
of any such class of security. Promptly after the dates of any such Event
of Default and annually in each succeeding year that such Event of Default
continues, the Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of such dates. If
the Company fails to make payment in full of the principal of (or premium,
if any) or interest on any of the Debt Securities when and as the same
becomes due and payable, and such failure continues for 30 days thereafter,
the Trustee shall make a prompt check of its holdings of such securities in
any of the above-mentioned capacities as of the date of the expiration of
such 30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the Trustee,
with sole or joint control over such securities vested in it, shall be
considered as though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraphs (1), (3),
(4), (5) or (6) of Section 6.13(b) of this Indenture, the Trustee shall be
or shall become a creditor of the Company.
For the purposes of paragraph (1) of this subsection, the term "series
of securities" or "series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such series may vote
to direct the Trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another series; provided, that "series of
--------
securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (iii) the Trustee shall not
be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (C) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.
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(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the Company
means every person who, within one year prior to the time as of which the
determination is made, has purchased from the Company with a view to, or
has offered or sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has participated
or has had a direct or indirect participation in any such undertaking, or
has participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include a
person whose interest was limited to a commission from an underwriter or
dealer not in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" means any director of a corporation, or any
individual performing similar functions with respect to any organization
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an estate, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangements whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Debt Securities of
any series.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization, whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
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(3) The term "amount", when used with regard to securities means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
-------- -------
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
-------- -------
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes; and provided, further, that, in
-------- -------
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
(f) Except in the case of a default in the payment of the principal
of or interest on any Debt Security of any series, or in the payment of any
sinking or purchase fund installment, the Trustee shall not be required to
resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for
hearing thereon, that:
(1) the Event of Default may be cured or waived during a reasonable
period and under the procedures described in such application; and
(2) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
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Section 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $75,000,000, subject to supervision or examination by Federal, State
or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08(a) with
respect to the Debt Securities of any series after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a Debt
Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to the Debt Securities of any series and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any 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 for the Debt Securities of such series.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt 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 Debt 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 Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt 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, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 5.14, 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 Debt
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.05 to the
Holders of Debt Securities of such series. Each notice shall include the name
of the successor Trustee with respect to the Debt Securities of such series and
the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, each 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
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt 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 Debt 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 Debt 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
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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 any 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 other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any 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 Debt 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 Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 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 that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Debt 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 Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
(a) Subject to subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within three months prior to a default, as defined in subsection (c)
of this Section, or subsequent to such default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the Debt
Securities and of the Coupons, if any, and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such
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reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of any
right of set-off which the Trustee could have exercised if a voluntary or
involuntary case had been commenced in respect of the Company under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law
upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
------- -------
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings or reorganization pursuant to
the Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three months, or
(D) to receive payment on any claim referred to in paragraph (B) or
(C) against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal bank-
ruptcy laws, as now or hereafter constituted or any other applicable Federal
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or State bankruptcy, insolvency or other similar law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for reorganization pursuant
to the Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, whether
such distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee and the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claim, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three-month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the Lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
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(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) The acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of
this Section.
(c) for the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Debt Securities or upon the
other indenture securities when and as such principal or interest becomes
due and payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks and payable upon demand.
(4) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the Debt Securities.
Section 6.14. Appointment of Authenticating Agent.
-----------------------------------
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and
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subject to its direction in connection with the authentication and delivery of
each series of Debt Securities for which it is serving as Trustee. Debt
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by such Trustee. Wherever reference is
made in this Indenture to the authentication and delivery of Debt Securities of
any series by the Trustee for such series or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee for such series by an Authenticating Agent for
such series and a Certificate of Authentication executed on behalf of such
Trustee by such Authenticating Agent, except that only the Trustee may
authenticate Debt Securities upon original issuance and pursuant to Section 3.06
hereof. Such Authenticating Agent shall at all times be a corporation organized
and doing business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $10,000,000 and subject to supervision
or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for purposes of
this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more or all series of Debt Securities, the Trustee for such series shall
upon Company Request appoint a successor Authenticating Agent, and the Company
shall provide notice of such appointment to all Holders of Debt Securities of
such series in the manner and to the extent provided in Section 1.05. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. The Trustee for the Debt Securities of such series agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be
reimbursed for such payment, subject to the provisions of Section 6.07. The
Authenticating Agent for the Debt Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee for such series.
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If an appointment with respect to one or more series is made pursuant
to this Section, the Debt 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 series of Debt Securities issued under the within
mentioned Indenture.
--------------------------------
--------------------------------
As Trustee
By:________________________
As Authenticating Agent
By:________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders.
- -------
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.01 if the Registered Securities of such series do not bear
interest), a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Registered Holders as of the date 15 days next
preceding each such Regular Record Date (or such semi-annual dates, as the case
may be); and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
- -------- -------
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the Holders of Bearer Securities of all series; provided, however,
-------- -------
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
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Section 7.02. Preservation of Information; Communication to Holders.
-----------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.01
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.03(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the Holders obtained from such
information since the delivery of the next previous list, if any, destroy any
list delivered to itself as Trustee which was compiled from information received
by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.03(c)(2).
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders of
Debt Securities of such series or of all Debt Securities, as the case may
be, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 7.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written request of such applicants,
mail to the Holders of Debt Securities of such series or all Holders, as the
case may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.02(a), a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Debt Securities of such series or all Holders, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the
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objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Debt Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 7.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
of any material pursuant to a request made under Section 7.02(b).
Section 7.03. Reports by Trustee.
------------------
(a) Within 60 days after January 15 of each year, commencing January
15, 1996, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as Trustee, in the manner hereinafter provided in this Section 7.03, a
brief report dated such date with respect to any of the following events which
may have occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.08(c) of this
Indenture;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Debt Securities of such series, on any property or
funds held or collected by it as Trustee, except that the Trustee shall not
be required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Outstanding Debt Securities of such series on the date of such
report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or any other obligor on the Debt
Securities of such series) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee has not
previously reported; and
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(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Debt Securities of such series, except action in
respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.02 (a)) for
which it acts as the Trustee, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debt Securities of such series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
subsection, except that the Trustee for each series shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Debt Securities of such
series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 7.03 shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the Security
Register;
(2) to such Holders of Bearer Securities of any series as have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection (b) of this
Section 7.03, to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the Trustee
in accordance with Section 7.02(a).
(d) 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 Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
------------------
Unless otherwise specified with respect to a particular series of Debt
Securities pursuant to Section 3.01, the Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended. Notwithstanding that the
Company may not be required to remain subject to the reporting requirements
of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended
or otherwise report on an annual and quarterly basis on forms provided for
such annual
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and quarterly reporting pursuant to rules and regulations promulgated by
the Commission, the Company shall continue to file with the Commission and
provide the Trustee and the Holders of each series Debt Securities with,
without cost to each Holder, (a) within 90 days after the end of each
fiscal year, annual reports on Form 10-K (or any successor or comparable
form) containing the information required to be contained therein (or
required in such successor or comparable form); (b) within 45 days after
the end of each of the first three fiscal quarters of each fiscal year,
reports on Form 10-Q (or any successor or comparable form); and (c)
promptly from time to time after the occurrence of an event required to be
therein reported, such other reports on Form 8-K (or any successor or
comparable form) containing the information required to be contained
therein (or required in any successor or comparable form); provided,
however, that the Company shall not be obligated to file such reports with
the Commission if the Commission does not permit such filings. The Company
will in all cases, without cost to each recipient, provide copies of such
information to the Holders of the Debt Securities of each series and, if
they are not permitted to file such reports with the Commission, shall make
available information to prospective purchasers and to securities analysts
and broker-dealers upon their request;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner and to
the extent provided in Section 7.03, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders.
---------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the
Outstanding Debt Securities of any series may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor thereof at
any meeting of such Holders duly called and
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held in accordance with the provisions of Article Nine, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of
Holders.
Section 8.02. Proof of Ownership; Proof of Execution of Instruments
-----------------------------------------------------
by Holder.
- ---------
The ownership of Registered Securities of any series shall be proved
by the Security Register for such series or by a certificate of the Security
Registrar for such series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state that on the date
thereof a Bearer Security bearing a specified identifying number or other mark
was deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 3.01, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
cancelled or paid.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of
the execution of a writing appointing an agent or proxy and of the execution of
any instrument by a Holder or his agent or proxy shall be sufficient and
conclusive in favor of the Trustee and the Company if made in the following
manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgements of deeds, that the person executing
such instrument acknowledged to him the execution thereof, or by an affidavit of
a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.06.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
Section 8.03. Persons Deemed Owners.
---------------------
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of the
principal of (and premium, if any) and (subject to Section 3.07) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security 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. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account
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thereof and for all other purposes whatsoever, whether or not such Bearer
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.
All payments made to any Holder, or upon his order, shall be valid, and, to the
extent of the sum or sums paid, effectual to satisfy and discharge the liability
for moneys payable upon such Debt Security or Coupon.
Section 8.04. Revocation of Consents; Future Holders Bound.
--------------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.02,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and, subject to the provisions of Section 5.08, upon
all future Holders of such Debt Security and all past, present and future
Holders of Coupons, if any, appertaining thereto and of any Debt Securities and
Coupons issued on transfer or in lieu thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security or Coupons or such other Debt Securities or Coupons.
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.
--------------------
A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Article Nine for any of
the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of
the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Outstanding Debt Securities of any one or more or all series, as the case
may be, under any other provision of this Indenture or under applicable
law.
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Section 9.02. Call of Meetings by Trustee.
---------------------------
The Trustee for any series may at any time call a meeting of Holders
of such series to take any action specified in Section 9.01, to be held at such
time or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders 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 to Holders of such series in the
manner and to the extent provided in Section 1.05. Such notice shall be given
not less than 10 days nor more than 90 days prior to the date fixed for the
meeting.
Section 9.03. Call of Meetings by Company or Holders.
--------------------------------------
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Debt Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 10 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 9.01, by giving notice thereof as provided in Section
9.02.
Section 9.04. Qualifications for Voting.
-------------------------
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
Section 9.05. Regulations.
-----------
Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of Debt
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.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.03, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Debt Securities of such series held or
represented by him; provided,
--------
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however, that no vote shall be cast or counted at any meeting in respect of any
- -------
Debt Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote other than by virtue of Outstanding Debt Securities of such series held
by him or instruments in writing duly designating him as the person to vote on
behalf of Holders of Debt Securities of such series. Any meeting of Holders
with respect to which a meeting was duly called pursuant to the provisions of
Section 9.02 or 9.03 may be adjourned from time to time by a majority of such
Holders present and the meeting may be held as so adjourned without further
notice.
Section 9.06. Voting.
------
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be taken
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 transmitted as provided in Section
9.02. The record shall show the serial numbers of the Debt Securities voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. No Delay of Rights by Meeting.
-----------------------------
Nothing contained in this Article Nine shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Debt Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge with or into or wind
up into (whether or not the Company is the surviving corporation) or sell,
assign, convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties
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and assets of the Company substantially as an entirety (the "successor
corporation") shall be a corporation organized and existing under the laws
of the United States or any State or territory thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if any) and
interest on all the Debt Securities and coupons, if any and the performance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with; and
(4) such other conditions as may be specified under Section 3.01 with
respect to any series of Debt Securities.
Section 10.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 10.01, the successor
corporation formed by such consolidation or into which the Company is merged or
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 corporation had been
named as the Company herein.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the rights
of the Company and the assumption by such successor of the covenants of the
Company contained herein and in the Debt Securities and Coupons, if any; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities and the Coupons, if any,
appertaining thereto (and if such covenants are to be for the benefit of
less than all series, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company; or
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(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such
Events of Default are expressly being included solely to be applicable to
such series); or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Debt
Securities of any series in bearer form, registrable or not registrable,
and with or without Coupons, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations
or to permit the issuance of Debt Securities of any series in
uncertificated form, provided that any such action shall not adversely
--------
affect the interests of the Holders of Debt Securities of any series or any
related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Outstanding Debt Security or Coupon of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision and as to which such supplemental indenture
would apply; or
(6) to secure the Debt Securities or to provide that any of the
Company's obligations under any series of the Debt Securities shall be
guaranteed and the terms and conditions for the release or substitution of
such security or guarantee; or
(7) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four or Fifteen,
provided that any such action shall not adversely affect the interests of
--------
the Holders of Debt Securities of such series or any other series of Debt
Securities or any related Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities and Coupons, if
any, of any series as permitted by Sections 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of Debt
Securities 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
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, to eliminate any conflict between the terms hereof and the Trust
Indenture Act or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture; provided such other provisions shall not
--------
adversely affect the interests of the Holders of Outstanding Debt
Securities or Coupons, if any, of any series created prior to the execution
of such supplemental indenture in any material respect.
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Section 11.02. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, 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 under this Indenture of such
Debt Securities and Coupons, if any; provided, however, that no such
-------- -------
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby,
(1) conflict with the required provisions of the Trust Indenture Act;
(2) except as specifically provided with respect to any series of
Debt Securities pursuant to Section 3.01, (a) change the Stated Maturity of
the principal of, or installment of interest, if any, on, any Debt
Security, or reduce the principal amount thereof or the interest thereon or
any premium payable upon redemption thereof (provided that a requirement to
offer to repurchase Debt Securities shall not be deemed a redemption for
this purpose), or change the Stated Maturity of or reduce the amount of any
payment to be made with respect to any Coupon, or change the Currency or
Currencies in which the principal of (and premium, if any) or interest on
such Debt Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.02, or reduce the amount of, or postpone the date fixed for, any payment
under any sinking fund or analogous provisions for any Debt Security, or
impair the right to institute suit for the enforcement of any payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or limit the obligation of the Company to
maintain a paying agency outside the United States for payment on Bearer
Securities as provided in Section 12.03, or adversely affect the right to
convert any Debt Security into shares of Common Stock of the Company as may
be provided pursuant to Section 3.01; or
(3) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
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
(4) modify any of the provisions of this Section, Section 5.13 or
Section 12.09, 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 Debt Security of each
series 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 and
Section 12.09, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 11.01(7).
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.
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A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons 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 Debt securities and Coupons, if any, of any other
series.
Section 11.03. 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 adversely affects
the Trustee's own rights, duties or immunities under this Indenture or otherwise
in a material way.
Section 11.04. 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 Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 11.05. 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 11.06. Reference in Debt Securities to Supplemental
--------------------------------------------
Indentures.
- ----------
Debt Securities and Coupons, if any, 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 shall so determine, new Debt Securities and Coupons
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities and Coupons of such series.
Section 11.07. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the appropriate
Trustee of any supplemental indenture pursuant to Section 11.02, the Company
shall transmit, in the manner and to the extent provided in Section 1.05, to all
Holders of any series of the Debt Securities affected thereby, a notice setting
forth in general terms the substance of such supplemental indenture.
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ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Debt Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.06, 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. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.01, the interest, if any, due in respect of any temporary Global
Note or permanent Global Note, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Debt Security,
shall be payable only upon presentation of such Debt Security to the Trustee for
notation thereon of the payment of such interest.
Section 12.02. Officer's Certificate as to Default.
-----------------------------------
Unless otherwise specifically provided for with respect to any series
of Debt Securities under Section 3.01, the Company will deliver to the Trustee,
on or before a date not more than four months after the end of each fiscal year
of the Company (which on the date hereof is the calendar year) ending after the
date hereof, a certificate of the principal executive officer, principal
financial officer or principal accounting officer of the Company stating whether
or not to the best knowledge of the signer thereof the Company is in compliance
with all covenants and conditions under this Indenture, and, if the Company
shall be in default, specifying all such defaults and the nature thereof of
which such signer may have knowledge. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
Section 12.03. Maintenance of Office or Agency.
-------------------------------
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange, where Debt Securities of that series
that are convertible may be surrendered for conversion, if applicable, and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and this Indenture may be served. If Debt Securities of a series
are issuable as Bearer Securities, the Company will maintain (A) in the Borough
of Manhattan, The City and State of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange or redemption, where notices and demands to or upon the
Company in respect of the Debt Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related Coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Debt Securities of that
series and related Coupons may be presented and surrendered for payment
(including payment of any
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additional amounts payable on Debt Securities of that series, if so provided
pursuant to Section 3.01); provided, however, that if the Debt Securities of
-------- -------
that series are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland, 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 for the Debt Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Debt Securities of that series are listed on
such exchange, and (C) subject to any laws or regulations applicable thereto, in
a Place of Payment for that series located outside the United States an office
or agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange or redemption and where notices and demands to or upon
the Company in respect of the Debt Securities of that series and this Indenture
may be served. 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
Corporate Trust Office of the Trustee (in the case of Registered Securities) and
at the principal London office of the Trustee (in the case of Bearer
Securities), and the Company hereby appoints the Trustee as its agent to receive
all presentations, surrenders, notices and demands.
No payment of principal, premium or interest 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, that, if
-------- -------
the Debt Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security (including
any additional amounts payable on Securities of such series, if so provided
pursuant to Section 3.01) shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City and State of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium, interest
or additional amounts, as the case may be, at all offices or agencies 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.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 12.04. Money for Debt Securities; Payments To Be Held in
-------------------------------------------------
Trust.
- -----
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities and Coupons, if any, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Debt Securities of such 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) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities and Coupons, it will, by or on each due date of
the principal (and premium, if any)
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or interest on any Debt Securities of such series, deposit with any such Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless any such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect to any series of
Debt 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, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Debt
Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Debt Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company upon Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Debt
Security or Coupon 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 transmitted in the manner and to the
extent provided by Section 1.05, 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 notification, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 12.05. Corporate Existence.
-------------------
Subject to Article Ten, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
-------- -------
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company.
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Section 12.06. Purchase of Debt Securities by Company.
--------------------------------------
If the Debt 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 purchase any Debt 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 Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
Section 12.07. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 12.05, 12.07 and 12.08 (and,
if so specified pursuant to Section 3.01, any other covenant not set forth
herein and specified pursuant to Section 3.01 to be applicable to the Securities
of any series, except as otherwise provided pursuant to Section 3.01) with
respect to the Debt Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Debt Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent expressly so waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article.
------------------------
Debt Securities of any series which are redeemable before their Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Debt Securities of any series) in
accordance with this Article.
Section 13.02. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem (or, in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.03, the Company shall, at least 30 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Debt Securities of such series to be redeemed. In the
case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restrictions.
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Section 13.03. Selection by Trustee of Debt Securities to Be
---------------------------------------------
Redeemed.
- --------
Except in the case of a redemption in whole of the Bearer Securities
or the Registered Securities of such series, if less than all the Debt
Securities of any series are to be redeemed at the election of the Company, the
particular Debt Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding Debt
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Debt Securities of such series in a
denomination larger than the minimum authorized denomination for Debt Securities
of such series pursuant to Section 3.02 in the Currency in which the Debt
Securities of such series are denominated. The portions of the principal amount
of Debt Securities so selected for partial redemption shall be equal to the
minimum authorized denominations for Debt Securities of such series pursuant to
Section 3.02 in the Currency in which the Debt Securities of such series are
denominated or any integral multiple thereof, except as otherwise set forth in
the applicable form of Debt Securities. In any case when more than one
Registered Security of such series is registered in the same name, the Trustee
in its discretion may treat the aggregate principal amount so registered as if
it were represented by one Registered Security of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt 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 Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt security which has
been or is to be redeemed.
Section 13.04. Notice of Redemption.
--------------------
Notice of redemption 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,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.05. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by the
Company pursuant to provisions contained in this Indenture or the terms of
the Debt Securities of such series or a supplemental indenture establishing
such series, if such be the case, together with a brief statement of the
facts permitting such redemption,
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(4) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after said date,
(6) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or Coupons
will be deducted from the Redemption Price,
(7) the Place or Places of Payment where such Debt Securities are to
be surrendered for payment of the Redemption Price,
(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 this Redemption Date pursuant to Section 3.05(b) or
otherwise, the last date on which such exchanges may be made, and
(9) that the redemption is for a sinking fund, if such is the case.
Section 13.05. Deposit of Redemption Price.
---------------------------
On or prior to the Redemption Date for any Debt Securities, 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 12.04) an amount of money in the Currency or Currencies in
which such Debt Securities are denominated (except as provided pursuant to
Section 3.01) sufficient to pay the Redemption Price of such Debt Securities or
any portions thereof which are to be redeemed on that date.
Section 13.06. Debt Securities Payable on Redemption Date.
------------------------------------------
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Section 3.01
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption in accordance
with said notice, such Debt 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 at an office or agency located outside the United States (except as
otherwise provided in Section 12.03) and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of Coupons
for such interest; and provided, further, that, unless otherwise specified as
-------- -------
contemplated by Section 3.01, installments of interest on Registered Securities
which have a Stated Maturity on or prior to the Redemption Date for such Debt
Securities shall be payable according to the terms of such Debt Securities and
the provisions of Section 3.07.
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If any Debt 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 Debt Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the Holder of such Coupon shall surrender to any Paying Agent outside the United
States 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. 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.
Section 13.07. Debt Securities Redeemed in Part.
--------------------------------
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.01 (in the case of Registered
Securities) and at an office of the Trustee or such other office or agency of
the Company outside the United States as is specified pursuant to Section 3.01
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar 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
deliver to the Holder of such Debt Security without service charge, a new Debt
Security or Debt Securities of the same series, of like tenor and form, 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 Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt Securities as
aforesaid, may make a notation on such Debt Security of the payment of the
redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 3.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt
Securities of any series, the amount of any cash sinking fund payment may be
subject to reduction as provided in Section 14.02. Each sinking fund payment
shall be applied to the redemption of Debt Securities of any series as provided
for by the terms of Debt Securities of such series.
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Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with
----------------------------------------------------
Debt Securities.
- ---------------
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than sixteen months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Debt Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series which have been redeemed through
the application of mandatory sinking fund payments pursuant to the terms of the
Debt Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Debt Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value, provided that such Debt Securities shall not have been
--------
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
Section 14.03. Redemption of Debt Securities for Sinking Fund.
----------------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.01) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Debt Securities of such series pursuant to Section
14.02 and whether the Company intends to exercise its rights to make a permitted
optional sinking fund payment with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall be obligated to
make the cash payment or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Debt
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit Debt Securities as provided in Section 14.02 and
without the right to make any optional sinking fund payment with respect to such
series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to
the next sinking fund payment received by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 12.04) for such series and, together with such payment (or such amount
so segregated) shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys with respect to the Debt Securities of
any particular series held by the Trustee (or if the Company is acting as its
own Paying Agent, segregated and held in trust as provided in Section 12.04) on
the last
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sinking fund payment date with respect to Debt Securities of such series and not
held for the payment or redemption of particular Debt Securities of such series
shall be applied by the Trustee (or by the Company if the Company is acting as
its own Paying Agent), together with other moneys, if necessary, to be deposited
(or segregated) sufficient for the purpose, to the payment of the principal of
the Debt Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Debt Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 13.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.04. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 13.06.
On or before each sinking fund payment date, the Company shall pay to
the Trustee (or, if the Company is acting as its own Paying Agent, the Company
shall segregate and hold in trust as provided in Section 12.04) in cash a sum,
in the Currency or Currencies in which Debt Securities of such series are
denominated (except as provided pursuant to Sections 3.01 or 3.10), equal to the
principal and any interest accrued to the Redemption Date for Debt Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section.
Neither the Trustee nor the Company shall redeem any Debt Securities
of a series with sinking fund moneys or mail any notice of redemption of Debt
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any Debt
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the Debt
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Debt Securities if cash sufficient for that purpose shall be deposited with
the Trustee (or segregated by the Company) for that purpose in accordance with
the terms of this Article. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Debt Securities and Coupons, if any, of such series; provided,
--------
however, that in case such default or Event of Default shall have been cured or
- -------
waived as provided herein, such moneys shall thereafter be applied on or prior
to the next sinking fund payment date for the Debt Securities of such series on
which such moneys may be applied pursuant to the provisions of this Section.
ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. Applicability of Article.
------------------------
If, pursuant to Section 3.01, provision is made for the defeasance of
Debt Securities of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as
provided pursuant to Section 3.01) then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 3.01 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or Currencies or for Bearer Securities may be
specified pursuant to Section 3.01.
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Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government
----------------------------------------------------
Obligations.
- -----------
At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with respect to
Debt Securities of any series ("legal defeasance option") or (b) the Company
shall cease to be under any obligation to comply with any term, provision or
condition set forth in Section 10.01 with respect to Debt Securities of any
series (and, if so specified pursuant to Section 3.01, any other obligation of
the Company or restrictive covenant added for the benefit of such series
pursuant to Section 3.01) ("covenant defeasance option") at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Debt Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) which through the payment of
interest and principal 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 (iii) a combination of (i) and (ii), sufficient, in
the opinion (with respect to (i) and (ii)) of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of
principal (including any mandatory sinking fund payments) of and premium,
if any, and interest on, the Outstanding Debt Securities of such series on
the dates such installments of interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to the Debt
Securities of that series to have a conflicting interest as defined in
Section 6.08 and for purposes of the Trust Indenture Act with respect to
the Debt Securities of any series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) if the Debt Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel or a letter or other document from such
exchange to the effect that the Company's exercise of its option under this
Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit) which, with
notice or lapse of time or both, would become an Event of Default with
respect to the Debt Securities of such series shall have occurred and be
continuing on the date of such deposit and, with respect to the legal
defeasance option only, no Event of Default under Section 5.01(7) or
Section 5.01(8) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.01(7) or Section
5.01(8) shall have occurred and be continuing on the 91st day after such
date; and
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel or a ruling from the Internal Revenue Service to the effect that
the Holders of the Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance or Discharge.
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Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.01(7) or Section 5.01(8) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.01(7) or Section 5.01(8) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and interest on such Debt Securities when
such payments are due, (B) the Company's obligations with respect to the Debt
Securities of such series under Sections 3.04, 3.05, 3.06, 12.03 and 15.03 and
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that 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 under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company 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.
Section 15.03. Deposited Moneys and U.S. Government, Obligations to
----------------------------------------------------
Be Held in Trust.
- ----------------
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.02 in respect of Debt Securities of a series shall be
held in trust and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Debt Securities, of all sums due
and to become due thereon for principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
Section 15.04. Repayment to Company.
--------------------
The Trustee and any Paying Agent shall promptly pay or return to
the Company upon Company Request any moneys or U.S. Government Obligations held
by them at any time that are not required for the payment of the principal of
(and premium, if any) and interest on the Debt Securities of any series for
which money or U.S. Government Obligations have been deposited pursuant to
Section 15.02.
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The provisions of the last paragraph of Section 12.04 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 15.02.
ARTICLE SIXTEEN
CONVERSION
Section 16.01. Applicability; Conversion Privilege.
-----------------------------------
Except as otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, the provisions of this Article Sixteen shall be
applicable to any Debt Securities that are convertible into Common Stock. If so
provided pursuant to Section 3.01 with respect to the Debt Securities of any
series, the Holder of a Debt Security of such series shall have the right, at
such Holder's option, to convert, in accordance with the terms of such series of
Debt Securities and this Article Sixteen, all or any part (in a denomination of,
unless otherwise specified pursuant to Section 3.01 with respect to Securities
of such series, $1,000 in principal amount or any integral multiple thereof) of
such Debt Security into shares of Common Stock or, as to any Debt Securities
called for redemption, at any time prior to the time and date fixed for such
redemption (unless the Company shall default in the payment of the Redemption
Price, in which case such right shall not terminate at such time and date).
Section 16.02. Conversion Procedure; Conversion Price; Fractional
--------------------------------------------------
Shares.
- ------
(a) Each Debt Security to which this Article is applicable shall be
convertible at the office of the Conversion Agent, and at such other place or
places, if any, specified in pursuant to Section 3.01 with respect to the Debt
Securities of such series, into fully paid and nonassessable shares (calculated
to the nearest 1/100th of a share) of Common Stock. The Debt Securities will be
converted into shares of Common Stock at the Conversion Price therefor. No
payment or adjustment shall be made in respect of dividends on the Common Stock
or accrued interest on a converted Debt Security except as described in
Section 16.09. The Company may, but shall not be required, in connection with
any conversion of Debt Securities, to issue a fraction of a share of Common
Stock and, if the Company shall determine not to issue any such fraction, the
Company shall, subject to Section 16.03(4), make a cash payment (calculated to
the nearest cent) equal to such fraction multiplied by the Closing Price of the
Common Stock on the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Debt Security shall be entitled to convert
the same into Common Stock, such Holder shall surrender such Debt Security duly
endorsed to the Company or in blank, or, in the case of Bearer Securities,
together with all unmatured Coupons and any matured Coupons in default attached
thereto, at the office of the Conversion Agent or at such other place or places,
if any, specified pursuant to Section 3.01 (in the case of Registered
Securities) and at an office of the Conversion Agent or at such other place or
places, if any, outside of the United States as is specified pursuant to
Section 3.01 (in the case of Bearer Securities), and shall give written notice
to the Company at said office or place that he elects to convert the same and
shall state in writing therein the principal amount of Debt Securities to be
converted and the name or names (with addresses) in which he wishes the
certificate or certificates for Common Stock to be issued; provided, however,
that no Debt Security or portion thereof shall be accepted for conversion unless
the principal amount of such Debt Security or such portion, when added to the
principal amount of all other Debt Securities or portions
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thereof then being surrendered by the Holder thereof for conversion, exceeds the
then effective Conversion Price with respect thereto. 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 conversion may be effected if the Bearer
Securities to be surrendered for conversion are accompanied by payment in funds
acceptable to the Company 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 is 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 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 12.03, 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. If more than one Debt Security shall be surrendered
for conversion at one time by the same Holder, the number of full shares of
Common Stock which shall be deliverable upon conversion shall be computed on the
basis of the aggregate principal amount of the Debt Securities (or specified
portions thereof to the extent permitted thereby) so surrendered. Subject to
the next succeeding sentence, the Company will, as soon as practicable
thereafter, issue and deliver at said office or place to such Holder of a Debt
Security, or to his nominee or nominees, certificates for the number of full
shares of Common Stock to which he shall be entitled as aforesaid, together,
subject to the last sentence of paragraph (a) above, with cash in lieu of any
fraction of a share to which he would otherwise be entitled. The Company shall
not be required to deliver certificates for shares of Common Stock while the
stock transfer books for such stock or the Security Register are duly closed for
any purpose, but certificates for shares of Common Stock shall be issued and
delivered as soon as practicable after the opening of such books or Security
Register. A Debt Security shall be deemed to have been converted as of the
close of business on the date of the surrender of such Debt Security for
conversion as provided above, and the Person or Persons entitled to receive the
Common Stock issuable upon such conversion shall be treated for all purposes as
the record Holder or Holders of such Common Stock as of the close of business on
such date. In case any Debt Security shall be surrendered for partial
conversion, the Company shall execute and the Trustee shall authenticate and
deliver to or upon the written order of the Holder of the Debt Securities so
surrendered, without charge to such Holder (subject to the provisions of Section
16.08), a new Debt Security or Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Debt Security.
Section 16.03. Adjustment of Conversion Price for Common Stock.
-----------------------------------------------
The Conversion Price with respect to any Debt Security which is
convertible into Common Stock shall be adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time to time while
any of such Debt Securities are outstanding, (i) pay a dividend in shares
of its Common Stock to holders of Common Stock, (ii) combine its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock, (iii) subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock or (iv) make a distribution in
shares of Common Stock to holders of Common Stock, then the Conversion
Price in effect immediately before such action shall be adjusted so that
the Holders of such Debt Securities, upon conversion thereof into Common
Stock immediately following such event, shall be entitled to receive the
kind and amount of shares of capital stock of the Company which they would
have owned or been entitled to receive upon or by reason of such event if
such Debt Securities had been converted immediately before the record dated
(or, if no record date, the effective date) for such event.
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An adjustment made pursuant to this Section 16.03(1) shall become effective
retroactively immediately after the record date in the case of a dividend
or distribution and shall become effective retroactively immediately after
the effective date in the case of a subdivision or combination. For the
purposes of this Section 16.03(1), each Holder of Debt Securities shall be
deemed to have failed to exercise any right to elect the kind or amount of
securities receivable upon the payment of any such dividend, subdivision,
combination or distribution (provided that if the kind or amount of
securities receivable upon such dividend, subdivision, combination or
distribution is not the same for each nonelecting share, then the kind and
amount of securities or other property receivable upon such dividend,
subdivision, combination or distribution for each nonelecting share shall
be deemed to be the kind and amount so receivable per share by a plurality
of the nonelecting shares).
(2) In case the Company shall, at any time or from time to time while
any of such Debt Securities are outstanding, issue rights or warrants to
all holders of shares of its Common Stock entitling them (for a period
expiring within 45 days after the record date for such issuance) to
subscribe for or purchase shares of Common Stock (or securities convertible
into shares of Common Stock) at a price per share less than the Current
Market Price of the Common Stock at such record date (treating the price
per share of the securities convertible into Common Stock as equal to (x)
the sum of (i) the price for a unit of the security convertible into Common
Stock and (ii) any additional consideration initially payable upon the
conversion of such security into Common Stock divided by (y) the number of
shares of Common Stock initially underlying such convertible security), the
Conversion Price with respect to such Debt Securities shall be adjusted so
that it shall equal the price determined by dividing the Conversion Price
in effect immediately prior to the date of issuance of such rights or
warrants by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights
or warrants plus the number of additional shares of Common Stock offered
for subscription or purchase (or into which the convertible securities so
offered are initially convertible), and the denominator of which shall be
the number of shares of Common Stock outstanding on the date of issuance of
securities which the aggregate offering price of the total number of shares
of securities so offered for subscription or purchase (or the aggregate
purchase price of the convertible securities so offered plus the aggregate
amount of any additional consideration initially payable upon conversion of
such securities into Common Stock) would purchase at such Current Market
Price of the Common Stock. Such adjustment shall become effective
retroactively immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants.
(3) In the case the Company shall, at any time or from time to time
while any of such Debt Securities are outstanding, distribute to all
holders of shares of its Common Stock (including any such distribution made
in connection with a consolidation or merger in which the Company is the
continuing corporation and the Common Stock is not changed or exchanged)
cash, evidences of its indebtedness, securities or assets (excluding (i)
regular periodic cash dividends in amounts, if any, determined from time to
time by the Board of Directors, (ii) dividends payable in shares of Common
Stock for which adjustment is made under Section 16.03(1) or (iii) rights
or warrants to subscribe for or purchase securities of the Company
(excluding those referred to in Section 16.03(2))), then in each such case
the Conversion Price with respect to such Debt Securities determined by
dividing the Conversion Price in effect immediately prior to the date of
such distribution by a fraction, the numerator of which shall be the
Current Market Price of the Common Stock on the record date referred to
below, and the denominator of which shall be such Current Market Price of
the Common Stock less the then fair market value (as
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determined by the Board of Directors of the Company, whose determination
shall be conclusive) of the portion of the cash or assets or evidences of
indebtedness or securities so distributed or of such subscription rights or
warrants applicable to one share of Common Stock (provided that such
denominator shall never be less than 1.0); provided however, that no
adjustment shall be made with respect to any distribution of rights to
purchase securities of the Company if a Holder of Debt Securities would
otherwise be entitled to receive such rights upon conversion at any time of
such Debt Securities into Common Stock unless such rights are subsequently
redeemed by the Company, in which case such redemption shall be treated for
purposes of this section as a dividend on the Common Stock. Such
adjustment shall become effective retroactively immediately after the
record date for the determination of stockholders entitled to receive such
distribution; and in the event that such distribution is not so made, the
Conversion Price shall again be adjusted to the Conversion Price which
would then be in effect if such record date had not been fixed.
(4) The Company shall be entitled to make such additional adjustments
in the Conversion Price, in addition to those required by subsections
16.03(1), 16.03(2), and 16.03(03), as shall be necessary in order that any
dividend or distribution of Common Stock, any subdivision, reclassification
or combination of shares of Common Stock or any issuance of rights or
warrants referred to above shall not be taxable to the holders of Common
Stock for United States Federal income tax purposes.
(5) In any case in which this Section 16.03 shall require that any
adjustment be made effective as of or retroactively immediately following a
record date, the Company may elect to defer (but only for five (5) Trading
Days following the filing of the statement referred to in Section 16.05)
issuing to the Holder of any Debt Securities converted after such record
date the shares of Common Stock and other capital stock of the Company
issuable upon such conversion over and above the shares of Common Stock and
other capital stock of the Company issuable upon such conversion on the
basis of the Conversion Price prior to adjustment; provided, however, that
the Company shall deliver to such Holder a due bill or other appropriate
instrument evidencing such Holder's right to receive such additional shares
upon the occurrence of the event requiring such adjustment.
(6) All calculations under this Section 16.03 shall be made to the
nearest cent or one-hundredth of a share of security, with one-half cent
and 0.005 of a share, respectively, being rounded upward. Notwithstanding
any other provision of this Section 16.03, the Company shall not be
required to make any adjustment of the Conversion Price unless such
adjustment would require an increase or decrease of at least 1% of such
price. Any lessor adjustment shall be carried forward and shall be made at
the time of and together with the next subsequent adjustment which,
together with any adjustment or adjustments so carried forward, shall
amount to an increase or decrease of at least 1% in such price. Any
adjustments under this Section 16.03 shall be made successively whenever an
event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an adjustment made
pursuant to this Section 16.03, the Holder of any Debt Security thereafter
surrendered for conversion shall become entitled to receive any shares of
stock of the Company other than shares of Common Stock into which the Debt
Securities originally were convertible, the Conversion Price of such other
shares so receivable upon conversion of any such Debt Security shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to
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Common Stock contained in subparagraphs (1) through (6) of this Section
16.03, and the provisions of Sections 16.01, 16.02 and 16.04 through 16.09
with respect to the Common Stock shall apply on like or similar terms to
any such other shares and the determination of the Board of Directors as to
any such adjustment shall be conclusive.
(8) No adjustment shall be made pursuant to this Section: (i) if the
effect thereof would be to reduce the Conversion Price below the par value
(if any) of the Common Stock or (ii) subject to 16.03(5) hereof, with
respect to any Debt Security that is converted prior to the time such
adjustment otherwise would be made.
Section 16.04 Consolidation or Merger of the Company.
--------------------------------------
In case of either (a) any consolidation or merger to which the Company
is a party, other than a merger or consolidation in which the company is the
surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value, as a result of a
subdivision or combination) in, outstanding shares of Common Stock or (b) any
sale or conveyance of all or substantially all of the property and assets of the
Company to another Person, then each Debt Security then outstanding shall be
convertible from and after such merger, consolidation, sale or conveyance of
property and assets into the kind and amount of shares of stock or other
securities and property (including cash) receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
into which such Debt Securities would have been converted immediately prior to
such consolidation, merger, sale or conveyance, subject to adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Sixteen (and assuming such holder of Common Stock failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance (provided that, if the kind or amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance is not the same for each nonelecting share, then the
kind and amount of securities, cash or other property (including cash)
receivable upon such consolidation, merger, sale or conveyance for each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares or securities)). The Company
shall not enter into any of the transactions referred to in clause (a) or (b) of
the preceding sentence unless effective provision shall be made so as to give
effect to the provisions set forth in this Section 16.04. The provisions of
this Section 16.04 shall apply similarly to successive consolidations, mergers,
sales or conveyances.
Section 16.05. Notice of Adjustment.
--------------------
Whenever an adjustment in the Conversion Price with respect to a
series of Debt Securities is required:
(1) the Company shall forthwith place on file with the Trustee and
any Conversion Agent for such Securities a certificate of the Treasurer of
the Company, stating the adjusted Conversion Price determined as provided
herein and setting forth in reasonable detail such facts as shall be
necessary to show the reason for and the manner of computing such
adjustment, such certificate to be conclusive evidence that the adjustment
is correct; and
(2) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be given by the
Company, or at the Company's request, by the Trustee in the name and at the
expense of the Company, in the manner provided in Section
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1.05. Any notice so given shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.
Section 16.06. Notice in Certain Events.
------------------------
In case:
-------
(1) of a 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 conveyance to another Person or entity or group of Persons or
entities acting in concert as a partnership, limited partnership, syndicate
or other group (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of all or substantially all of the
property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion Price
pursuant to this Article Sixteen;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Debt Securities, and shall cause to be
given, to the Holders of record of applicable Debt Securities in the manner
provided in Section 1.05, at least fifteen (15) days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article
Sixteen, or, if a record is not to be taken, the date as of which the holders of
record or Common Stock entitled to such distribution, rights or warrants are to
be determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article Sixteen 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 Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2), or (3) of
this Section.
Section 16.07. Company to Reserve Stock; Registration; Listing.
-----------------------------------------------
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of Common
Stock, for the purpose of effecting the conversion of the Debt Securities, such
number of its duly authorized shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all applicable outstanding Debt
Securities into such Common Stock at any time (assuming that, at the time of the
computation of such number of shares or securities, all such Debt Securities
would be held by a single holder); provided, however, that nothing contained
herein shall preclude the Company from satisfying its obligations in respect of
the conversion of the Debt Securities by delivery of purchased shares of Common
Stock which are held in the treasury of the Company. The Company shall from
time to time, in accordance with the laws of the State of Delaware, use its best
efforts to cause the authorized amount of the Common Stock to be increased if
the aggregate of the authorized amount of the Common Stock remaining unissued
and the issued shares of
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such Common Stock in its treasury (other than any such shares reserved for
issuance in any other connection) shall not be sufficient to permit the
conversion of all Debt Securities.
(b) If any shares of Common Stock which would be issuable upon
conversion of Debt Securities hereunder require registration with or approval of
any governmental authority before such shares or securities may be issued upon
such conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company will endeavor to list the shares of Common
Stock required to be delivered upon conversion of the Debt Securities prior to
such delivery upon the principal national securities exchange upon which the
outstanding Common Stock is listed at the time of such delivery.
Section 16.08. Taxes on Conversion.
-------------------
The Company shall pay any and all documentary, stamp or similar issue
or transfer taxes that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Debt Securities pursuant hereto. The
Company shall not, however, be required to pay any such tax which may be payable
in respect of any transfer involved in the issue or delivery of shares of Common
Stock or the portion, if any, of the Debt Securities which are not so converted
in a name other than that in which the Debt Securities so converted were
registered (in case of Registered Securities), 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 such tax or has established to the satisfaction of the
Company that such tax has been paid.
Section 16.09 Conversion After Record Date.
----------------------------
If any Debt Securities are surrendered for conversion subsequent to
the record date preceding an Interest Payment Date but on or prior to such
Interest Payment Date (except Debt Securities called for redemption on a
Redemption Date between such record date and Interest Payment Date), the Holder
of such Debt Securities at the close of business on such record date shall be
entitled to receive the interest payable on such Debt Securities on such
Interest Payment Date notwithstanding the conversion thereof. Debt Securities
surrendered for conversion during the period from the close of business on any
record date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date to the opening of business on such Interest
Payment Date shall (except in the case of Debt Securities which have been called
for redemption on a Redemption Date within such period) be accompanied by
payment in New York Clearing House funds or other funds and in the Currency
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the Debt Securities being surrendered for conversion.
Except as provided in this Section 16.09, no adjustments in respect of payments
of interest on Debt Securities surrendered for conversion or any dividends or
distributions of interest on the Common Stock issued upon conversion shall be
made upon the conversion of any Debt Securities.
Section 16.10. Company Determination Final.
---------------------------
Any determination that the Company or the Board of Directors must make
pursuant to this Article is conclusive.
Section 16.11 Trustee's Disclaimer.
--------------------
The Trustee has no duty to determine when an adjustment under this
Article should be made, how it should be made or what it should be. The Trustee
makes no representation as to the
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validity or value of any securities or assets issued upon conversion of Debt
Securities. The Trustee shall not be responsible for the Company's failure to
comply with this Article. Each Conversion Agent other than the Company shall
have the same protection under this Section as the Trustee.
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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.
BRUNO'S INC.
By:________________________
Title:_____________________
Attest:
________________________
Title:
Seal
-----------------------------
-----------------------------
as Trustee
By:________________________
Title:
Attest:
________________________
Title:
Seal
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<PAGE>
STATE OF )
: ss.:
COUNTY OF )
On the day of , 19__, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he resides at
________________________________; that he is _____________________________ of
Bruno's, Inc., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
________________________
Notary Public
SEAL
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STATE OF )
: ss.:
COUNTY OF )
On the day of , 19__, before me personally came
-------------
, to me known, who, being by me duly sworn, did depose and say that he
- -------
resides at
---------------------------------------------------------------------
; that he is of , one
--------------- -----------------------------------------
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
________________________
Notary Public
SEAL
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<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN 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 principal amount of the above captioned Debt Securities held by
you for our account (i) is owned by person(s) that are not United States
person(s) (as defined below), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt 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 the Company or the
Company's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the Treasury regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury regulations), and in addition if the owner of the Debt
Securities 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 Debt
Securities for the purpose of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
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 beneficial
interest in the temporary global Security 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 ________ principal
amount of Debt Securities held by you for our account as to which we are not
able to provide a certificate in this form. We understand that exchange of such
portion of the temporary global Note for definitive Bearer Securities or
interests in a permanent global Note cannot be made until we are able to provide
a certificate in this form.
We understand that this certificate is required in connection with
certain tax laws and regulations of 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.
<PAGE>
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated:________________________, 19__
[To be dated no earlier than the
10th day before the Exchange Date]
By:________________________
As, or as agent for, the
beneficial owner(s) of
the portion of the
temporary global Note
to which this
certificate relates.
2
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
________________________
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof, _________
principal amount of the above-captioned Debt Securities (i) is owned by
person(s) that are not United States person(s) (as defined below), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their
own account or for resale, or (b) United States person(s) who acquired the
Debt Securities through foreign branches of United States financial institutions
and who hold the Debt Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution has agreed, on its own behalf or through its agent,
that we may advise the Company or the Company's agent that it 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 Treasury regulations thereunder), or (iii)
is owned by United States or foreign financial institution(s) for the purpose
of resale during the restricted period (as defined in Section 1.163-5(c)(2)(i)
(D)(7) of the United States Treasury regulations), and in addition United States
or foreign 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 Debt Securities for the purpose of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
We further certify (i) that we are not making available for exchange
or collection of any interest any portion of the temporary Global Note excepted
in such certifications and (ii) that 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 collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with
certain tax laws and regulations of 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.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of
<PAGE>
Columbia) and its "possessions" which include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
Dated:________________________, 19__
[To be dated no earlier than the
Exchange Date]
By:________________________
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the Euro-Clear
System] [CEDEL, S.A.]
2
Exhibit 4.2
=================================================================
BRUNO'S INC.
To
Trustee
__________
Indenture
Dated as of __________ __, 1995
__________
=================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . 1
Section 1.01. Definitions . . . . . . . . . . . . . . . 1
Section 1.02. Compliance Certificates and Opinions . . 11
Section 1.03. Form of Documents Delivered to Trustee . 11
Section 1.04. Notices, etc., to Trustee and Company . . 12
Section 1.05. Notice to Holders; Waiver . . . . . . . . 12
Section 1.06. Conflict with Trust Indenture Act . . . . 13
Section 1.07. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . 13
Section 1.08. Successors and Assigns . . . . . . . . . 13
Section 1.09. Separability Clause . . . . . . . . . . . 13
Section 1.10. Benefits of Indenture . . . . . . . . . . 14
Section 1.11. Governing Law . . . . . . . . . . . . . . 14
Section 1.12. Legal Holidays . . . . . . . . . . . . . 14
Section 1.13. No Security Interest Created . . . . . . 14
Section 1.14. Liability Solely Corporate . . . . . . . 14
ARTICLE TWO
DEBT SECURITY FORMS . . . . . . . . . 15
Section 2.01. Forms Generally . . . . . . . . . . . . . 15
Section 2.02. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . 16
Section 2.03. Securities in Global Form . . . . . . . . 16
ARTICLE THREE
THE DEBT SECURITIES . . . . . . . . . 16
Section 3.01. Amount Unlimited; Issuable in Series . . 16
Section 3.02. Denominations . . . . . . . . . . . . . . 20
Section 3.03. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . 20
Section 3.04. Temporary Debt Securities; Exchange of
Temporary Global Notes for Definitive
Bearer Securities . . . . . . . . . . . 22
Section 3.05. Registration, Transfer and Exchange . . . 27
Section 3.06. Mutilated, Destroyed, Lost and Stolen
Debt Securities . . . . . . . . . . . . 29
Section 3.07. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . 30
Section 3.08. Cancellation . . . . . . . . . . . . . . 32
Section 3.09. Computation of Interest . . . . . . . . . 32
Section 3.10. Currency of Payments in Respect of
Debt . . . . . . . . . . . . . . . . . 32
Section 3.11. Judgments . . . . . . . . . . . . . . . . 35
Section 3.12. Exchange Upon Default . . . . . . . . . . 36
- i -
<PAGE>
Page
----
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . 36
Section 4.01. Satisfaction and Discharge of Indenture . 36
Section 4.02. Application of Trust Money . . . . . . . 37
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . 38
Section 5.01. Events of Default . . . . . . . . . . . . 38
Section 5.02. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . 39
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . 40
Section 5.04. Trustee May File Proofs of Claim . . . . 41
Section 5.05. Trustee May Enforce Claims Without
Possession of Debt Securities. . . . . . 41
Section 5.06. Application of Money Collected . . . . . 42
Section 5.07. Limitation on Suits . . . . . . . . . . . 42
Section 5.08. Unconditional Right of Holders to
Receive Principal, Premium and
Interest. . . . . . . . . . . . . . . . 43
Section 5.09. Restoration of Rights and Remedies . . . 43
Section 5.10. Rights and Remedies Cumulative . . . . . 43
Section 5.11. Delay or Omission Not Waiver . . . . . . 43
Section 5.12. Control by Holders . . . . . . . . . . . 43
Section 5.13. Waiver of Past Defaults . . . . . . . . . 44
Section 5.14. Undertaking for Costs . . . . . . . . . . 44
Section 5.15. Waiver of Stay or Extension Laws . . . . 44
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . 45
Section 6.01. Certain Duties and Responsibilities . . . 45
Section 6.02. Notice of Defaults . . . . . . . . . . . 46
Section 6.03. Certain Rights of Trustee . . . . . . . . 46
Section 6.04. Not Responsible for Recitals or Issuance
of Debt Securities . . . . . . . . . . . 47
Section 6.05. May Hold Debt Securities . . . . . . . . 47
Section 6.06. Money Held in Trust . . . . . . . . . . . 48
Section 6.07. Compensation and Reimbursement . . . . . 48
Section 6.08. Disqualification; Conflicting Interests . 48
Section 6.09. Corporate Trustee Required; Eligibility . 54
Section 6.10. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . 54
Section 6.11. Acceptance of Appointment by Successor . 55
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . 56
Section 6.13. Preferential Collection of Claims
Against Company . . . . . . . . . . . . 56
Section 6.14. Appointment of Authenticating Agent . . . 59
- ii -
<PAGE>
Page
----
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . 61
Section 7.01. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . 61
Section 7.02. Preservation of Information;
Communication to Holders . . . . . . . . 62
Section 7.03. Reports by Trustee . . . . . . . . . . . 63
Section 7.04. Reports by Company . . . . . . . . . . . 64
ARTICLE EIGHT
CONCERNING THE HOLDERS . . . . . . . . 65
Section 8.01. Acts of Holders . . . . . . . . . . . . . 65
Section 8.02. Proof of Ownership; Proof of Execution
of Instruments by Holder . . . . . . . . 66
Section 8.03. Persons Deemed Owners . . . . . . . . . . 66
Section 8.04. Revocation of Consents; Future Holders
Bound . . . . . . . . . . . . . . . . . 67
ARTICLE NINE
HOLDERS' MEETINGS . . . . . . . . . . 67
Section 9.01. Purposes of Meetings . . . . . . . . . . 67
Section 9.02. Call of Meetings by Trustee . . . . . . . 68
Section 9.03. Call of Meetings by Company or Holders . 68
Section 9.04. Qualifications for Voting . . . . . . . . 68
Section 9.05. Regulations . . . . . . . . . . . . . . . 68
Section 9.06. Voting . . . . . . . . . . . . . . . . . 69
Section 9.07. No Delay of Rights by Meeting . . . . . . 69
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . 69
Section 10.01. Company May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . 69
Section 10.02. Successor Corporation Substituted . . . 70
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES . . . . . . . . 70
Section 11.01. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . 70
Section 11.02. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . 72
Section 11.03. Execution of Supplemental Indentures . . 73
Section 11.04. Effect of Supplemental Indentures . . . 73
Section 11.05. Conformity with Trust Indenture Act . . 73
Section 11.06. Reference in Debt Securities to
Supplemental Indentures . . . . . . . . 73
Section 11.07. Notice of Supplemental Indenture . . . . 73
- iii -
<PAGE>
Page
----
ARTICLE TWELVE
COVENANTS . . . . . . . . . . . . 74
Section 12.01. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . 74
Section 12.02. Officer's Certificate as to Default . . 74
Section 12.03. Maintenance of Office or Agency . . . . 74
Section 12.04. Money for Debt Securities; Payments To
Be Held in Trust . . . . . . . . . . . . 75
Section 12.05. Corporate Existence . . . . . . . . . . 77
Section 12.06. Purchase of Debt Securities by Company . 77
Section 12.07. Waiver of Certain Covenants . . . . . . 77
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES . . . . . . . 77
Section 13.01. Applicability of Article . . . . . . . . 77
Section 13.02. Election to Redeem; Notice to Trustee . 77
Section 13.03. Selection by Trustee of Debt Securities
to Be Redeemed . . . . . . . . . . . . . 78
Section 13.04. Notice of Redemption . . . . . . . . . . 78
Section 13.05. Deposit of Redemption Price . . . . . . 79
Section 13.06. Debt Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . . . 79
Section 13.07. Debt Securities Redeemed in Part . . . . 80
ARTICLE FOURTEEN
SINKING FUNDS . . . . . . . . . . . 80
Section 14.01. Applicability of Article . . . . . . . . 80
Section 14.02. Satisfaction of Mandatory Sinking Fund
Payments with Debt Securities . . . . . 81
Section 14.03. Redemption of Debt Securities for
Sinking Fund . . . . . . . . . . . . . . 81
ARTICLE FIFTEEN
DEFEASANCE . . . . . . . . . . . 83
Section 15.01. Applicability of Article . . . . . . . . 83
Section 15.02. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations . . . . . . 83
Section 15.03. Deposited Moneys and U.S. Government
Obligations to Be Held in Trust . . . . 84
Section 15.04. Repayment to Company . . . . . . . . . . 85
- iv -
<PAGE>
Page
----
ARTICLE SIXTEEN
SUBORDINATION . . . . . . . . . . . 85
Section 16.01. Agreement to Subordinate . . . . . . . . 85
Section 16.02. Distribution on Dissolution . . . . . . 85
Section 16.03. No Payment on Debt Securities in Event
of Default on Senior Indebtedness . . . 87
Section 16.04. Payments on Debt Securities Permitted . 87
Section 16.05. Authorization of Holders to Trustee to
Effect Subordination . . . . . . . . . . 87
Section 16.06. Notices to Trustee . . . . . . . . . . . 87
Section 16.07. Trustee as Holder of Senior
Indebtedness . . . . . . . . . . . . . . 88
Section 16.08. Modification of Terms of Senior
Indebtedness . . . . . . . . . . . . . . 88
Section 16.09. Reliance on Judicial Order or
Certificate of Liquidation Agent . . . . 89
ARTICLE SEVENTEEN
CONVERSION . . . . . . . . . . . 89
Section 17.01. Applicability; Conversion Privilege . . 89
Section 17.02. Conversion Procedure; Conversion Price;
Fractional Shares . . . . . . . . . . . 89
Section 17.03. Adjustment of Conversion Price for Common
Stock
Section 17.04. Consolidation or Merger of the Company . 93
Section 17.05. Notice of Adjustment . . . . . . . . . . 94
Section 17.06. Notice in Certain Events . . . . . . . . 94
Section 17.07. Company to Reserve Stock; Registration;
Listing . . . . . . . . . . . . . . . . 95
Section 17.08. Taxes on Conversion . . . . . . . . . . 95
Section 17.09 Conversion After Record Date . . . . . . 95
Section 17.10. Company Determination Final . . . . . . 96
Section 17.11 Trustee's Disclaimer . . . . . . . . . . 96
- v -
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________ __, 1995
Trust Indenture Act Section Indenture Section
Sec. 310 (a)(1) . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . 6.09
(a)(3) . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . 6.08, 6.10
(c) . . . . . . . . . . . . . Not Applicable
Sec. 311 (a) . . . . . . . . . . . . . 6.13(a)
(b) . . . . . . . . . . . . . 6.13(b)
(c) . . . . . . . . . . . . . Not Applicable
Sec. 312 (a) . . . . . . . . . . . . . 7.01, 7.02(a)
(b) . . . . . . . . . . . . . 7.02(b)
(c) . . . . . . . . . . . . . 7.02(c)
Sec. 313 (a) . . . . . . . . . . . . . 7.03(a)
(b) . . . . . . . . . . . . . 7.03(b)
(c) . . . . . . . . . . . . . 7.03(a),
7.03(c)
(d) . . . . . . . . . . . . . 7.03(d)
Sec. 314 (a) . . . . . . . . . . . . . 7.04, 12.02
(b) . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . 1.02
(c)(2) . . . . . . . . . . . . 1.02
(c)(3) . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . 1.02
Sec. 315 (a) . . . . . . . . . . . . . 6.01(a),
6.01(c)
(b) . . . . . . . . . . . . . 6.02,
7.03(a)(7)
(c) . . . . . . . . . . . . . 6.01(b)
(d)(1) . . . . . . . . . . . . 6.01(a)
(d)(2) . . . . . . . . . . . . 6.01(c)(2)
(d)(3) . . . . . . . . . . . . 6.01(c)(3)
(e) . . . . . . . . . . . . . 5.14
Sec. 316 (a)(1)(A) . . . . . . . . . . 5.02, 5.12
(a)(1)(B) . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . 5.08
(c) . . . . . . . . . . . . . Not Applicable
<PAGE>
Sec. 317 (a)(1) . . . . . . . . . . . . 5.03
(a)(2) . . . . . . . . . . . . 5.04
(b) . . . . . . . . . . . . . 12.04
Sec. 318 . . . . . . . . . . . . . . . 1.06
_______________
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the
Indenture.
<PAGE>
INDENTURE dated as of _______ __, 1995, between BRUNO'S
INC., a Delaware corporation (hereinafter called the "Company"),
having its principal executive office at 800 Lakeshore Parkway,
Birmingham, Alabama 35211 and (hereinafter
----------------
called the "Trustee"), having its Corporate Trust Office at
------
.
----------------------------------------------------------
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 and subordinated debentures, notes,
bonds or other evidences of indebtedness (herein generally called
the "Debt Securities"), to be issued in one or more series, as in
this Indenture provided.
All things necessary have been done to make this
Indenture a valid agreement of the Company, in accordance with
its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of Debt Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of Debt Securities or of Debt Securities
of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions.
-----------
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article, and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles or as provided with
respect to any series of Debt Securities, and, except as
otherwise herein provided or as provided with respect to any
series of Debt Securities, the term "generally accepted
accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder with respect to
any series of Debt Securities, shall mean such as set forth
in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a
significant segment of the accounting profession which are
in effect as of the issuance date of such series of Debt
Securities; and
<PAGE>
(4) 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 terms, used principally in Article Three or Article Six,
are defined in those respective Articles.
"Act" when used with respect to any Holder, has
the meaning specified in Section 8.01.
"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" (including, with
correlative meanings, the terms "controlling,"
"controlled by" and "under common control with") as used
with respect to any Person means the possession,
directly or indirectly, of the power to direct or cause
the direction of the management or policies of such
Person, whether through the ownership of voting
securities, by agreement or otherwise, provided,
--------
however, that beneficial ownership of 10% or more of
-------
the voting securities of a Person shall be deemed to be
control.
"Affiliated Corporation" means any corporation
which is controlled by the Company but which is not a
Subsidiary of the Company pursuant to the definition of
the term "Subsidiary."
"Authenticating Agent" has the meaning specified
in Section 6.14.
"Authorized Newspaper" means a newspaper in an
official language of the country of publication
customarily published at least once a day, and
customarily published for at least five days in each
calendar week, 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 in such city.
"Bearer Security" means any Debt Security (with or
without Coupons), in the form established pursuant to
Section 2.01, which is payable to bearer (including any
Global Note payable to bearer) and title to which
passes by delivery only, but does not include any
Coupons.
"Board of Directors" means either the board of
directors of the Company, or any committee of that
board duly authorized to act hereunder or any director
or directors and/or officer or officers of the Company
to whom that board or committee shall have delegated
its authority.
"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.
2
<PAGE>
"Business Day" when used with respect to any Place
of Payment or any other particular location referred to
in this Indenture or in the Debt Securities means any
day which is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust
companies in that Place of Payment or other location
are authorized or obligated by law to close, except as
otherwise specified pursuant to Section 3.01.
"CEDEL" means Cedel S.A.
"Closing Price" of the Common Stock shall mean the
last reported sale price of such stock (regular way) as
shown on the Composite Tape of the New York Stock
Exchange (or, if such stock is not listed or admitted
to trading on the New York Stock Exchange, on the
principal national securities exchange on which such
stock is listed or admitted to trading), or, in case no
such sale takes place on such day, the average of the
closing bid and asked prices on the New York Stock
Exchange (or, if such stock is not listed or admitted
to trading on the New York Stock Exchange, on the
principal national securities exchange on which such
stock is listed or admitted to trading), or, if it is
not listed or admitted to trading on any national
securities exchange, the average of the closing bid and
asked prices as reported by the National Association of
Securities Dealers Automated Quotation System (NASDAQ),
or if such stock is not so reported, the average of the
closing bid and asked prices as furnished by any member
of the National Association of Securities Dealers,
Inc., selected from time to time by the Company for
that purpose.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created
under the Securities Exchange Act of 1934, as amended,
or if at any time after the execution of this
instrument such Commission is not existing and
performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such
duties on such date.
"Common Stock" shall mean the class of Common Stock,
par value $.01 per share, of the Company authorized at the
date of this Indenture as originally signed, or any other
class of stock resulting from successive changes or
reclassifications of such Common Stock, and in any such case
including any shares thereof authorized after the date of
this Indenture, and any other shares of stock of the Company
which do not have any priority in the payment of dividends
or upon liquidation over any other class of stock.
"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.
"Company Request" and "Company Order" mean,
respectively, a written request or order signed in the
name of the Company by the Chairman, a Vice Chairman,
the President, the Chief Financial Officer or a Vice
President and by the Treasurer, an Assistant Treasurer,
the Controller, an Assistant Controller, the Secretary
or an Assistant Secretary of the Company, and delivered
to the Trustee.
3
<PAGE>
"Component Currency" has the meaning specified in
Section 3.10(i).
"Conversion Agent" means any Person authorized by
the Company to receive Debt Securities to be converted
into Common Stock on behalf of the Company. The
Company initially authorizes the Trustee to act as
Conversion Agent for the Debt Securities on its behalf.
The Company may at any time from time to time authorize
one or more Persons to act as Conversion Agent in
addition to or in place of the Trustee with respect to
any series of Debt Securities issued under this
Indenture.
"Conversion Date" has the meaning specified in
Section 3.10(e).
"Conversion Event" means the cessation of (i) a
Foreign Currency to be used both by the government of
the country which issued such Currency and for the
settlement of transactions by public institutions of or
within the international banking community, (ii) the
ECU to be used 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 other than the ECU to be used
for the purposes for which it was established.
"Conversion Price" means, with respect to any
series of Debt Securities which are convertible into
Common Stock, the price per share of Common Stock at
which the Debt Securities of such series are so
convertible pursuant to Section 3.01 with respect to
such series, as the same may be adjusted from time to
time in accordance with Section 17.03.
"Corporate Trust Office" means the principal
corporate trust office of the Trustee at which at any
particular time its corporate trust business shall be
administered, which office at the date of execution of
this instrument is located at
--------------------------
.
--------------------------------------------
"Corporation" includes corporations, associations,
companies and business trusts.
"Coupon" means any interest coupon appertaining to
any Debt Security.
"Coupon Security" means any Bearer Security
authenticated and delivered with one or more Coupons
appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York
Clearing House bank, if any, from time to time selected
by the Trustee for purposes of Section 3.10; provided
--------
that such agent shall accept such appointment in
writing and the terms of such appointment shall be
acceptable to the Company and shall, in the opinion of
the Company and the Trustee at the time of such
appointment, require such agent to make the
determinations required by this Indenture by a method
consistent with the method provided in this Indenture
for the making of such decision or determination.
"Current Market Price" on any date shall mean the
average of the daily Closing Prices per share of Common
Stock for any thirty (30) consecutive Trading Days
selected
4
<PAGE>
by the Company prior to the date in question, which thirty
(30) consecutive Trading Day period shall not commence more
than forty-five (45) Trading Days prior to the day in
question; provided that with respect to Section 17.03(3),
the "Current Market Price" of the Common Stock shall mean
the average of the daily Closing Prices per share of Common
Stock for the five (5) consecutive Trading Days ending on
the date of the distribution referred to in Section 17.03(3)
(or if such date shall not be a Trading Day, on the Trading
Day immediately preceding such date).
"Debt Securities" has the meaning stated in the
first recital of this Indenture and more particularly
means any Debt Securities (including any Global Notes)
authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in
Section 3.07.
"Discharged" has the meaning specified in Section
15.02.
"Discount Security" means any Debt Security which
is issued with "original issue discount" within the
meaning of Section 1273(a) of the Code (or any
successor provision) and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent
unit in such 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 of the Currency Unit" has the
meaning specified in Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has
the meaning specified in Section 3.10(g).
"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 3.10(i).
"Euro-clear Operator" means Morgan Guaranty Trust
Company of New York, Brussels office, or its successor
as operator of the Euro-clear 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 Rate Officer's Certificate" means a
telex or a certificate setting forth (i) the applicable
Market Exchange Rate and (ii) the Dollar, Foreign
Currency or Currency unit amounts of principal,
premium, if any, and any interest respectively (on
5
<PAGE>
an aggregate basis and on the basis of a Debt Security
having the lowest denomination principal amount determined
in accordance with Section 3.02 in the relevant Currency or
Currency unit), payable on the basis of such Market Exchange
Rate sent (in the case of a telex) or signed (in the case of
a certificate) by the Treasurer or any Assistant Treasurer
of the Company.
"Fixed Rate Security" means a Debt Security which
provides for the payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security
which provides for the payment of interest at a
variable rate determined periodically by reference to
an interest rate index or any other index specified
pursuant to Section 3.01.
"Foreign Currency" means a currency issued by the
government of any country other than the United States
or a composite currency or currency unit the value of
which is determined by reference to the values of the
currencies of any group of countries.
"Global Note" means a Registered or Bearer
Security evidencing all or part of a series of Debt
Securities, including, without limitation, any
temporary or permanent Global Note.
"Holder" means, with respect to a Registered
Security, the Registered Holder, and with respect to a
Bearer Security or a Coupon, 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 and, unless the context
otherwise requires, shall include the terms of a
particular series of Debt Securities as established
pursuant to Section 3.01.
The term "interest," when used with respect to a
Discount Security which by its terms bears interest
only on a certain date, means interest payable after such
date, and, when used with respect to a Bearer Security,
includes any additional amounts payable on such Bearer
Security, if so provided pursuant to Section 3.01.
"Interest Payment Date" with respect to any Debt
Security means the Stated Maturity of an installment of
interest on such Debt Security.
"Market Exchange Rate" means (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 (New York City time) 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
6
<PAGE>
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 the event of
the unavailability of any of the exchange rates provided for
in the foregoing clauses (i), (ii) and (iii) the Currency
Determination Agent, if any, or if there shall not be a
Currency Determination Agent, then the Trustee, 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 Currency Determination Agent or
the Trustee, as the case may be, shall deem appropriate.
Unless otherwise specified by the Currency Determination
Agent, if any, or if there shall not be a Currency
Determination Agent, then by the Trustee, 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 Debt
Security means the date on which the principal of such
Debt Security or an installment of principal becomes
due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment or
repurchase at the option of the Holder thereof or
otherwise.
"Officers' Certificate" means a certificate signed
by the Chairman, a Vice Chairman, the President, the
Chief Financial Officer or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel to the Company (including
an employee of the Company) and who shall be
satisfactory to the Trustee, which is delivered to the
Trustee.
"Outstanding" when used with respect to Debt
Securities, means, as of the date of determination, all
Debt Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Debt Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities for whose 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 Debt Securities and any Coupons thereto
pertaining; provided, however, that if such Debt 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 and the date for
such redemption has passed; and
7
<PAGE>
(iii) Debt Securities which have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other
Debt Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Debt
Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Debt Securities are held by a bona fide purchaser in whose
hands such Debt Securities are valid obligations of the
Company; provided, however, that in determining whether the
-------- -------
Holders of the requisite principal amount of Debt Securities
Outstanding have performed any Act hereunder, Debt
Securities owned by the Company or any other obligor upon
the Debt Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be
Outstanding (provided, that in connection with any offer by
the Company or any obligor to purchase Debt Securities, Debt
Securities rendered by a Holder shall be Outstanding until
the date of purchase), except that, in determining whether
the Trustee shall be protected in relying upon any such Act,
only Debt Securities which the Trustee knows to be so owned
shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right to act with respect to
such Debt Securities and that the pledgee is not the Company
or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal
amount of Outstanding Debt Securities have performed any Act
hereunder, the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purpose shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 5.02 and the principal amount of a Debt Security
denominated in a Foreign Currency that shall be deemed to be
Outstanding for such purpose shall be the amount calculated
pursuant to Section 3.10(k).
"Overdue Rate" when used with respect to any
series of the Debt Securities, means the rate
designated as such in or pursuant to the Board
Resolution or the supplemental indenture, as the case
may be, relating to such series as contemplated by
Section 3.01.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any)
or interest on any Debt Securities on behalf of the
Company.
"permanent Global Note" shall have the meaning
given such term in Section 3.04(b).
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock
company, trust, estate, unincorporated organization or
government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" when used with respect to the
Debt Securities of any series means the place or places
where the principal of (and premium, if any) and
interest on the Debt Securities of that series are
payable as specified pursuant to Section 3.01.
"Predecessor Security" of any particular Debt
Security means every previous Debt Security evidencing
all or a portion of the same debt as that evidenced by
such particular Debt Security; and, for the purposes of
this definition, any Debt Security authenticated and
delivered under Section 3.06 in lieu of a mutilated,
lost, destroyed or
8
<PAGE>
stolen Debt Security or a Debt Security to which a
mutilated, lost, destroyed or stolen Coupon appertains shall
be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Debt Security or the Debt Security to
which the mutilated, lost, destroyed or stolen Coupon
appertains, as the case may be.
"Redemption Date" means the date fixed for
redemption of any Debt Security pursuant to this
Indenture which, in the case of a Floating Rate
Security, unless otherwise specified pursuant to
Section 3.01, shall be an Interest Payment Date only.
"Redemption Price" means, in the case of a
Discount Security, the amount of the principal thereof
that would be due and payable as of the Redemption Date
upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, and in the case of
any other Debt Security, the principal amount thereof,
plus, in each case, premium, if any, and accrued and
unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name
a Registered Security is registered in the Security
Register.
"Registered Security" means any Debt Security in
the form established pursuant to Section 2.01 which is
registered as to principal and interest in the Security
Register.
"Regular Record Date" for the interest payable on
the Registered Securities of any series on any Interest
Payment Date means the date specified for the purpose
pursuant to Section 3.01 for such Interest Payment
Date.
"Responsible Officer" when used with respect to
the Trustee means any vice president, the secretary,
any assistant secretary or any assistant vice president
or any other officer of the Trustee customarily per-
forming functions similar to those performed by any of
the above designated officers and also means, with
respect to a particular corporate trust matter, any
other officer to whom such matter is referred because
of his knowledge of and familiarity with the particular
subject.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 3.05(a).
"Senior Indebtedness" means the principal of (and
premium, if any) and unpaid interest on
(i) Indebtedness of the Company, whether outstanding on
the date of this Indenture or thereafter created,
incurred, assumed or guaranteed, for money borrowed
(other than the Indebtedness evidenced by the Debt
Securities of any series), unless in the instrument
creating or evidencing the same or pursuant to which
the same is outstanding it is provided that such
Indebtedness is not senior or prior in right of payment
to the Debt Securities, and (ii) renewals, extensions,
modifications and refundings of any such Indebtedness.
"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 3.10(i).
9
<PAGE>
"Stated Maturity" when used with respect to any
Debt Security or any installment of principal thereof
or premium thereon or interest thereon means the date
specified in such Debt Security or the Coupon, if any,
representing such installment of interest, as the date
on which the principal of such Debt Security or such
installment of principal, premium or interest is due
and payable.
"Subsidiary" means, with respect to any Person,
(i) any corporation, association, or other business
entity (other than a partnership) of which more than
50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors,
managers or trustees thereof is at the time of
determination owned or controlled, directly or
indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof
and (ii) any partnership of which more than 50% of the
partnership's capital accounts, distribution rights or
general or limited partnership interests are owned or
controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person or
a combination thereof.
"temporary Global Note" shall have the meaning
given such term in Section 3.04(b).
"Trading Day" shall mean, with respect to the
Common Stock, so long as the Common Stock is listed or
admitted to trading on the New York Stock Exchange, a
day on which the New York Stock Exchange is open for
the transaction of business, or, if the Common Stock is
not listed or admitted to trading on the New York Stock
Exchange, a day on which the principal national
securities exchange on which the Common Stock is listed
is open for the transaction of business, or, if the
Common Stock is not so listed or admitted for trading
on any national securities exchange, a day on which
NASDAQ is open for the transaction of business.
"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 Debt Securities of any series shall
mean the Trustee with respect to Debt Securities of
such series.
"Trust Indenture Act" means the Trust Indenture
Act of 1939 as amended and as in force at the date as
of which this instrument was executed, except as
provided in Section 11.05.
"United States" means the United States of America
(including the States and the District of Columbia),
and its possessions, which include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
"U.S. Depositary" means a clearing agency
registered under the Securities Exchange Act of 1934,
as amended, or any successor thereto, which shall in
either case be designated by the Company pursuant to
Section 3.01 until a successor U.S. Depositary shall
have become such pursuant to the applicable provisions
of this Indenture, and thereafter "U.S. Depositary"
shall mean or include each Person who is then a U.S.
10
<PAGE>
Depositary hereunder, and if at any time there is more than
one such Person, "U.S. Depositary" as used with respect to
the Debt Securities of any series shall mean the U.S.
Depositary with respect to the Debt Securities of that
series.
"U.S. Government Obligations" has the meaning
specified in Section 15.02.
"U.S. Person" means a citizen or resident of the
United States, a corporation, partnership or other
entity created or organized in or under the laws of the
United States, or an estate or trust the income of
which is subject to United States Federal income
taxation regardless of its source.
"Valuation Date" has the meaning specified in
Section 3.10(d).
"Vice President" includes with respect to the
Company and the Trustee, any Vice President of the
Company or the Trustee, as the case may be, whether or
not designated by a number or word or words added
before or after 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,
the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than certificates provided pursuant to Section 12.02)
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, 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
11
<PAGE>
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. Notices, etc., to Trustee and Company.
-------------------------------------
Any 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 (unless otherwise
herein expressly provided) if made, given, furnished or
filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department, 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 or airmail postage prepaid if
sent from outside the United States, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument, to the
attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the
Company.
Any such Act or other document shall be in the English
language, except that any published notice may be in an official
language of the country of publication.
Section 1.05. Notice to Holders; Waiver.
-------------------------
When this Indenture provides for notice to Holders of
any event, (1) such notice shall be sufficiently given to
Registered Holders (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to such
Registered Holders as their names and addresses appear in the
Security Register, within the time prescribed, and (2) such
notice shall be sufficiently given to Holders of Bearer
Securities or Coupons (unless otherwise herein expressly
provided) if published at least twice in an Authorized Newspaper
or Newspapers in The City of New York and, if Debt Securities of
such series are then 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, in a daily
newspaper in London or Luxembourg or in such other
12
<PAGE>
city or cities specified pursuant to Section 3.01 or in any Debt
Security on Business Days, the first such publication to be not
earlier than the earliest date and not later than two Business
Days prior to the latest date prescribed for the giving of such
notice; provided, however, that, in any case, any notice to
-------- -------
Holders of Floating Rate Securities regarding the determination
of a periodic rate of interest, if such notice is required
pursuant to Section 3.01, shall be sufficiently given if given in
the manner specified pursuant to Section 3.01.
In the event of suspension of regular mail service or
by reason of any other cause it shall be impracticable to give
notice by mail, such notification as shall be given with the
approval of the Trustee shall constitute sufficient notice for
every purpose hereunder.
In the event of suspension of publication of any
Authorized Newspapers or by reason of any other cause it shall be
impracticable to give notice by publication, such notification as
shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance on such waiver. In any case where notice to Holders
is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Holder shall
affect the sufficiency of such notice with respect to other
Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given.
In any case where notice to Holders is given by publication, any
defect in any notice so published as to any particular Holder
shall not affect the sufficiency of such notice with respect to
other Holders, and any notice which is published in the manner
herein provided shall be conclusively presumed to have been duly
given.
Section 1.06. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts
with the duties imposed on any person by the provisions of
Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
Section 1.07. Effect of Headings and Table of
-------------------------------
Contents.
--------
The Article and Section headings herein and in the
Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 1.08. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the
parties hereto shall bind their respective successors and assigns
and inure to the benefit of their permitted successors and
assigns, whether so expressed or not.
Section 1.09. Separability Clause.
-------------------
In case any provision in this Indenture or in the Debt
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
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Section 1.10. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Debt Securities,
express or implied, shall give to any Person, other than the
parties hereto, any Security Registrar, any Paying Agent and
their successors hereunder, and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law.
-------------
This Indenture, the Debt Securities and the Coupons
shall be deemed to be contracts made and to be performed entirely
in the State of New York, and for all purposes shall be governed
by and construed in accordance with the internal laws of said
State without regard to the conflicts of law rules of said State.
Section 1.12. Legal Holidays.
--------------
Unless otherwise specified pursuant to Section 3.01 or
in any Debt Security, in any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Debt Security of
any series shall not be a Business Day at any Place of Payment
for the Debt Securities of that series, then (notwithstanding any
other provision of this Indenture or of the Debt Securities or
Coupons) payment of principal (and premium, if any) or interest
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, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to such Business Day if such
payment is made or duly provided for on such Business Day.
Section 1.13. No Security Interest Created.
----------------------------
Nothing in this Indenture or in the Debt Securities or
Coupons, express or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect in any
jurisdiction where property of the Company or its Subsidiaries is
or may be located.
Section 1.14. Liability Solely Corporate.
--------------------------
No recourse shall be had for the payment of the
principal of (or premium, if any) or the interest on any Debt
Securities or Coupons, or any part thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any
incorporator, or against any stockholder, officer or director, as
such, past, present or future, of the Company (or any
incorporator, stockholder, officer or director of any predecessor
or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Debt Securities and Coupons are solely corporate obligations, and
that no personal liability whatsoever shall attach to, or be
incurred by, any such incorporator, stockholder, officer or
director, past, present or future, of the Company (or any
incorporator, stockholder, officer or director of any such
predecessor or successor corporation), either directly or
indirectly through the Company or any such predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations,
covenants,
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promises or agreements contained in this Indenture or in any of
the Debt Securities or Coupons or to be implied herefrom or
therefrom; and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issue of Debt Securities; provided, however, that nothing herein
-------- -------
or in the Debt Securities or Coupons contained shall be taken to
prevent recourse to and the enforcement of the liability, if any,
of any stockholder or subscriber to capital stock upon or in
respect of the shares of capital stock not fully paid.
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. Forms Generally.
---------------
The Debt Securities and the Coupons, if any, of each
series shall be substantially in one of the forms (including
global form) established in or pursuant to a Board Resolution or
one or more indentures supplemental hereto, and shall have 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
or designation and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any securities exchange on
which any series of the Debt Securities may be listed, or to
conform to usage, all as determined by the officers executing
such Debt Securities and Coupons as conclusively evidenced by
their execution of such Debt Securities and Coupons. If the form
of a series of Debt Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such
Board Resolution shall be delivered to the Trustee, together with
an Officers' Certificate setting forth the form of such series,
at or prior to the delivery of the Company Order contemplated by
Section 3.03 for the authentication and delivery of such Debt
Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section
3.01, Debt Securities in bearer form (other than in global form)
shall have Coupons attached.
The definitive Debt Securities and Coupons, if any, of
each series shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined
by the officers executing such Debt Securities and Coupons, as
conclusively evidenced by their execution of such Debt Securities
and Coupons.
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Section 2.02. Form of Trustee's Certificate of
--------------------------------
Authentication.
--------------
The form of the Trustee's certificate of authentication
to be borne by the Debt Securities shall be substantially as
follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued
under the within mentioned Indenture.
------------------------------
------------------------------
By
---------------------------
Authorized Signatory
Section 2.03. Securities in Global Form.
-------------------------
If any Debt Security of a series is issuable in global
form (a "Global Note"), such Global Note may provide that it
shall represent the aggregate amount of Outstanding Debt
Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Global Note to reflect the
amount, or any increase or decrease in the amount, of Outstanding
Debt Securities represented thereby shall be made by the Trustee
and in such manner as shall be specified in such Global Note.
Any instructions by the Company with respect to a Global Note,
after its initial issuance, shall be in writing but need not
comply with Section 1.02.
Global Notes may be issued in either registered or
bearer form and in either temporary or permanent form. Permanent
Global Notes will be issued in definitive form.
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Debt Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Debt Securities 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 in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of
any series:
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(1) the title of the Debt Securities of the series
(which shall distinguish the Debt Securities of such series
from all other series of Debt Securities);
(2) the aggregate principal amount of such series of
Debt Securities and any limit, on the aggregate principal
amount of the Debt Securities of the series which may be
authenticated and delivered under this Indenture (except for
Debt Securities authenticated and delivered upon transfer
of, or in exchange for, or in lieu of, other Debt Securities
of such series pursuant to Sections 3.04, 3.05, 3.06, 11.06
or 13.07);
(3) the percentage of the principal amount at which
the Debt Securities of such series will be issued and, if
other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of
acceleration of the maturity or upon redemption thereof or
the method by which such portion shall be determined.
(4) the date or dates on which or periods during which
the Debt Securities of the series may be issued, and the
date or dates or the method by which such date or dates will
be determined, on which the principal of (and premium, if
any, on) the Debt Securities of such series are or may be
payable (which, if so provided in such Board Resolution or
supplemental indenture, may be determined by the Company
from time to time as set forth in the Debt Securities of the
series issued from time to time);
(5) the rate or rates (which may be variable or fixed)
at which the Debt Securities of the series shall bear
interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such
interest, if any, shall accrue or the method by which such
date or dates shall be determined (which, in either case or
both, if so provided in such Board Resolution or
supplemental indenture, may be determined by the Company
from time to time and set forth in the Debt Securities of
the series issued from time to time); and the Interest
Payment Dates on which such interest shall be payable (or
the method of determination thereof), and the Regular Record
Dates, if any, for the interest payable on such Interest
Payment Dates and the notice, if any, to Holders regarding
the determination of interest, the manner of giving such
notice, the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months
and any conditions or contingencies as to the payment of
interest in cash or otherwise, if any;
(6) the place or places, if any, in addition to or
instead of the Corporate Trust Office of the Trustee (in the
case of Registered Securities) or the principal London
office of the Trustee (in the case of Bearer Securities),
where the principal of (and premium, if any) and interest on
Debt Securities of the series shall be payable; the extent
to which, or the manner in which, any interest payable on
any Global Note on an Interest Payment Date will be paid, if
other than in the manner provided in Section 3.07; the
extent, if any, to which the provisions of the last sentence
of Section 12.01 shall apply to the Debt Securities of the
series; and the manner in which any principal of, or
premium, if any, on, any Global Note will be paid, if other
than as set forth elsewhere herein and whether any Global
Note will require any notation to evidence payment of
principal or interest;
(7) the obligation, if any, of the Company to redeem,
repay, purchase or offer to purchase Debt Securities of the
series pursuant to any mandatory redemption, sinking fund or
analogous provisions or upon other conditions or at the
option of the Holder thereof and the period or periods
within which or the dates on which, the prices at which and
the terms and
17
<PAGE>
conditions upon which the Debt Securities of the series
shall be redeemed, repaid, purchased or offered to be
purchased, in whole or in part, pursuant to such obligation;
(8) the right, if any, of the Company to redeem the
Debt Securities of such series at its option and 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 such Debt Securities may be redeemed, if any, in whole
or in part, at the option of the Company or otherwise;
(9) if the coin or Currency in which the Debt
Securities shall be issuable is in Dollars, the
denominations of such Debt Securities if other than
denominations of $1,000 and any integral multiple thereof
(except as provided in Section 3.04);
(10) whether the Debt Securities of the series are to
be issued as Discount Securities and the amount of discount
with which such Debt Securities may be issued and, if other
than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.02;
(11) provisions, if any, for the defeasance or
discharge of certain of the Company's obligations with
respect to Debt Securities of the series;
(12) whether Debt Securities of the series are to be
issued as Registered Securities or Bearer Securities or
both, and, if Bearer Securities are issued, whether Coupons
will be attached thereto, whether such Bearer Securities of
the series may be exchanged for Registered Securities of the
series, as provided in Section 3.05(b) or otherwise and the
circumstances under which and the place or places at which
any such exchanges, if permitted, may be made;
(13) whether provisions for payment of additional
amounts or tax redemptions shall apply and, if such
provisions shall apply, such provisions; and, if Bearer
Securities of the series are to be issued, whether a
procedure other than that set forth in Section 3.04(b) shall
apply and, if so, such other procedure, and if the procedure
set forth in Section 3.04(b) shall apply, the forms of
certifications to be delivered under such procedure;
(14) if other than Dollars, the Foreign Currency or
Currencies in which Debt Securities of the series shall be
denominated or in which payment of the principal of (and
premium, if any) and interest on the Debt Securities of the
series may be made, and the particular provisions applicable
thereto and, if applicable, the amount of Debt Securities of
the series which entitles the Holder of a Debt Security of
the series or its proxy to one vote for purposes of Section
9.05;
(15) if the principal of (and premium, if any) or
interest on Debt Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in a
Currency other than that in which the Debt Securities are
denominated or payable without such election, in addition to
or in lieu of the provisions of Section 3.10, the period or
periods within which and the terms and conditions upon
which, such election may be made and the time and the manner
of determining the exchange rate or rates between the
Currency or Currencies in which the Debt Securities are
denominated or payable without such election and the
Currency or Currencies in which the Debt Securities are to
be paid if such election is made;
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<PAGE>
(16) the date as of which any Debt Securities of the
series shall be dated, if other than as set forth in Section
3.03;
(17) if the amount of payments of principal of (and
premium, if any) or interest on the Debt Securities of the
series may be determined with reference to an index,
including, but not limited to, an index based on a Currency
or Currencies other than that in which the Debt Securities
are denominated or payable, or any other type of index, the
manner in which such amounts shall be determined;
(18) if the Debt Securities of the series are
denominated or payable in a Foreign Currency, any other
terms concerning the payment of principal of (and premium,
if any) or any interest on such Debt Securities (including
the Currency or Currencies of payment thereof);
(19) the designation of the original Currency
Determination Agent, if any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear
interest, the applicable dates for purposes of Section 7.01;
(22) any addition to, or modification or deletion of,
any Events of Default, covenants or term of the
subordination provided for with respect to Debt Securities
of the series;
(23) if Bearer Securities of the series are to be
issued, (x) whether interest in respect of any portion of a
temporary Debt Security in global form (representing all of
the Outstanding Bearer Securities of the series) payable in
respect of any Interest Payment Date prior to the exchange
of such temporary Debt Security for definitive Debt
Securities of the series shall be paid to any clearing
organization with respect to the portion of such temporary
Debt Security held for its account and, in such event, the
terms and conditions (including any certification
requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date,
(y) the terms upon which interests in such temporary Debt
Security in global form may be exchanged for interests in a
permanent Global Note or for definitive Debt Securities of
the series and the terms upon which interests in a permanent
Global Note, if any, may be exchanged for definitive Debt
Securities of the series and (z) the cities and the
Authorized Newspapers designated for the purposes of giving
notices to Holders;
(24) whether the Debt Securities of the series shall be
issued in whole or in part in the form of one or more Global
Notes and, in such case, the U.S. Depositary or any Common
Depositary for such Global Note or Notes; and if the Debt
Securities of the series are issuable only as Registered
Securities, the manner in which and the circumstances under
which Global Notes representing Debt Securities of the
series may be exchanged for Registered Securities in
definitive form, if other than, or in addition to, the
manner and circumstances specified in Section 3.04(c);
(25) The designation, if any, of any depositaries,
trustees (other than the applicable Trustee), Paying Agents,
Authenticating Agents, Security Registrars (other than the
Trustee) or other agents with respect to the Debt Securities
of such series;
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<PAGE>
(26) If the Debt Securities of such series will be
issuable in definitive form only upon receipt of certain
certificates or other documents or upon satisfaction of
certain conditions, the form and terms of such certificates,
documents or conditions;
(27) Whether the Debt Securities of such series will be
convertible into shares of Common Stock and, if so, the
terms and conditions, which may be in addition to or in lieu
of the provisions contained in the Indenture, upon which
such Debt Securities will be so convertible, including the
conversion price and the conversion period;
(28) The portion of the principal amount of the Debt
Securities which will be payable upon declaration of
acceleration of the maturity thereof, if other than the
principal amount thereof;
(29) The nature, content and date for reports by the
Company to the holders of the Offered Debt Securities; and
(30) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be
substantially identical except as to denomination, rate of
interest, Stated Maturity and the date from which interest, if
any, shall accrue, which, as set forth above, may be determined
by the Company from time to time as to Debt Securities of a
series if so provided in or established pursuant to the authority
granted in a Board Resolution or in any such indenture
supplemental hereto, and except as may otherwise be provided in
or pursuant to such Board Resolution and (subject to Section
3.03) set forth in such Officers' Certificate, or in any such
indenture supplemental hereto. All Debt Securities of any one
series need not be issued at the same time, and unless otherwise
provided, a series may be reopened for issuance of additional
Debt Securities of such series.
If any of the terms of a series of Debt Securities is
established in or pursuant to a Board Resolution, a copy of such
Board Resolution 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.
-------------
In the absence of any specification pursuant to
Section 3.01 with respect to the Debt Securities of any series,
the Debt Securities of such series shall be issuable only as
Registered Securities in denominations of $1,000 and any integral
multiple thereof and shall be payable only in Dollars.
Section 3.03. Execution, Authentication, Delivery and
---------------------------------------
Dating.
------
The Debt Securities and the Coupons, if any, of any
series shall be executed on behalf of the Company by its
Chairman, a Vice Chairman, its President, one of its Vice
Presidents or its Treasurer, under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be
manual or facsimile.
Debt Securities and 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
20
<PAGE>
such individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Debt Securities
and Coupons or did not hold such offices at the date of such Debt
Securities and Coupons.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Debt
Securities, with appropriate Coupons, if any, of any series,
executed by the Company, to the Trustee for authentication,
together with a Company Order for the authentication and delivery
of such Debt Securities and Coupons and the Trustee in accordance
with the Company Order shall authenticate and deliver such Debt
Securities and Coupons; provided, however, that, in connection
-------- -------
with its sale during the "restricted period" (as defined in
Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided,
--------
further, that a Bearer Security (other than a temporary Global
-------
Note in bearer form) may be delivered outside the United States
in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished to
the Euro-clear operator or to CEDEL a certificate substantially
in the form set forth in Exhibit A to this Indenture. If all the
Debt Securities of any one series are not to be issued at one
time and if a Board Resolution or supplemental indenture relating
to such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such
Debt Securities such as interest rate, Stated Maturity, date of
issuance and date from which interest, if any, shall accrue. If
any Debt Security shall be represented by a permanent Global
Note, then, for purposes of this Section and Section 3.04, the
notation of a beneficial owner's interest therein upon original
issuance of such Debt Security or upon exchange of a portion of a
temporary Global Note shall be deemed to be delivery in
connection with the original issuance of such beneficial owner's
interest in such permanent Global Note. Except as permitted by
Section 3.06 or 3.07, the Trustee shall not authenticate and
deliver any Bearer Security unless all Coupons for interest then
matured have been detached and cancelled.
The Trustee shall be entitled to receive, and (subject
to Section 6.01) shall be fully protected in relying upon, prior
to the authentication and delivery of the Debt Securities and
Coupons of such series, (i) the supplemental indenture or the
Board Resolution by or pursuant to which the form and terms of
such Debt Securities and Coupons have been approved and (ii) an
Opinion of Counsel substantially to the effect that:
(1) all instruments furnished by the Company to the
Trustee in connection with the authentication and delivery
of such Debt Securities and Coupons conform to the
requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and
deliver such Debt Securities and Coupons;
(2) the forms and terms of such Debt Securities and
Coupons have been established in conformity with the
provisions of this Indenture;
(3) in the event that the forms or terms of such Debt
Securities and Coupons have been established in a
supplemental indenture, the execution and delivery of such
supplemental indenture has been duly authorized by all
necessary corporate action of the Company, such supplemental
indenture has been duly executed and delivered by the
Company and, assuming due authorization, execution and
delivery by the Trustee, is a valid and binding obligation
enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
21
<PAGE>
(4) the execution and delivery of such Debt Securities
and Coupons have been duly authorized by all necessary
corporate action of the Company and such Debt Securities and
Coupons have been duly executed by the Company and, assuming
due authentication by the Trustee and delivery by the
Company, are valid and binding obligations enforceable
against the Company in accordance with their terms, entitled
to the benefit of the Indenture, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law)
and subject to such other exceptions as counsel shall
request and as to which the Trustee shall not reasonably
object; and
(5) the amount of Debt Securities Outstanding of such
series, together with the amount of such Debt Securities,
does not exceed any limit established under the terms of
this Indenture on the amount of Debt Securities of such
series that may be authenticated and delivered.
The Trustee shall not be required to authenticate such
Debt Securities and Coupons if the issuance of such Debt
Securities and Coupons pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Debt
Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary or
permanent or other definitive Bearer Security in global form)
shall be dated as of the date of original issuance of the first
Debt Security of such series to be issued, except as otherwise
provided pursuant to Section 3.01 with respect to the Bearer
Securities of any series.
No Debt Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Debt Security a certificate of
authentication substantially in one of the forms provided for
herein duly executed by the Trustee or by an Authenticating
Agent, and such certificate upon any Debt Security shall be
conclusive evidence, and the only evidence, that such Debt
Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Debt Security
to the Trustee for cancellation as provided in Section 3.08
together with a written statement (which need not comply with
Section 1.02) stating that such Debt Security has never been
issued and sold by the Company, for all purposes of this
Indenture such Debt Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 3.04. Temporary Debt Securities; Exchange of
--------------------------------------
Temporary Global Notes for Definitive Bearer Securities; Global
---------------------------------------------------------------
Notes Representing Registered Securities.
----------------------------------------
(a) Pending the preparation of definitive Registered
Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Registered Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination for Registered Securities of such series,
substantially of the tenor of the definitive Registered
Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Registered Securities
may determine, as conclusively evidenced by their execution of
such Registered Securities. Every such temporary Registered
Security shall be executed by the Company and shall be
authenticated and delivered
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<PAGE>
by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the definitive
Registered Securities in lieu of which they are issued. In the
case of any series issuable as Bearer Securities, such temporary
Debt Securities may be in global form, representing such of the
Outstanding Debt Securities of such series as shall be specified
therein.
Except in the case of temporary Debt Securities in
global form (which shall be exchanged in accordance with the
provisions of the following paragraphs), if temporary Debt
Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such
series shall be exchangeable for definitive Debt Securities of
such series, of a like Stated Maturity and with like terms and
provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of
Payment for such series, without charge to the Holder, except as
provided in Section 3.05 in connection with a transfer. Upon
surrender for cancellation of any one or more temporary Debt
Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized
denominations and of a like Stated Maturity and like terms and
provisions; provided, however, that no definitive Bearer Security
-------- -------
shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer
-------- -------
Security (including a permanent Bearer Security in global form)
shall be delivered in exchange for a temporary Bearer Security
only in compliance with the conditions set forth in Section 3.03.
Until so exchanged, the temporary Registered Securities of any
series shall in all respects be entitled to the same benefits
under this Indenture as definitive Registered Securities of such
series.
(b) Unless otherwise specified pursuant to Section
3.01, all Bearer Securities of a series shall be initially issued
in the form of a single temporary Bearer Security in global form
(a "temporary Global Note"). The Company shall execute, and upon
Company Order the Trustee shall authenticate, any temporary
Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same
conditions and in substantially the same manner, and with the
same effect, as definitive Bearer Securities, and the temporary
or permanent Global Note, as the case may be, shall, unless
otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of the Euro-clear Operator or
CEDEL, as the case may be, for credit to the account of the
Company (in the case of sales of Bearer Securities by the Company
directly to investors) or the managing underwriter (in the case
of sales of Bearer Securities by the Company to underwriters) or
such other accounts as the Company or the managing underwriter,
respectively, may direct.
On or after the date specified in or determined
pursuant to the terms of any temporary Global Note which (subject
to any applicable laws and regulations) shall be at least 40 days
after the issue date of a temporary Global Note (the "Exchange
Date"), the Debt Securities represented by such temporary Global
Note may be exchanged for definitive Debt Securities (subject to
the second succeeding paragraph) or Debt Securities to be
represented thereafter by one or more permanent Global Notes in
definitive form without interest coupons. On or after the
Exchange Date such temporary Global Note shall be surrendered by
the Common Depositary to the Trustee, as the Company's agent for
such purpose, at its principal office in London (or at such other
place specified outside the United States pursuant to Section
3.01) and following such surrender, the Trustee shall (1) endorse
the temporary Global Note to reflect the reduction of its
principal amount by an equal aggregate principal amount of such
Debt Security, (2) endorse the applicable permanent Global Note,
if any, to reflect the initial amount, or an increase in the
amount of Debt Securities represented thereby, (3) manually
authenticate such definitive Debt Securities (including any
permanent Global Note), (4) deliver such definitive Debt
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Securities to the Holder thereof or, if such definitive Debt
Security is a permanent Global Note, deliver such permanent
Global Note to the Common Depositary to be held outside the
United States for the accounts of the Euro-clear Operator or
CEDEL, as the case may be, for credit to the respective accounts
at Euro-clear Operator or CEDEL, as the case may be, designated
by or on behalf of the beneficial owners of such Debt Securities
(or to such other accounts as they may direct) and (5) redeliver
such temporary Global Note to the Common Depositary, unless such
temporary Global Note shall have been cancelled in accordance
with Section 3.08 hereof; provided, however, that, unless
-------- -------
otherwise specified in such temporary Global Note, upon such
presentation by the Common Depositary, such temporary Global Note
shall be accompanied by a certificate dated the Exchange Date or
a subsequent date and signed by the Euro-clear Operator, as to
the portion of such temporary Global Note held for its account
then to be exchanged for definitive Debt Securities (including
any permanent Global Note), and a certificate dated the Exchange
Date or a subsequent date and signed by CEDEL, as to the portion
of such temporary Global Note held for its account then to be
exchanged for definitive Debt Securities (including any permanent
Global Note), each substantially in the form set forth in
Exhibit B to this Indenture. Each certificate substantially in
the form of Exhibit B hereto of the Euro-clear Operator or CEDEL,
as the case may be, shall be based on certificates of the account
holders listed in the records of the Euro-clear Operator or
CEDEL, as the case may be, as being entitled to all or any
portion of the applicable temporary Global Note. An account
holder of the Euro-clear Operator or CEDEL, as the case may be,
desiring to effect the exchange of an interest in a temporary
Global Note for an interest in definitive Debt Securities
(including any permanent Global Note) shall instruct the
Euro-clear Operator or CEDEL, as the case may be, to request such
exchange on its behalf and shall deliver to the Euro-clear
Operator or CEDEL, as the case may be, a certificate
substantially in the form of Exhibit A hereto and dated no
earlier than 10 days prior to the Exchange Date. Until so
exchanged, temporary Global Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive
Debt Securities (including any permanent Global Note) of the same
series authenticated and delivered hereunder, except as to
payment of interest, if any.
The delivery to the Trustee by the Euro-clear Operator
or CEDEL of any certificate substantially in the form of Exhibit
B hereto may be relied upon by the Company and the Trustee as
conclusive evidence that a corresponding certificate or
certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of
this Indenture.
On or prior to the Exchange Date, the Company shall
deliver to the Trustee definitive Debt Securities in an aggregate
principal amount equal to the principal amount of such temporary
Global Note, executed by the Company. At any time, on or after
the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the
request of or on behalf of the beneficial owner, a Debt Security
represented by a temporary Global Note or a permanent Global
Note, as the case may be, may be exchanged, in whole or from time
to time in part, for definitive Debt Securities without charge
and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global Note or such permanent
Global Note, an equal aggregate principal amount of definitive
Debt Securities of the same series of authorized denominations
and of a like Stated Maturity and with like terms and conditions,
as the portion of such temporary Global Note or such permanent
Global Note to be exchanged, which, unless the Debt Securities of
the series are not issuable both as Bearer Securities and as
Registered Securities, as contemplated by Section 3.01, shall be
in the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that definitive Bearer
-------- -------
Securities shall be delivered in exchange for a portion of the
temporary Global Note or the permanent Global Note only in
compliance with the requirements of the second preceding
paragraph. On or prior to the forty-fifth day following receipt
by the Trustee of such notice with respect to a Debt Security,
or, if such day is not a Business
24
<PAGE>
Day, the next succeeding Business Day, the temporary Global Note
or the permanent Global Note, as the case may be, shall be
surrendered by the Common 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 Debt Securities without
charge following such surrender, upon the request of the
Euro-clear Operator or CEDEL, as the case may be, and the Trustee
shall (1) endorse the applicable temporary Global Note or the
permanent Global Note to reflect the reduction of its principal
amount by the aggregate principal amount of such Debt Security,
(2) cause the terms of such Debt Security and Coupons, if any, to
be entered on a definitive Debt Security, (3) manually
authenticate such definitive Debt Security, and (4) if a Bearer
Security is to be delivered, deliver such definitive Debt
Security outside the United States to the Euro-clear Operator or
CEDEL, as the case may be, for or on behalf of the beneficial
owner thereof, in exchange for a portion of such temporary Global
Note or the permanent Global Note.
Unless otherwise specified in such temporary Global
Note or the permanent Global Note, any such exchange shall be
made free of charge to the beneficial owners of such temporary
Global Note or the permanent Global Note, except that a Person
receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that
such Person does not take delivery of such definitive Debt
Securities in person at the offices of the Euro-clear Operator or
CEDEL. Definitive Debt Securities in bearer form to be delivered
in exchange for any portion of a temporary Global Note or the
permanent Global Note shall be delivered only outside the United
States. Notwithstanding the foregoing, in the event of
redemption or acceleration of all or any part of a temporary
Global Note prior to the Exchange Date, a permanent Global Note
or definitive Bearer Securities, as the case may be, will not be
issuable in respect of such temporary Global Note or such portion
thereof, and payment thereon will instead be made as provided in
such temporary Global Note.
Until exchanged in full as hereinabove provided, any
temporary Global Note or the permanent Global Note shall in all
respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of the same series and tenor
authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 3.01, interest
payable on such temporary Global Note on an Interest Payment Date
for Debt Securities of such series occurring prior to the
applicable Exchange Date shall be payable to the Euro-clear
Operator or CEDEL on such Interest Payment Date upon delivery by
the Euro-clear Operator or CEDEL to the Trustee of a certificate
or certificates substantially in the form set forth in Exhibit B
to this Indenture, for credit without further interest on or
after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary
Global Note on such Interest Payment Date and who have each
delivered to the Euro-clear Operator or CEDEL, as the case may
be, a certificate substantially in the form set forth in
Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and
delivered by the Trustee in exchange for a portion of a temporary
Global Note or the permanent Global Note shall not bear a coupon
for any interest which shall theretofore have been duly paid by
the Trustee to the Euro-clear Operator or CEDEL, or by the
Company to the Trustee in accordance with the provisions of this
Section 3.04.
With respect to Exhibits A and B to this Indenture, the
Company may, in its discretion and if required or desirable under
applicable law or as set forth in any Board Resolution or
Supplemental Indenture with respect to any Series of Debt
Securities, substitute one or more other forms of such exhibits
for such exhibits, eliminate the requirement that any or all
certificates be provided, or change the time that any certificate
may be required, provided that such substitute form or forms or
notice of elimination or change of such certification requirement
have theretofore been delivered to the Trustee with
25
<PAGE>
a Company Request and such form or forms, elimination or change
is reasonably acceptable to the Trustee.
(c) If the Company shall establish pursuant to Section
3.01 that the Registered Securities of a series are to be issued
in whole or in part in the form of one or more Global Notes, then
the Company shall execute and the Trustee shall, in accordance
with Section 3.03 and the Company Order with respect to such
series, authenticate and deliver one or more Global Notes in
temporary or permanent form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount
of the Outstanding Debt Securities of such series to be
represented by one or more Global Notes, (ii) shall be registered
in the name of the U.S. Depositary for such Global Note or Notes
or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Debt Security may
not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary, unless and until this Debt
Security is exchanged in whole or in part for Debt Securities in
definitive form."
Notwithstanding any other provision of this Section or
Section 3.05, unless and until it is exchanged in whole or in
part for Registered Securities in definitive form, a Global Note
representing all or a portion of the Registered Securities of a
series may not be transferred except as a whole by the U.S.
Depositary for such series to a nominee of such depositary or by
a nominee of such depositary to such depositary or another
nominee of such depositary or by such depositary or any such
nominee to a successor U.S. Depositary for such series or a
nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt
Securities of a series notifies the Company that it is unwilling
or unable to continue as U.S. Depositary for the Debt Securities
of such series or if at any time the U.S. Depositary for Debt
Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act
of 1934, as amended, or other applicable statute or regulation,
the Company shall appoint a successor U.S. Depositary with
respect to the Debt Securities of such series. If a successor
U.S. Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, the
Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the
Global Note or Notes representing such series in exchange for
such Global Note or Notes.
The Company may at any time and in its sole discretion
determine that the Registered Securities of any series issued in
the form of one or more Global Notes shall no longer be
represented by such Global Note or Notes. In such event, the
Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the
Global Note or Notes representing such series in exchange for
such Global Note or Notes.
If the Registered Securities of any series shall have
been issued in the form of one or more Global Notes and if an
Event of Default with respect to the Debt Securities of such
series shall have occurred and be continuing, the Company will
promptly execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt
Securities of such series, will
26
<PAGE>
authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the
principal amount of the Global Note or Notes representing such
series in exchange for such Global Note or Notes.
If specified by the Company pursuant to Section 3.01
with respect to Registered Securities of a series, the U.S.
Depositary for such series of Registered Securities may surrender
a Global Note for such series of Debt Securities in exchange in
whole or in part for Registered Securities of such series in
definitive form on such terms as are acceptable to the Company
and such depositary. Thereupon, the Company shall execute and
the Trustee shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a
new Registered Security or Securities of the same series, of
any authorized denomination as requested by such Person in
an aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Note and the
aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered
Securities in definitive form, such Global Note shall be
cancelled by the Trustee. Debt Securities issued in exchange for
a Global Note pursuant to this subsection (c) shall be registered
in such names and in such authorized denominations as the U.S.
Depositary for such Global Note, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Debt Securities to
the Persons in whose names such Debt Securities are so
registered.
Section 3.05. Registration, Transfer and Exchange.
-----------------------------------
(a) The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the registers
maintained in such office and in any other office or agency of
the Company in a Place of Payment being herein sometimes
collectively 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 Secu-
rities and of transfers and exchanges of Registered Securities.
The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Registered Securities and registering
transfers and exchanges of Registered Securities as herein
provided; provided, however, that the Company may appoint co-
-------- -------
Security Registrars or the terms of any series of Debt Securities
may provide otherwise.
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, one or more new Registered Securities
of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such
series and of a like Stated Maturity and with like terms and
conditions.
Except as otherwise provided in Section 3.04 and this
Section 3.05, at the option of the Holder, Registered Securities
of any series may be exchanged for other Registered Securities of
the same series of like aggregate principal amount and of a like
Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any
27
<PAGE>
Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver,
the Registered Securities which the Holder making the exchange is
entitled to receive.
(b) If and to the extent specified pursuant to Section
3.01, the provisions of this Section 3.05(b) shall be applicable
to Debt Securities of any series which are Bearer Securities. At
the option of the Holder thereof, to the extent permitted by law,
any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a
Registered Security of such series of like aggregate principal
amount and of a like Stated Maturity and with like terms and
conditions upon surrender of such Bearer Security at the
Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.01 for the purpose of
making any such exchanges. Any Coupon Security surrendered for
exchange shall be surrendered with all unmatured Coupons and any
matured Coupons in default attached thereto. 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 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 is 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 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 12.03, 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 exchange
for a Registered Security of the same series and of a like Stated
Maturity and with like terms and conditions after the close of
business at such office or agency on (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 proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date or proposed date for
payment, as the case may be (or, if such Coupon is so surrendered
with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), 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. The Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Security
or Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, the exchange of Bearer
Securities for Registered Securities will be subject to the
provisions of United States income tax laws and regulations
applicable to Debt Securities in effect at the time of such
exchange.
(c) Except as otherwise specified pursuant to Section
3.01, in no event may Registered Securities, including Registered
Securities received in exchange for Bearer Securities, be
exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or
exchange of Debt Securities shall be valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Debt Securities surrendered
for such transfer or exchange.
28
<PAGE>
Every Registered Security presented or surrendered for
transfer or exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge will be made for any transfer or
exchange of Debt Securities except as provided in Section 3.04(b)
or 3.06. The Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration, transfer or exchange of Debt
Securities, other than those 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 register,
transfer or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before the
day of the transmission of a notice of redemption of Debt
Securities of such series selected for redemption under Section
13.03 and ending at the close of business on the day of such
transmission, or (ii) to register, transfer or exchange any Debt
Security so selected for redemption in whole or in part, except
the unredeemed portion of any Debt Security being redeemed in
part.
Section 3.06. Mutilated, Destroyed, Lost and Stolen
-------------------------------------
Debt Securities.
---------------
If (i) any mutilated Debt Security or any mutilated
Coupon with the Coupon Security to which it appertains (and all
unmatured Coupons attached thereto) is surrendered to the Trustee
at its Corporate Trust Office (in the case of Registered
Securities) or at its principal London office (in the case of
Bearer Securities), or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft
of any Debt Security or any Coupon, and there is delivered to the
Company and the Trustee such security or indemnity as may be
required by them to save each of them and any Paying Agent
harmless, and neither the Company nor the Trustee receives notice
that such Debt Security or Coupon has been acquired by a bona
fide purchaser, then the Company shall execute and upon Company
Request the Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen
Debt Security or in exchange for the Coupon Security to which
such mutilated, destroyed, lost or stolen Coupon appertained, a
new Debt Security of the same series of like Stated Maturity and
with like terms and conditions and like principal amount, bearing
a number not contemporaneously Outstanding, and, in the case of a
Coupon Security, with such Coupons attached thereto that neither
gain nor loss in interest shall result from such exchange or
substitution.
In case any such mutilated, destroyed, lost or stolen
Debt Security or Coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Debt Security, pay the amount due on such Debt Security or
Coupon in accordance with its terms; provided, however, that
-------- -------
principal of (and premium, if any) and any interest on Bearer
Securities shall, except as otherwise provided in Section 12.03,
be payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by
Section 3.01 or except as otherwise provided in this Section
3.06, any interest on Bearer Securities shall be payable only
upon presentation and surrender of the Coupons appertaining
thereto.
Upon the issuance of any new Debt Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in respect thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
29
<PAGE>
Every new Debt Security or Coupon of any series issued
pursuant to this Section shall constitute an original additional
contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debt Security or 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 Debt Securities or Coupons of that series 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 Debt Securities or Coupons.
Section 3.07. Payment of Interest; Interest Rights
------------------------------------
Preserved.
---------
(a) Interest on any Registered Security which is
payable and is punctually paid or duly provided for on any
Interest Payment Date shall be paid to the Person in whose name
such Registered Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such
Registered Security upon any transfer or exchange subsequent to
the Regular Record Date. Unless otherwise specified as
contemplated by Section 3.01 with respect to the Debt Securities
of any series, payment of interest on Registered Securities shall
be made at the place or places specified pursuant to Section 3.01
or, at the option of the Company, by check mailed to the address
of the Person entitled thereto as such address shall appear in
the Security Register or, if provided pursuant to Section 3.01,
by wire transfer to an account designated by the Registered
Holder.
(b) Interest on any Coupon Security which is payable
and is punctually paid or duly provided for on any Interest
Payment Date shall be paid to the Holder of the Coupon which has
matured on such Interest Payment Date upon surrender of such
Coupon on such Interest Payment Date at the principal London
office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 3.01.
Interest on any Bearer Security (other than a Coupon
Security) which is payable and is punctually paid or duly
provided for on any Interest Payment Date shall be paid to the
Holder of the Bearer Security upon presentation of such Bearer
Security and notation thereon on such Interest Payment Date at
the principal London office of the Trustee or at such other Place
of Payment outside the United States specified pursuant to
Section 3.01.
Unless otherwise specified pursuant to Section 3.01, at
the direction of the Holder of any Bearer Security or Coupon
payable in Dollars, payment on such Bearer Security or Coupon
will be made by check drawn on a bank in The City of New York or,
if agreeable to the Trustee, by wire transfer to a Dollar account
maintained by such Holder outside the United States. If such
payment at the offices of all Paying Agents outside the United
States becomes illegal or is effectively precluded because of the
imposition of exchange controls or similar restrictions on the
full payment or receipt of such amounts in Dollars, the Company
will appoint an office or agent in the United States at which
such payment may be made. Unless otherwise specified pursuant to
Section 3.01, at the direction of the Holder of any Bearer
Security or Coupon payable in a Foreign Currency, payment on such
Bearer Security or Coupon will be made by a check drawn on a bank
outside the United States or by wire transfer to an appropriate
account maintained by such Holder outside the United States.
Except as provided in this paragraph, no payment on any Bearer
Security or Coupon will be made by mail to an address in the
United States or by wire transfer to an account in the United
States.
30
<PAGE>
(c) Any interest on any Debt Security which is payable
but is not punctually paid or duly provided for on any Interest
Payment Date (herein called "Defaulted Interest") shall, if such
Debt Security is a Registered Security, forthwith cease to be
payable to the Registered Holder on the relevant Regular Record
Date by virtue of his having been such Registered 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 such
Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such
Registered Security and the date of the proposed payment,
and at the same time the Company shall deposit with the
Trustee an amount of money in the Currency or Currency unit
in which the Debt Securities of such series are payable
(except as otherwise specified pursuant to Sections 3.01 or
3.10) 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
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which date
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 the Holders of such Registered Securities at
their addresses as they appear 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 such Registered Securities (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).
(2) The Company may make payment of any Defaulted
Interest on Registered Securities in any other lawful manner
not inconsistent with the requirements of any securities
exchange on which such Registered 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.
(d) Any Defaulted Interest payable in respect of
Bearer Securities of any series shall be payable pursuant to such
procedures as may be satisfactory to the Trustee in such manner
that there is no discrimination between the Holders of Registered
Securities (if any) and Bearer Securities of such series, and
notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, in the
manner provided in Section 1.05 not more than 25 days and not
less than 20 days prior to the date of the proposed payment.
(e) Subject to the foregoing provisions of this
Section, each Debt Security delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other Debt
Security shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Debt Security.
31
<PAGE>
Section 3.08. Cancellation.
------------
Unless otherwise specified pursuant to Section 3.01 for
Debt Securities of any series, all Debt Securities surrendered
for payment, redemption, transfer, exchange or credit against any
sinking fund and all Coupons surrendered for payment or exchange
shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Registered Securities and matured
Coupons so delivered shall be promptly cancelled by the Trustee.
All Bearer Securities and unmatured Coupons so delivered shall be
held by the Trustee and, upon instruction by the Company Order,
shall be cancelled or held for reissuance. Bearer Securities and
unmatured Coupons held for reissuance may be reissued only in
exchange for Bearer Securities of the same series and of like
Stated Maturity and with like terms and conditions pursuant to
Section 3.05 or in replacement of mutilated, lost, stolen or
destroyed Bearer Securities of the same series and of like Stated
Maturity and with like terms and conditions or the related
Coupons pursuant to Section 3.06. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation
or reissuance shall be deemed to be delivered for cancellation
for all purposes of this Indenture and the Securities. The
Company may at any time deliver to the Trustee for cancellation
any Debt Securities or Coupons 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
Debt Securities previously authenticated hereunder which the
Company has not issued, and all Debt Securities or Coupons so
delivered shall be promptly cancelled by the Trustee. No Debt
Securities or Coupons shall be authenticated in lieu of or in
exchange for any Debt Securities or Coupons cancelled as provided
in this Section, except as expressly permitted by this Indenture.
All cancelled Debt Securities and Coupons held by the Trustee
shall be delivered to the Company upon Company Request. The
acquisition of any Debt Securities or Coupons by the Company
shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until such Debt
Securities or Coupons are surrendered to the Trustee for
cancellation. In the case of any temporary Global Note which
shall be destroyed if the entire aggregate principal amount of
the Debt Securities represented thereby has been exchanged, the
certificate of destruction shall state that all certificates
required pursuant to Section 3.04 hereof and substantially in the
form of Exhibit B hereto, to be given by the Euro-clear Operator
or CEDEL, have been duly presented to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be. Permanent
Global Notes shall not be destroyed until exchanged in full for
definitive Debt Securities or until payment thereon is made in
full.
Section 3.09. Computation of Interest.
-----------------------
Except as otherwise specified pursuant to Section 3.01
for Debt Securities of any series, interest on the Debt
Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.10. Currency of Payments in Respect of Debt
---------------------------------------
Securities.
----------
(a) Except as otherwise specified pursuant to Section
3.01 for Bearer Securities of any series, payment of the
principal of (and premium, if any) and interest on Bearer
Securities of such series denominated in any Currency will be
made in such Currency.
(b) With respect to Registered Securities of any
series not permitting the election provided for in paragraph (c)
below or the Holders of which have not made the election provided
for in paragraph (c) below, except as provided in paragraph (e)
below, payment of the principal of (and premium, if any) and any
interest on any Registered Security of such series will be made
in the Currency in which such Registered Security is payable.
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(c) It may be provided pursuant to Section 3.01 with
respect to the Registered Securities of any series that Holders
shall have the option, subject to paragraphs (e) and (f) below,
to receive payments of principal of (and premium, if any) and any
interest on such Registered Securities in any of the Currencies
which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance
satisfactory to the Trustee, not later than the close of business
on the Election Date 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 (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 or 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 notice of redemption
has been given by the Company pursuant to Article Thirteen). Any
Holder of any such Registered Security who shall not have
delivered any such election to the Trustee by 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 paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above
has been provided for pursuant to Section 3.01, then not later
than the fourth Business Day after the Election Date for each
payment date, the Trustee will deliver to the Company a written
notice specifying, in the Currency in which each series of the
Registered Securities is payable, the respective aggregate
amounts of principal of (and premium, if any) and any interest on
the Registered Securities to be paid on such payment date,
specifying the amounts 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 (c) above. If the
election referred to in paragraph (c) above has been provided for
pursuant to Section 3.01 and if at least one Holder has made such
election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee an Exchange Rate
Officer's Certificate in respect of the Currency payments to be
made on such payment date. The Currency amount receivable by
Holders of Registered Securities who have elected payment in a
Currency as provided in paragraph (c) above shall be determined
by the Company on the basis of the applicable Market Exchange
Rate in effect on the third Business Day (the "Valuation Date")
immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a
Foreign Currency, the ECU or any other Currency unit in which any
of the Debt Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (c)
above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the
applicable Debt Securities denominated or payable in such Foreign
Currency, the ECU or such other Currency unit occurring after the
last date on which such Foreign Currency, the ECU or such other
Currency unit was used (the "Conversion Date"), the Dollar shall
be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by
the Trustee or any Paying Agent to the Holders of such Debt
Securities with respect to such payment date shall be the Dollar
Equivalent of the Foreign Currency or, in the case of a Currency
unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Currency Determination Agent, if any, or, if
there shall not be a Currency Determination Agent, then by the
Trustee, in the manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated
in any Currency shall have elected to be paid in another Currency
as provided in paragraph (c) above, and a Conversion Event occurs
with respect to such elected Currency, such Holder shall receive
payment in the Currency in which
33
<PAGE>
payment would have been made in the absence of such election. 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 (e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency"
shall be determined by the Currency Determination Agent, if any,
or, if there shall not be a Currency Determination Agent, then by
the Trustee, 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.
(h) The "Dollar Equivalent of the Currency Unit" shall
be determined by the Currency Determination Agent, if any, or, if
there shall not be a Currency Determination Agent, then by the
Trustee, and subject to the provisions of paragraph (i) below,
shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for such Component Currency on the Valuation
Date with respect to each payment.
(i) For purposes of this Section 3.10 the following
terms shall have the following meanings:
A "Component Currency" shall mean any Currency which,
on the Conversion Date, was a component Currency of the
relevant Currency unit, including, but not limited to, the
ECU.
A "Specified Amount" of a Component Currency shall mean
the number of units of such Component Currency or fractions
thereof which were represented in the relevant Currency
unit, including, but not limited to, the ECU, on the
Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the
same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single
Currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single
Currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed
in such single Currency, and such amount shall thereafter be
a Specified Amount and such single Currency shall thereafter
be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more
Currencies, the Specified Amount of such Component Currency
shall be replaced by amounts of such two or more Currencies
with appropriate Dollar equivalents 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 on such date, 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, 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 record date with respect
to any payment date, and with respect to the Maturity shall
mean the record date (if within 16 or fewer days prior to
the Maturity) immediately preceding the Maturity, and with
respect to any series of Debt Securities whose record date
immediately preceding the Maturity is more than 16 days
prior to the Maturity
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or any series of Debt Securities for which no record dates
are provided with respect to interest payments, shall mean
the date which is 16 days prior to the Maturity.
(j) All decisions and determinations of the Trustee or
the Currency Determination Agent, if any, regarding the Dollar
Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit and the Market Exchange Rate 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 and all Holders of the Debt Securities denominated or
payable in the relevant Currency. In the event of a Conversion
Event with respect to a Foreign Currency, the Company, after
learning thereof, will immediately give written notice thereof to
the Trustee (and the Trustee will promptly thereafter give notice
in the manner provided in Section 1.05 to the Holders) specifying
the Conversion Date. In the event of a Conversion Event with
respect to the ECU or any other Currency unit in which Debt
Securities are denominated or payable, the Company, after
learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give written
notice in the manner provided in Section 1.05 to the Holders)
specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Company, after learning
thereof, will similarly give written notice to the Trustee. The
Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the
Currency Determination Agent, if any, and shall not otherwise
have any duty or obligation to determine such information
independently.
(k) For purposes of any provision of the Indenture
where the Holders of Outstanding Debt Securities may perform an
Act which requires that a specified percentage of the Outstanding
Debt Securities of all series perform such Act and for purposes
of any decision or determination by the Trustee of amounts due
and unpaid for the principal (and premium, if any) and interest
on the Debt Securities of all series in respect of which moneys
are to be disbursed ratably, the principal of (and premium, if
any) and interest on the Outstanding Debt Securities denominated
in a Foreign Currency will be the amount in Dollars based upon
the Market Exchange Rate for Debt Securities of such series, as
of the date for determining whether the Holders entitled to
perform such Act have performed it, or as of the date of such
decision or determination by the Trustee, as the case may be.
Section 3.11. Judgments.
---------
If for the purpose of obtaining a judgment in any court
with respect to any obligation of the Company hereunder or under
any Debt Security, it shall become necessary to convert into any
other Currency any amount in the Currency due hereunder or under
such Debt Security, then such conversion shall be made at the
Market Exchange Rate as in effect on the date the Company shall
make payment to any Person in satisfaction of such judgment. If
pursuant to any such judgment, conversion shall be made on a date
other than the date payment is made and there shall occur a
change between such Market Exchange Rate and the Market Exchange
Rate as in effect on the date of payment, the Company agrees to
pay such additional amounts (if any) as may be necessary to
ensure that the amount paid is equal to the amount in such other
Currency which, when converted at the Market Exchange Rate as in
effect on the date of payment or distribution, is the amount then
due hereunder or under such Debt Security. Any amount due from
the Company under this Section 3.11 shall be due as a separate
debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of
any Debt Security. In no event, however, shall the Company be
required to pay more in the Currency or Currency unit due
hereunder or under such Debt Security at the Market Exchange Rate
as in effect when payment is made than the amount of Currency
stated to be due hereunder or under such Debt Security so that in
any event the Company's obligations hereunder or under such Debt
Security will be
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<PAGE>
effectively maintained as obligations in such Currency, and the
Company shall be entitled to withhold (or be reimbursed for, as
the case may be) any excess of the amount actually realized upon
any such conversion over the amount due and payable on the date
of payment or distribution.
Section 3.12. Exchange Upon Default.
---------------------
If default is made in the payments referred to in
Section 12.01, the Company hereby undertakes that upon
presentation and surrender of a permanent Global Note to the
Trustee (or to any other Person or at any other address as the
Company may designate in writing), on any Business Day on or
after the maturity date thereof the Company will issue and the
Trustee will authenticate and deliver to the bearer of such
permanent Global Note duly executed and authenticated definitive
Debt Securities with the same issue date and maturity date as set
out in such permanent Global Note.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture, with respect to the Debt Securities of
any series (if all series issued under this Indenture are not to
be affected), shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of
transfer or exchange of such Debt Securities herein expressly
provided for and rights to receive payments of principal (and
premium, if any) and interest on such Debt Securities) and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of
such series theretofore authenticated and delivered (other
than (i) Debt Securities and Coupons of such series which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06, (ii) Coupons
appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived under
Section 3.05, (iii) Coupons appertaining to Bearer
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 13.06, and (iv) Debt Securities and
Coupons of such 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 12.04)
have been delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any, of
such series not theretofore delivered to the Trustee for
cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
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(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee
for the giving of notice by the Trustee in the
name, and at the expense, of the Company,
and the Company, either complies with any other condition or
terms specified pursuant to Section 3.01, or if not so
specified in the case of (i), (ii) or (iii) of this
subclause (B), has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for such
purpose an amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided
pursuant to Section 3.01 or 3.10) sufficient to pay and
discharge the entire indebtedness on such Debt Securities
for principal (and premium, if any) and interest to the date
of such deposit (in the case of Debt Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be; provided, however, in
-------- -------
the event a petition for relief under the Federal bankruptcy
laws, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency or other
similar law, is filed with respect to the Company within 91
days after the deposit and the Trustee is required to return
the deposited money to the Company, the obligations of the
Company under this Indenture with respect to such Debt
Securities shall not be deemed terminated or discharged;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company;
(3) the Company has delivered to the Trustee 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 such series have been complied with; and
(4) the Company has delivered to the Trustee an
Opinion of Counsel or a ruling by the Internal Revenue
Service to the effect that Holders of the Debt Securities of
the series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and
discharge.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.07,
the obligations of the Trustee to any Authenticating Agent under
Section 6.14, the obligations of the Company under Section 12.01,
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 12.04, shall survive. If, after the deposit referred to
in Section 4.01 has been made, (x) the Holder of a Debt Security
is entitled to, and does, elect pursuant to Section 3.10(c), to
receive payment in a Currency other than that in which the
deposit pursuant to Section 4.01 was made, or (y) if a Conversion
Event occurs with respect to the Currency in which the deposit
was made or elected to be received by the Holder pursuant to
Section 3.10(c), then the indebtedness represented by such Debt
Security shall be fully discharged to the extent that the deposit
made with respect to such Debt Security shall be converted into
the Currency in which such payment is made.
Section 4.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of
Section 12.04, all money deposited with the Trustee pursuant to
Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Debt Securities and
Coupons, if any, 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
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determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has
been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
-----------------
"Event of Default" wherever used herein with respect to
Debt Securities of any series 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, pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any
Debt Security or any payment with respect to the Coupons, if
any, of such series 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 (and
premium, if any, on) any Debt Security of such series at its
Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Debt Security of
such series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically
dealt with or which expressly has been included in this
Indenture solely for the benefit of Debt Securities of a
series other than such series), and continuance of such
default or breach for a period of 30 days after there has
been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the
Holders of at least 30% in principal amount of the
Outstanding Debt Securities of such series, a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry of a decree or order for relief in
respect of the Company by a court having jurisdiction in the
premises in an involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other
similar law, or a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any
applicable Federal or State law, or appointing a receiver,
liquidator, assignee, custodian, 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 60
consecutive days; or
(6) the commencement by the Company of a voluntary
case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or the consent
by it to the entry of an order for
38
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relief in an involuntary case under any such law or to the
appointment of a receiver, liquidator, assignee, custodian,
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 its
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
(7) any other Event of Default provided with respect
to Debt Securities of that series pursuant to Section 3.01.
Section 5.02. Acceleration of Maturity; Rescission and
----------------------------------------
Annulment.
---------
If an Event of Default with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Debt Securities
of such series may declare the principal amount (or, if any Debt
Securities of such series are Discount Securities, such portion
of the principal amount of such Discount Securities as may be
specified in the terms of such Discount Securities) of all the
Debt Securities of such 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) plus accrued and unpaid interest
(and premium, if payable) shall become immediately due and
payable. Upon payment of such amount in the Currency in which
such Debt Securities are denominated (except as otherwise
provided pursuant to Sections 3.01 or 3.10), all obligations of
the Company in respect of the payment of principal of the Debt
Securities of such series shall terminate.
At any time after such a declaration of acceleration
with respect to Debt Securities of any series has been made 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
Debt Securities of such series, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee
a sum in the Currency in which such Debt Securities are
denominated (except as otherwise provided pursuant to
Section 3.01 or 3.10) sufficient to pay
(A) all overdue installments of interest on all Debt
Securities or all overdue payments with respect to
any Coupons of such series,
(B) the principal of (and premium, if any, on) any
Debt Securities of such series which have become
due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest on each Debt Security of such series or
upon overdue payments on any Coupons of such
series at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its
agents
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and counsel; provided, however, that all sums
-------- -------
payable under this clause (D) shall be paid in
Dollars;
and
(2) All Events of Default with respect to Debt
Securities of such series, other than the nonpayment of the
principal of Debt Securities of such series which has become
due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission and waiver shall affect any subsequent
default or impair any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for
----------------------------------------
Enforcement by Trustee.
----------------------
The Company covenants that if
(1) default is made in the payment of any installment
of interest on any Debt Security or any payment with respect
to any Coupons when such interest or payment becomes due and
payable and such default continues for a period of 30 days,
(2) default is made in the payment of principal of (or
premium, if any, on) any Debt Security at the Maturity
thereof, or
(3) default is made in the making or satisfaction of
any sinking fund payment or analogous obligation when the
same becomes due pursuant to the terms of the Debt
Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Debt Securities or of such
Coupons, the amount then due and payable on such Debt Securities
or matured Coupons, for the principal (and premium, if any) and
interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue
principal (and premium, if any) and upon overdue installments of
interest, at the Overdue Rate; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amount forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt
Securities and Coupons, and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt 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 Debt Securities and Coupons of such
series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
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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 proceedings, or any
voluntary or involuntary case under the Federal bankruptcy laws,
as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and Coupons, if any, of a
particular series or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether
the principal of such Debt Securities shall then be due and
payable as therein expressed or by declaration of acceleration or
otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (or, if the Debt Securities of such series are
Discount Securities, such portion of the principal amount as
may be due and payable with respect to such series pursuant
to a declaration in accordance with Section 5.02) (and
premium, if any) and interest owing and unpaid in respect of
the Debt Securities and Coupons of such series and to file
such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders of such Debt
Securities and Coupons 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 receiver, assignee, trustee, custodian, liquidator,
sequestrator (or other similar official) in any such proceeding
is hereby authorized by each such Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to
the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the 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 any plan of reorganization, arrangement,
adjustment or composition affecting the Debt Securities and any
Coupons of such series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without
----------------------------------
Possession of Debt Securities.
-----------------------------
All rights of action and claims under this Indenture or
the Debt Securities and the Coupons, if any, of any series may be
prosecuted and enforced by the Trustee without the possession of
any of such Debt Securities or Coupons or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Debt Securities or Coupons in respect of which such judgment has
been recovered.
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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 (and premium, if any) or
interest, upon presentation of the Debt Securities or Coupons of
any series in respect of which money has been collected and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due 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
on the Debt Securities or Coupons of such series, 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 Debt
Securities or Coupons for principal (and premium, if any)
and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
Section 5.07. Limitation on Suits.
-------------------
No Holder of any Debt Security or Coupon of any series
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
such series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Debt Securities of such 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 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 Debt Securities of such 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 such Holders or of
the Holders of Outstanding Debt Securities or Coupons of any
other series, 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. For
the protection and enforcement of the provisions of this Section
5.07, each and every Holder of Debt Securities or Coupons of any
series and the Trustee for such series shall be entitled to such
relief as can be given at law or in equity.
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Section 5.08. Unconditional Right of Holders to
---------------------------------
Receive Principal, Premium and Interest.
---------------------------------------
Notwithstanding any other provision in this Indenture,
the Holder of any Debt Security or of any 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
3.07) interest on such Debt Security or Coupon on the respective
Stated Maturity or Maturities expressed in such Debt Security or
Coupon (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment and
interest thereon, and such right shall not be impaired without
the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Trustee
and the Holders shall, subject to any determination in such
proceeding, be restored severally and respectively to their
former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise expressly provided elsewhere in
this Indenture, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder 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 any acquiescence therein. Every
right and remedy given by this Indenture 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 Debt 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 Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture;
(2) subject to the provisions of Section 6.01, the
Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a
Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would be
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unjustly prejudicial to the Holders of Debt Securities of
such series not joining in any such direction; and
(3) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Section 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt Securities of any series
may on behalf of the Holders of all the Debt Securities of any
such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Debt Security of such series, or in
the payment of any sinking fund installment or analogous
obligation with respect to the Debt Securities of such
series, or
(2) in respect of a covenant or provision hereof which
pursuant to Article Eleven cannot be modified or amended
without the consent of the Holder of each Outstanding Debt
Security of such series 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 the Debt Securities of
such series under this Indenture, but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
Section 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of
any Debt Security or any Coupon by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit other than the Trustee of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal
amount of the Outstanding Debt Securities of any series, or to
any suit instituted by any Holder of a Debt Security or Coupon
for the enforcement of the payment of the principal of (or
premium, if any) or interest on such Debt Security or the payment
of any Coupon on or after the respective Stated Maturity or
Maturities expressed in such Debt Security or Coupon (or, in the
case of redemption, on or after the Redemption Date).
Section 5.15. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not
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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 the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt
Securities of any series has occurred and is continuing, the
Trustee shall, with respect to the Debt Securities of such
series, exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that
(1) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it with
respect to Debt Securities of any series in good faith in
accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Debt Securities of
such 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; and
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(4) the Trustee shall not be required 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 with respect to Debt Securities or Coupons, if any, of
any series, the Trustee shall give notice to all Holders of Debt
Securities and Coupons of such series of such default hereunder
known to the Trustee, unless such default shall have been cured
or waived; provided, however, that, except in the case of a
-------- -------
default in the payment of the principal of (or premium, if any)
or interest on any Debt Security or Coupon of such series or in
the payment of any sinking fund installment with respect to Debt
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
Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders
of Debt Securities and of Coupons 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 Debt Securities of
such series no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of
Default with respect to Debt Securities of such series.
Notice given pursuant to this Section 6.02 shall be
transmitted by mail:
(1) to all Registered Holders, as the names and
addresses of the Registered Holders appear in the Security
Register;
(2) to such Holders of Bearer Securities of any series
as have within two years preceding such transmission, filed
their names and addresses with the Trustee for such series
for that purpose; and
(3) to each Holder of a Debt Security of any series
whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section
7.02(a) of this Indenture.
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,
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;
46
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(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders of
Debt Securities of any series 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 or attorney;
and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent (including any agent appointed pursuant to Section 3.10(j))
or attorney appointed with due care by it hereunder.
Section 6.04. Not Responsible for Recitals or Issuance
----------------------------------------
of Debt Securities.
------------------
The recitals contained herein and in the Debt
Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of
this Indenture or of the Debt Securities or Coupons, if any, of
any series. The Trustee shall not be accountable for the use or
application by the Company of any Debt Securities or the proceeds
thereof.
Section 6.05. May Hold Debt Securities.
------------------------
The Trustee, any Paying Agent, the Security Registrar
or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities or
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, Paying Agent, Security Registrar or such other
agent.
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<PAGE>
Section 6.06. Money Held in Trust.
-------------------
Money in any Currency held by the Trustee or any Paying
Agent in trust hereunder need not be segregated from other funds
except to the extent required by law. Neither the Trustee nor
any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed with
the Company.
Section 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars 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 in Dollars 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 in Dollars the Trustee for, and to
hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this trust or performance of its duties
hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a claim
prior to the Debt Securities and Coupons, if any, upon all
property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of amounts due on the
Debt Securities and Coupons.
The obligations of the Company under this Section 6.07
to compensate and indemnify the Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness under this Indenture and shall survive the
satisfaction and discharge of this Indenture.
Section 6.08. Disqualification; Conflicting Interests.
---------------------------------------
(a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section with respect to
the Debt Securities of any series, then, within 90 days after
ascertaining that it has such conflicting interest, and if the
default (as hereinafter defined) to which such conflicting
interest relates has not been cured or duly waived or otherwise
eliminated before the end of such 90-day period, the Trustee
shall either eliminate such conflicting interest or, except as
otherwise provided below, resign with respect to the Debt
Securities of such series, and the Company shall take prompt
steps to have a successor appointed, in the manner and with the
effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply
with the provisions of subsection (a) of this Section with
respect to the Debt Securities of any series, the Trustee shall,
within 10 days after
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<PAGE>
the expiration of such 90-day period, transmit to all Holders of
Debt Securities of such series notice of such failure.
Notice given pursuant to this Section 6.08(b) shall be
transmitted by mail:
(1) to all Registered Holders, as the names and
addresses of the Registered Holders appear in the Security
Register;
(2) to such Holders of Bearer Securities of any series
as have, within two years preceding such transmission, filed
their names and addresses with the Trustee for such series
for that purpose; and
(3) to each Holder of a Debt Security of any series
whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section
7.02(a) of this Indenture.
(c) For the purposes of this Section, the Trustee
shall be deemed to have a conflicting interest with respect to
the Debt Securities of any series, if there shall exist an Event
of Default (as such term is defined herein, but exclusive of any
period of grace or requirement of notice) with respect to such
Debt Securities and
(1) the Trustee is trustee under this Indenture with
respect to the Outstanding Debt Securities of any series
other than that series or is trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities, of the
Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral
consists of Debt Securities issued under this Indenture,
provided that there shall be excluded from the operation of
this paragraph this Indenture with respect to the Debt
Securities of any series other than that series and any
other indenture or indentures under which other securities,
or certificates of interest or participation in other
securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or
indentures (and all series of securities issuable
thereunder) are wholly unsecured and rank equally and
such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the
Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to the Debt
Securities of such series and one or more other series
or the provisions of such other indenture or indentures
which are so likely to involve a material conflict of
interest as to make it necessary, in the public
interest or for the protection of investors to
disqualify the Trustee from acting as such under this
Indenture with respect to the Debt Securities of such
series and such other series or under such other
indenture or indentures, or
(ii) the Company shall have sustained the burden
of proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under
this Indenture with respect to the Debt Securities of
such series and such other series or such other
indenture or indentures is not so likely to involve a
material conflict of interest as to make it necessary
in the public interest or for the protection of
investors to disqualify
49
<PAGE>
the Trustee from acting as such under this Indenture
with respect to the Debt Securities of such series and
such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee,
appointee or representative of the Company, or of an
underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting,
except that (i) one individual may be a director or an
executive officer, or both, of the Trustee and a director or
an executive officer, or both, of the Company but may not be
at the same time an executive officer of both the Trustee
and the Company; (ii) if and so long as the number of
directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the
Company; and (iii) the Trustee may be designated by the
Company or by any underwriter for the Company to act in the
capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent, escrow agent, or depositary or in any
other similar capacity, or, subject to the provisions of
paragraph (l) of this subsection, to act as trustee, whether
under an indenture or otherwise;
(5) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Company or by
any director, partner or executive officer thereof, or 20%
or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10% or
more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any
director, partner or executive officer thereof or is
beneficially owned, collectively, by any two or more such
persons;
(6) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this subsection defined), (i) 5% or more
of the voting securities, or 10% or more of any other class
of security, of the Company not including the Debt
Securities issued under this Indenture and securities issued
under any other indenture under which the Trustee is also
trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default,
5% or more of the voting securities of any person who, to
the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is
under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default,
10% or more of any class of security of any person who, to
the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
(9) the Trustee owns, on the date of such Event of
Default or any anniversary of such Event of Default while
such Event of Default remains outstanding, in the capacity
of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25% or more of the voting
securities, or of any class of
50
<PAGE>
security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this
subsection. As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator
or testamentary trustee of an estate which included them,
the provisions of the preceding sentence shall not apply,
for a period of not more than two years from the date of
such acquisition, to the extent that such securities
included in such estate do not exceed 25% of such voting
securities or 25% of any such class of security. Promptly
after the dates of any such Event of Default and annually in
each succeeding year that such Event of Default continues,
the Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of
such dates. If the Company fails to make payment in full of
the principal of (or premium, if any) or interest on any of
the Debt Securities when and as the same becomes due and
payable, and such failure continues for 30 days thereafter,
the Trustee shall make a prompt check of its holdings of
such securities in any of the above-mentioned capacities as
of the date of the expiration of such 30-day period, and
after such date, notwithstanding the foregoing provisions of
this paragraph, all such securities so held by the Trustee,
with sole or joint control over such securities vested in
it, shall be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of
this subsection; or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 6.13(b) of
this Indenture, the Trustee shall be or shall become a
creditor of the Company.
For the purposes of paragraph (1) of this subsection,
the term "series of securities" or "series" means a series, class
or group of securities issuable under an indenture pursuant to
whose terms holders of one such series may vote to direct the
Trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another series; provided,
--------
that "series of securities" or "series" shall not include any
series of securities issuable under an indenture if all such
series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to
(9), inclusive, of this subsection shall not be construed as
indicating that the ownership of such percentages of the
securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of
this subsection only, (i) the terms "security" and "securities"
shall include only such securities as are generally known as
corporate securities, but shall not include any note or other
evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (ii)
an obligation shall be deemed to be "in default" when a default
in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be
deemed to be the owner or holder of (A) any security which it
holds as collateral security, as trustee or otherwise, for an
obligation which is not in default as defined in clause (ii)
above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or
(C) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar
representative capacity.
51
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(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference
to the Company means every person who, within one year prior
to the time as of which the determination is made, has
purchased from the Company with a view to, or has offered or
sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation
in any such undertaking, or has participated or has had a
participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a person
whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(2) The term "director" means any director of a
corporation, or any individual performing similar functions
with respect to any organization whether incorporated or
unincorporated.
(3) The term "person" means an individual, a
corporation, a partnership, an association, a joint stock
company, a trust, an estate, an unincorporated organization,
or a government or political subdivision thereof. As used
in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in
the direction or management of the affairs of a person, or
any security issued under or pursuant to any trust,
agreement or arrangements whereby a trustee or trustees or
agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of
the affairs of a person.
(5) The term "Company" means any obligor upon the Debt
Securities of any series.
(6) The term "executive officer" means the president,
every vice president, every trust officer, the cashier, the
secretary, and the treasurer of a corporation, and any
individual customarily performing similar functions with
respect to any organization, whether incorporated or
unincorporated, but shall not include the chairman of the
board of directors.
(e) The percentages of voting securities and other
securities specified in this Section shall be calculated in
accordance with the following provisions:
(1) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in
this Section (each of whom is referred to as a "person" in
this paragraph) means such amount of the outstanding voting
securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting
securities of such person are entitled to cast in the
direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of
a person means such percentage of the aggregate amount of
securities of the class outstanding.
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(3) The term "amount", when used with regard to
securities means the principal amount if relating to
evidences of indebtedness, the number of shares if relating
to capital shares, and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means issued and not held
by or for the account of the issuer. The following
securities shall not be deemed outstanding within the
meaning of this definition:
(i) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same
class;
(ii) securities of an issuer held in a sinking
fund relating to another class of securities of the
issuer, if the obligation evidenced by such other class
of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default
as to principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer
-------- -------
shall be deemed outstanding if any person other than the
issuer is entitled to exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class
as another security if both securities confer upon the
holder or holders thereof substantially the same rights and
privileges; provided, however, that, in the case of secured
-------- -------
evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and
provided, further, that, in the case of unsecured evidences
-------- -------
of indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or
not they are issued under a single indenture.
(f) Except in the case of a default in the payment of
the principal of or interest on any Debt Security of any series,
or in the payment of any sinking or purchase fund installment,
the Trustee shall not be required to resign as provided by this
Section if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity
for hearing thereon, that:
(1) the Event of Default may be cured or waived during
a reasonable period and under the procedures described in
such application; and
(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Debt
Securities.
The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders
otherwise.
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Section 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least $75,000,000, subject to supervision or examination by
Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly
controlling, controlled by, or under common control with the
Company shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of
---------------------------------------
Successor.
---------
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to
the Debt Securities of one or more series by giving written
notice thereof to the Company. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Debt Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Debt Securities of any series and a successor
Trustee appointed by Act of the Holders of a majority in
principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
6.08(a) with respect to the Debt Securities of any series
after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Debt Security of
such series for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.09 with respect to the Debt Securities of any
series and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Debt Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide
Holder of a Debt Security of any 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 for the
Debt Securities of such series.
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(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Debt Securities of one
or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to
the Debt Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to
the Debt 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
Debt 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 Debt Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Debt 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, become the
successor Trustee with respect to the Debt Securities of such
series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect
to the Debt Securities of any series shall have been so appointed
by the Company or the Holders of such series and accepted
appointment in the manner hereinafter provided, any Holder who
has been a bona fide Holder of a Debt Security of such series for
at least six months may, subject to Section 5.14, 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 Debt Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Debt
Securities of any series and each appointment of a successor
Trustee with respect to the Debt Securities of any series in the
manner and to the extent provided in Section 1.05 to the Holders
of Debt Securities of such series. Each notice shall include the
name of the successor Trustee with respect to the Debt Securities
of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In the case of an appointment hereunder of a
successor Trustee with respect to all Debt Securities, each 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 request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if
any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Debt Securities of one or
more (but not all) series, the Company, the retiring Trustee and
each successor Trustee with respect to the Debt Securities of one
or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt
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 Debt 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 Debt 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
55
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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
any 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 other trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of any 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
Debt 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 Debt Securities of that or those series to which
the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
Section 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 that such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Debt 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 Debt Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been
authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section 6.13. Preferential Collection of Claims
---------------------------------
Against Company.
---------------
(a) Subject to subsection (b) of this Section, if the
Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within three
months prior to a default, as defined in subsection (c) of this
Section, or subsequent to such default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold
in a special account for the benefit of the Trustee individually,
the Holders of the Debt Securities and of the Coupons, if any,
and the holders of other indenture securities (as defined in
subsection (c) of this Section):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three-month period and valid as against
the Company and its other creditors, except any such
56
<PAGE>
reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or
from the exercise of any right of set-off which the Trustee
could have exercised if a voluntary or involuntary case had
been commenced in respect of the Company under the Federal
bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or
other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such three-month period, or an amount equal
to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Company and
------- -------
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
Person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings or
reorganization pursuant to the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar
law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such three-month
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three-month period and
such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default, as defined in subsection (c) of
this Section, would occur within three months, or
(D) to receive payment on any claim referred to in
paragraph (B) or (C) against the release of any property
held as security for such claim as provided in paragraph (B)
or (C), as the case may be, to the extent of the fair value
of such property.
For the purposes of paragraphs (B), (C) and (D),
property substituted after the beginning of such three-month
period for property held as security at the time of such
substitution shall, to the extent of the fair value of the
property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for
the purpose of repaying or refunding any pre-existing claim of
the Trustee as such creditor, such claim shall have the same
status as such pre-existing claim.
If the Trustee shall be required to account, the funds
and property held in such special account and the proceeds
thereof shall be apportioned among the Trustee, the Holders and
the holders of other indenture securities in such manner that the
Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted or any other applicable Federal
57
<PAGE>
or State bankruptcy, insolvency or other similar law, the same
percentage of their respective claims, figured before crediting
to the claim of the Trustee anything on account of the receipt by
it from the Company of the funds and property in such special
account and before crediting to the respective claims of the
Trustee and the Holders and the holders of other indenture
securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, but after crediting thereon
receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends
and from the funds and property so held in such special account.
As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, whether such
distribution is made in cash, securities, or other property, but
shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceedings for reorganization is
pending shall have jurisdiction (i) to apportion among the
Trustee and the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in
part, to give to the provisions of this paragraph due
consideration in determining the fairness of the distributions to
be made to the Trustee and the Holders and the holders of other
indenture securities with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise
the value of any securities or other property held in such
special account or as security for any such claim, or to make a
specific allocation of such distributions as between the secured
and unsecured portions of such claim, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after
the beginning of such three-month period shall be subject to the
provisions of this subsection as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this subsection if and only
if the following conditions exist:
(i) the receipt of property or reduction of claim,
which would have given rise to the obligation to account, if
such Trustee had continued as Trustee, occurred after the
beginning of such three-month period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of
subsection (a) of this Section a creditor relationship arising
from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by
the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the Lien of this Indenture
or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the
Holders at the time and in the manner provided in this
Indenture;
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(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented, or an indebtedness created as a
result of goods or securities sold in a cash transaction as
defined in subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
(6) The acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper as defined in subsection (c) of this
Section.
(c) for the purposes of this Section only:
(1) The term "default" means any failure to make
payment in full of the principal of or interest on any of
the Debt Securities or upon the other indenture securities
when and as such principal or interest becomes due and
payable.
(2) The term "other indenture securities" means
securities upon which the Company is an obligor outstanding
under any other indenture (i) under which the Trustee is
also trustee, (ii) which contains provisions substantially
similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of
the funds and property held in such special account.
(3) The term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks
and payable upon demand.
(4) The term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the Debt
Securities.
Section 6.14. Appointment of Authenticating Agent.
-----------------------------------
As long as any Debt Securities of a series remain
Outstanding, upon a Company Request, there shall be an
authenticating agent (the "Authenticating Agent") appointed, for
such period as the Company shall elect, by the Trustee for such
series of Debt Securities to act as its agent on its behalf and
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subject to its direction in connection with the authentication
and delivery of each series of Debt Securities for which it is
serving as Trustee. Debt Securities of each such series
authenticated by such Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by such Trustee. Wherever
reference is made in this Indenture to the authentication and
delivery of Debt Securities of any series by the Trustee for such
series or to the Trustee's Certificate of Authentication, such
reference shall be deemed to include authentication and delivery
on behalf of the Trustee for such series by an Authenticating
Agent for such series and a Certificate of Authentication
executed on behalf of such Trustee by such Authenticating Agent,
except that only the Trustee may authenticate Debt Securities
upon original issuance and pursuant to Section 3.06 hereof. Such
Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States
of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $10,000,000 and subject to supervision or
examination by Federal or State authority. If such Authen-
ticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or
examining authority, then for purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall
be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which any 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 any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Debt Securities for which it
served as Authenticating Agent without the execution or filing of
any paper or any further act on the part of the Trustee for such
series or such Authenticating Agent. Any Authenticating Agent
may at any time, and if it shall cease to be eligible shall,
resign by giving written notice of resignation to the applicable
Trustee and to the Company.
Upon receiving such a notice of resignation or upon
such a termination, or in case at any time any Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14 with respect to one or more or
all series of Debt Securities, the Trustee for such series shall
upon Company Request appoint a successor Authenticating Agent,
and the Company shall provide notice of such appointment to all
Holders of Debt Securities of such series in the manner and to
the extent provided in Section 1.05. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect
as if originally named as Authenticating Agent herein. The
Trustee for the Debt Securities of such series agrees to pay to
the Authenticating Agent for such series from time to time
reasonable compensation for its services, and the Trustee shall
be entitled to be reimbursed for such payment, subject to the
provisions of Section 6.07. The Authenticating Agent for the
Debt Securities of any series shall have no responsibility or
liability for any action taken by it as such at the direction of
the Trustee for such series.
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If an appointment with respect to one or more series is
made pursuant to this Section, the Debt 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 series of Debt Securities issued
under the within mentioned Indenture.
--------------------------------
--------------------------------
As Trustee
By:________________________
As Authenticating Agent
By:________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and
------------------------------------
Addresses of Holders.
--------------------
The Company will furnish or cause to be furnished to
the Trustee with respect to Registered Securities of each series
for which it acts as Trustee:
(a) semi-annually on a date not more than 15 days
after each Regular Record Date with respect to an Interest
Payment Date, if any, for the Registered Securities of such
series (or on semi-annual dates in each year to be determined
pursuant to Section 3.01 if the Registered Securities of such
series do not bear interest), a list, in such form as the Trustee
may reasonably require, of the names and addresses of the
Registered Holders as of the date 15 days next preceding each
such Regular Record Date (or such semi-annual dates, as the case
may be); and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be
-------- -------
the Security Registrar for such series, no such list need be
furnished.
The Company shall also be required to furnish to the
Trustee at all such times set forth above all information in the
possession or control of the Company or any of its Paying Agents
other than the Trustee as to the names and addresses of the
Holders of Bearer Securities of all series; provided, however,
-------- -------
that the Company shall have no obligation to investigate any
matter relating to any Holders of Bearer Securities of any
series.
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Section 7.02. Preservation of Information;
----------------------------
Communication to Holders.
------------------------
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and
addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 7.01 received by it in the
capacity of Paying Agent (if so acting) hereunder, and filed with
it within the two preceding years pursuant to Section 7.03(c)(2).
The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished,
destroy any information received by it as Paying Agent (if so
acting) hereunder upon delivering to itself as Trustee, not
earlier than 45 days after an Interest Payment Date, a list
containing the names and addresses of the Holders obtained from
such information since the delivery of the next previous list, if
any, destroy any list delivered to itself as Trustee which was
compiled from information received by it as Paying Agent (if so
acting) hereunder upon the receipt of a new list so delivered,
and destroy not earlier than two years after filing, any
information filed with it pursuant to Section 7.03(c)(2).
(b) If three or more Holders (hereinafter referred to
as "applicants") apply in writing to the Trustee, and furnish to
the Trustee reasonable proof that each such applicant has owned a
Debt Security for a period of at least six months preceding the
date of such application, and such application states that the
applicants desire to communicate with other Holders of Debt
Securities of a particular series (in which case the applicants
must hold Debt Securities of such series) or with all Holders of
Debt Securities with respect to their rights under this Indenture
or under the Debt Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election,
either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.02(a), or
(ii) inform such applicants as to the approximate
number of Holders of Debt Securities of such series or of
all Debt Securities, as the case may be, whose names and
addresses appear in the information preserved at the time by
the Trustee in accordance with Section 7.02(a), and as to
the approximate cost of mailing to such Holders the form of
proxy or other communication, specified in such application.
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
written request of such applicants, mail to the Holders of Debt
Securities of such series or all Holders, as the case may be,
whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.02(a), a
copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of
the Holders of Debt Securities of such series or all Holders, as
the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if
after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and
opportunity for hearing, that all the
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objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all
such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Debt Securities, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 7.02(b),
regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of
mailing of any material pursuant to a request made under
Section 7.02(b).
Section 7.03. Reports by Trustee.
------------------
(a) Within 60 days after January 15 of each year,
commencing January 15, 1996, the Trustee shall, to the extent
required by the Trust Indenture Act, transmit to all Holders of
Debt Securities of any series with respect to which it acts as
Trustee, in the manner hereinafter provided in this Section 7.03,
a brief report dated such date with respect to any of the
following events which may have occurred within the previous 12
months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 6.09
and its qualifications under Section 6.08;
(2) the creation of or any material change to a
relationship specified in paragraph (1) through (10) of
Section 6.08(c) of this Indenture;
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and
for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Debt Securities of such
series, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but
may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Outstanding Debt Securities of such
series on the date of such report;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the Company
(or any other obligor on the Debt Securities of such series)
to the Trustee in its individual capacity, on the date of
such report, with a brief description of any property held
as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner
described in Section 6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any additional issue of Debt Securities which the
Trustee has not previously reported; and
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(7) any action taken by the Trustee in the performance
of its duties hereunder which it has not previously reported
and which in its opinion materially affects the Debt
Securities of such series, except action in respect of a
default, notice of which has been or is to be withheld by
the Trustee in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders
of Debt Securities of any series (whose names and addresses
appear in the information preserved at the time by the Trustee in
accordance with Section 7.02 (a)) for which it acts as the
Trustee, as hereinafter provided, a brief report with respect to
the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to subsection (a) of this Section (or
if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the Debt
Securities of such series, on property or funds held or collected
by it as Trustee, and which it has not previously reported
pursuant to this subsection, except that the Trustee for each
series shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate
10% or less of the principal amount of the Debt Securities of
such series Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section 7.03 shall be
transmitted by mail:
(1) to all Holders of Registered Securities, as the
names and addresses of such Holders of Registered Securities
appear in the Security Register;
(2) to such Holders of Bearer Securities of any series
as have, within two years preceding such transmission,
filed their names and addresses with the Trustee for such
series for that purpose; and
(3) except in the cases of reports pursuant to
subsection (b) of this Section 7.03, to each Holder of a
Debt Security of any series whose name and address appear in
the information preserved at the time by the Trustee in
accordance with Section 7.02(a).
(d) 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 Debt Securities of such series are
listed, with the Commission and also with the Company. The
Company will notify the Trustee when any series of Debt
Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
------------------
Unless otherwise specified with respect to a particular
series of Debt Securities pursuant to Section 3.01, the Company
will:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information,
documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934, as
amended. Notwithstanding that the Company may not be
required to remain subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended, or otherwise report on an annual and quarterly
basis on forms provided for such annual
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and quarterly reporting pursuant to rules and regulations
promulgated by the Commission, the Company shall continue to
file with the Commission and provide the Trustee and the
Holders of each series of Debt Securities with, without cost to
each Holder, (a) within 90 days after the end of each fiscal
year, annual reports on Form 10-K (or any successor or
comparable form) containing the information required to be
contained therein (or required in such successor or
comparable form); (b) within 45 days after the end of each
of the first three fiscal quarters of each fiscal year,
reports on Form 10-Q (or any successor or comparable form);
and (c) promptly from time to time after the occurrence of
an event required to be therein reported, such other reports
on Form 8-K (or any successor or comparable form) containing
the information required to be contained therein (or
required in any successor or comparable form); provided,
--------
however, that the Company shall not be obligated to file
-------
such reports with the Commission if the Commission does not
permit such filings. The Company will in all cases, without
cost to each recipient, provide copies of such information
to the Holders of the Debt Securities of each series and, if
they are not permitted to file such reports with the
Commission, shall make available information to prospective
purchasers and to securities analysts and broker-dealers
upon their request;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such additional information,
documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and
regulations; and
(3) transmit to all Holders of Debt Securities, in the
manner and to the extent provided in Section 7.03, within
30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders.
---------------
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
are delivered to the Trustee, and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate
principal amount of the Outstanding Debt Securities of any series
may take any Act, the fact that the Holders of such specified
percentage have joined therein may be evidenced (a) by the
instrument or instruments executed by Holders in person or by
agent or proxy appointed in writing, or (b) by the record of
Holders voting in favor thereof at any meeting of such Holders
duly called and
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held in accordance with the provisions of Article Nine, or (c) by
a combination of such instrument or instruments and any such
record of such a meeting of Holders.
Section 8.02. Proof of Ownership; Proof of Execution
--------------------------------------
of Instruments by Holder.
------------------------
The ownership of Registered Securities of any series
shall be proved by the Security Register for such series or by a
certificate of the Security Registrar for such series.
The ownership of Bearer Securities shall be proved by
production of such Bearer Securities or by a certificate executed
by any bank or trust company, which certificate shall be dated
and shall state that on the date thereof a Bearer Security
bearing a specified identifying number or other mark was
deposited with or exhibited to the person executing such
certificate by the person named in such certificate, or by any
other proof of possession reasonably satisfactory to the Trustee.
The holding by the person named in any such certificate of any
Bearer Security specified therein shall be presumed to continue
for a period of one year unless at the time of determination of
such holding (1) another certificate bearing a later date issued
in respect of the same Bearer Security shall be produced, (2)
such Bearer Security shall be produced by some other person, (3)
such Bearer Security shall have been registered on the Security
Register, if, pursuant to Section 3.01, such Bearer Security can
be so registered, or (4) such Bearer Security shall have been
cancelled or paid.
Subject to the provisions of Sections 6.01, 6.03 and
9.05, proof of the execution of a writing appointing an agent or
proxy and of the execution of any instrument by a Holder or his
agent or proxy shall be sufficient and conclusive in favor of the
Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person
of any instrument may be proved by the certificate of any notary
public or other officer authorized to take acknowledgements of
deeds, that the person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation
or association or a member of a partnership on behalf of such
corporation, association or partnership, as the case may be, or
by any other person acting in a representative capacity, such
certificate or affidavit shall also constitute sufficient proof
of his authority.
The record of any Holders' meeting shall be proved in
the manner provided in Section 9.06.
The Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section so
long as the request is a reasonable one.
Section 8.03. Persons Deemed Owners.
---------------------
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Registered
Security is registered as the owner of such Registered Security
for the purpose of receiving payment of the principal of (and
premium, if any) and (subject to Section 3.07) interest, if any,
on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security 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. The
Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as
the absolute owner of such Bearer Security or Coupon for the
purposes of receiving payment thereof or on account
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thereof and for all other purposes whatsoever, whether or not
such Bearer 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. All payments made
to any Holder, or upon his order, shall be valid, and, to the
extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Debt
Security or Coupon.
Section 8.04. Revocation of Consents; Future Holders
--------------------------------------
Bound.
-----
At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any
Act by the Holders of the percentage in aggregate principal
amount of the Outstanding Debt Securities specified in this
Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of
which is shown by the evidence to be included in the Debt
Securities the Holders of which have consented to such Act may,
by filing written notice with the Trustee at the Corporate Trust
Office and upon proof of ownership as provided in Section 8.02,
revoke such Act so far as it concerns such Debt Security. Except
as aforesaid, any such Act taken by the Holder of any Debt
Security shall be conclusive and binding upon such Holder and,
subject to the provisions of Section 5.08, upon all future
Holders of such Debt Security and all past, present and future
Holders of Coupons, if any, appertaining thereto and of any Debt
Securities and Coupons issued on transfer or in lieu thereof or
in exchange or substitution therefor, irrespective of whether or
not any notation in regard thereto is made upon such Debt
Security or Coupons or such other Debt Securities or Coupons.
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.
--------------------
A meeting of Holders of any or all series may be called
at any time and from time to time pursuant to the provisions of
this Article Nine for any of the following purposes:
(1) to give any notice to the Company or to the
Trustee for such series, or to give any directions to the
Trustee for such series, or to consent to the waiving of any
default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of
the provisions of Article Five;
(2) to remove the Trustee for such series and appoint
a successor Trustee pursuant to the provisions of Article
Six;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 11.02; or
(4) to take any other action authorized to be taken by
or on behalf of the Holders of any specified aggregate
principal amount of the Outstanding Debt Securities of any
one or more or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
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Section 9.02. Call of Meetings by Trustee.
---------------------------
The Trustee for any series may at any time call a
meeting of Holders of such series to take any action specified in
Section 9.01, to be held at such time or times and at such place
or places as the Trustee for such series shall determine. Notice
of every meeting of the Holders 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 to
Holders of such series in the manner and to the extent provided
in Section 1.05. Such notice shall be given not less than 10
days nor more than 90 days prior to the date fixed for the
meeting.
Section 9.03. Call of Meetings by Company or Holders.
--------------------------------------
In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal
amount of the Outstanding Debt Securities of a series or of all
series, as the case may be, shall have requested the Trustee for
such series to call a meeting of Holders of any or all such
series by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 10 days after
the receipt of such request, then the Company or such Holders may
determine the time or times and the place or places for such
meetings and may call such meetings to take any action authorized
in Section 9.01, by giving notice thereof as provided in Section
9.02.
Section 9.04. Qualifications for Voting.
-------------------------
To be entitled to vote at any meeting of Holders a
Person shall be (a) a Holder of a Debt Security of the series
with respect to which such meeting is being held or (b) a Person
appointed by an instrument in writing as agent or proxy by such
Holder. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled
to vote at such meeting and their counsel and any representatives
of the Trustee for the series with respect to which such meeting
is being held and its counsel and any representatives of the
Company and its counsel.
Section 9.05. Regulations.
-----------
Notwithstanding any other provisions of this Indenture,
the Trustee for any series may make such reasonable regulations
as it may deem advisable for any meeting of Holders of such
series, in regard to proof of the holding of Debt 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.
The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders of such series as
provided in Section 9.03, in which case the Company or the
Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by a majority
vote of the meeting.
Subject to the provisos in the definition of
"Outstanding," at any meeting each Holder of a Debt Security of
the series with respect to which such meeting is being held or
proxy therefor shall be entitled to one vote for each $1,000
principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Debt Securities of such series
held or represented by him; provided,
--------
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however, that no vote shall be cast or counted at any meeting in
-------
respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote other than by
virtue of Outstanding Debt Securities of such series held by him
or instruments in writing duly designating him as the person to
vote on behalf of Holders of Debt Securities of such series. Any
meeting of Holders with respect to which a meeting was duly
called pursuant to the provisions of Section 9.02 or 9.03 may be
adjourned from time to time by a majority of such Holders present
and the meeting may be held as so adjourned without further
notice.
Section 9.06. Voting.
------
The vote upon any resolution submitted to any meeting
of Holders with respect to which such meeting is being held shall
be by written ballots on which shall be subscribed the signatures
of such Holders or of their representatives by proxy and the
serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Holders shall
be taken 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 transmitted as provided in Section
9.02. The record shall show the serial numbers of the Debt
Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
Section 9.07. No Delay of Rights by Meeting.
-----------------------------
Nothing contained in this Article Nine shall be deemed or
construed to authorize or permit, by reason of any call of a
meeting of Holders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this
Indenture or of the Debt Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, etc., Only on
--------------------------------------
Certain Terms.
-------------
The Company shall not consolidate with or merge with or
into or wind up into (whether or not the Company is the surviving
corporation) or sell, assign, convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
unless:
(1) the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties
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and assets of the Company substantially as an entirety (the
"successor corporation") shall be a corporation organized
and existing under the laws of the United States or any
State or territory thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the
Debt Securities and coupons, if any, and the performance of
every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing;
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance, transfer or
lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided
for relating to such transaction have been complied with;
and
(4) such other conditions as may be specified under
Section 3.01 with respect to any series of Debt Securities.
Section 10.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation with or merger into any other
corporation, or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety
in accordance with Section 10.01, the successor corporation
formed by such consolidation or into which the Company is merged
or 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 corporation had been named as the
Company herein.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent
---------------------------------------
of Holders.
----------
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another corporation
to the rights of the Company and the assumption by such
successor of the covenants of the Company contained herein
and in the Debt Securities and Coupons, if any; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Debt
Securities and the Coupons, if any, appertaining thereto
(and if such covenants are to be for the benefit of less
than all series, stating that such covenants are expressly
being included solely for the benefit of such series), or to
surrender any right or power herein conferred upon the
Company; or
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(3) to add any additional Events of Default (and if
such Events of Default are to be applicable to less than all
series, stating that such Events of Default are expressly
being included solely to be applicable to such series); or
(4) to add or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Debt Securities of any series in
bearer form, registrable or not registrable, and with or
without Coupons, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit the issuance of
Debt Securities of any series in uncertificated form,
provided that any such action shall not adversely affect the
--------
interests of the Holders of Debt Securities of any series or
any related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
--------
shall become effective only when there is no Outstanding
Debt Security or Coupon of any series created prior to the
execution of such supplemental indenture which is entitled
to the benefit of such provision and as to which such
supplemental indenture would apply; or
(6) to secure the Debt Securities or to provide that
any of the Company's obligations under any series of the
Debt Securities shall be guaranteed and the terms and
conditions for the release or substitution of such security
or guarantee; or
(7) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Article Four or Fifteen, provided
--------
that any such action shall not adversely affect the
interests of the Holders of Debt Securities of such series
or any other series of Debt Securities or any related
Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities
and Coupons, if any, of any series as permitted by
Sections 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
one or more series of Debt Securities 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
(10) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, to eliminate any conflict
between the terms hereof and the Trust Indenture Act or to
make any other provisions with respect to matters or
questions arising under this Indenture which shall not be
inconsistent with any provision of this Indenture; provided
--------
such other provisions shall not adversely affect the
interests of the Holders of Outstanding Debt Securities or
Coupons, if any, of any series created prior to the
execution of such supplemental indenture in any material
respect.
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Section 11.02. Supplemental Indentures With Consent of
---------------------------------------
Holders.
-------
With the written consent of the Holders of not less
than a majority in principal amount of the Outstanding Debt
Securities of each series affected by such supplemental indenture
voting separately, 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 under this Indenture of such Debt
Securities and Coupons, if any; provided, however, that no such
-------- -------
supplemental indenture shall, without the consent of the Holder
of each Outstanding Debt Security of each such series affected
thereby,
(1) conflict with the required provisions of the Trust
Indenture Act;
(2) except as specifically provided with respect to
any series of Debt Securities pursuant to Section 3.01, (a)
change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Debt Security, or
reduce the principal amount thereof or the interest thereon
or any premium payable upon redemption thereof (provided
that a requirement to offer to repurchase Debt Securities
shall not be deemed a redemption for this purpose), or
change the Stated Maturity of or reduce the amount of any
payment to be made with respect to any Coupon, or change the
Currency or Currencies in which the principal of (and
premium, if any) or interest on such Debt Security is
denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, or reduce the amount of,
or postpone the date fixed for, any payment under any
sinking fund or analogous provisions for any Debt Security,
or impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
limit the obligation of the Company to maintain a paying
agency outside the United States for payment on Bearer
Securities as provided in Section 12.03, or adversely affect
the right to convert any Debt Security into shares of Common
Stock of the Company as may be provided pursuant to
Section 3.01; or
(3) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of
whose Holders is required for any 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
(4) modify any of the provisions of this Section,
Section 5.13 or Section 12.07, 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 Debt Security of
each series 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 and Section
12.07, or the deletion of this proviso, in accordance with
the requirements of Sections 6.11 and 11.01(7); or
(5) modify any of the provisions of this Indenture
relating to the subordination of the Debt Securities in a
manner adverse to the Holders.
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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.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture with respect to
one or more particular series of Debt Securities and Coupons, if
any, or which modifies the rights of the Holders of Debt
Securities and Coupons 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 Debt securities and
Coupons, if any, of any other series.
Section 11.03. 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 adversely affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise in a material way.
Section 11.04. 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 Debt
Securities and Coupons theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 11.05. 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 11.06. Reference in Debt Securities to
-------------------------------
Supplemental Indentures.
-----------------------
Debt Securities and Coupons, if any, 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 shall so determine, new Debt
Securities and Coupons of any series so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities and Coupons of such
series.
Section 11.07. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the
appropriate Trustee of any supplemental indenture pursuant to
Section 11.02, the Company shall transmit, in the manner and to
the extent provided in Section 1.05, to all Holders of any series
of the Debt Securities affected thereby, a notice setting forth
in general terms the substance of such supplemental indenture.
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Section 11.08. Effect on Senior Indebtedness.
-----------------------------
No supplemental indenture shall adversely affect the
rights of any holder of Senior Indebtedness under Article Sixteen
without the consent of such holder.
ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and
---------------------------------
Interest.
--------
The Company covenants and agrees for the benefit of
each series of Debt Securities and Coupons, if any, that it will
duly and punctually pay the principal of (and premium, if any)
and interest on the Debt Securities in accordance with the terms
of the Debt Securities, the Coupons and this Indenture. Unless
otherwise specified as contemplated by Section 3.01 with respect
to any series of Debt Securities or except as otherwise provided
in Section 3.06, 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. If so
provided in the terms of any series of Debt Securities
established as provided in Section 3.01, the interest, if any,
due in respect of any temporary Global Note or permanent Global
Note, together with any additional amounts payable in respect
thereof, as provided in the terms and conditions of such Debt
Security, shall be payable only upon presentation of such Debt
Security to the Trustee for notation thereon of the payment of
such interest.
Section 12.02. Officer's Certificate as to Default.
-----------------------------------
Unless otherwise specifically provided for with respect
to any series of Debt Securities under Section 3.01, the Company
will deliver to the Trustee, on or before a date not more than
four months after the end of each fiscal year of the Company
(which on the date hereof is the calendar year) ending after the
date hereof, a certificate of the principal executive officer,
principal financial officer or principal accounting officer of
the Company stating whether or not to the best knowledge of the
signer thereof the Company is in compliance with all covenants
and conditions under this Indenture, and, if the Company shall be
in default, specifying all such defaults and the nature thereof
of which such signer may have knowledge. For purposes of this
Section, such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this
Indenture.
Section 12.03. Maintenance of Office or Agency.
-------------------------------
If Debt Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place of
Payment for such series an office or agency where Debt Securities
of that series may be presented or surrendered for payment, where
Debt Securities of that series may be surrendered for
registration of transfer or exchange, where Debt Securities of
that series that are convertible may be surrendered for
conversion, if applicable, and where notices and demands to or
upon the Company in respect of the Debt Securities of that series
and this Indenture may be served. If Debt Securities of a series
are issuable as Bearer Securities, the Company will maintain (A)
in the Borough of Manhattan, The City and State of New York, an
office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of
transfer, where Debt Securities of that series may be surrendered
for exchange or redemption, where notices and demands to or upon
the Company in respect of the Debt Securities of that series and
this Indenture may be served and where Bearer Securities of that
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series and related Coupons may be presented or surrendered for
payment in the circumstances described in the following paragraph
(and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which
is located outside the United States, an office or agency where
Debt Securities of that series and related Coupons may be
presented and surrendered for payment (including payment of any
additional amounts payable on Debt Securities of that series, if
so provided pursuant to Section 3.01); provided, however, that if
-------- -------
the Debt Securities of that series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland, 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 for the Debt
Securities of that series in London, Luxembourg or any other
required city located outside the United States, as the case may
be, so long as the Debt Securities of that series are listed on
such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any
Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series
may be surrendered for exchange or redemption and where notices
and demands to or upon the Company in respect of the Debt
Securities of that series and this Indenture may be served. 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 Corporate Trust
Office of the Trustee (in the case of Registered Securities) and
at the principal London office of the Trustee (in the case of
Bearer Securities), and the Company hereby appoints the Trustee
as its agent to receive all presentations, surrenders, notices
and demands.
No payment of principal, premium or interest 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, that, if the
-------- -------
Debt Securities of a series are denominated and payable in
Dollars, payment of principal of and any premium and interest on
any Bearer Security (including any additional amounts payable on
Securities of such series, if so provided pursuant to Section
3.01) shall be made at the office of the Company's Paying Agent
in the Borough of Manhattan, The City and State of New York, if
(but only if) payment in Dollars of the full amount of such
principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies 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.
The Company may also from time to time designate
different or additional offices or agencies to be maintained for
such purposes (in or outside of such Place of Payment), and may
from time to time rescind any such designations; provided,
--------
however, that no such designation or rescission shall in any
-------
manner relieve the Company of its obligations described in the
preceding paragraph. The Company will give prompt written notice
to the Trustee of any such additional designation or rescission
of designation and any change in the location of any such
different or additional office or agency.
Section 12.04. Money for Debt Securities; Payments To
--------------------------------------
Be Held in Trust.
----------------
If the Company shall at any time act as its own Paying
Agent with respect to any series of Debt Securities and Coupons,
if any, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Debt Securities
of such 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) or
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interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents with respect to any series of Debt Securities and Coupons,
it will, by or on each due date of the principal (and premium, if
any) or interest on any Debt Securities of such series, deposit
with any such Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled thereto,
and (unless any such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent with respect
to any series of Debt 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, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Debt
Securities of such series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Debt Securities of
such series) in the making of any payment of principal (and
premium, if any) or interest on the Debt Securities of such
series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any Debt
Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company upon Company
Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Debt Security or Coupon
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 transmitted in the manner and
to the extent provided by Section 1.05, 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
notification, any unclaimed balance of such money then remaining
will be repaid to the Company.
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Section 12.05. Corporate Existence.
-------------------
Subject to Article Ten, the Company will do or cause to
be done all things necessary to preserve and keep in full force
and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company
-------- -------
shall not be required to preserve any such right or franchise if
the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 12.06. Purchase of Debt Securities by Company.
--------------------------------------
If the Debt 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
purchase any Debt 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 Debt
Securities of that series as shown in The Stock Exchange Daily
Official List for the last trading day preceding the date of
purchase.
Section 12.07. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in
Sections 12.05, 12.07 and 12.08 (and, if so specified pursuant to
Section 3.01, any other covenant not set forth herein and
specified pursuant to Section 3.01 to be applicable to the
Securities of any series, except as otherwise provided pursuant
to Section 3.01) with respect to the Debt Securities of any
series if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Debt
Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or
condition except to the extent expressly so waived, and, until
such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article.
------------------------
Debt Securities of any series which are redeemable before
their Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified pursuant to Section 3.01 for
Debt Securities of any series) in accordance with this Article.
Section 13.02. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem (or, in the case
of Discount Securities, to permit the Holders to elect to
surrender for redemption) any Debt Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election
of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.03, the Company shall, at least
30 days before the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of
Debt Securities of such series
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to be redeemed. In the case of any redemption of Debt Securities
prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such
restrictions.
Section 13.03. Selection by Trustee of Debt Securities
---------------------------------------
to Be Redeemed.
--------------
Except in the case of a redemption in whole of the
Bearer Securities or the Registered Securities of such series, if
less than all the Debt Securities of any series are to be
redeemed at the election of the Company, the particular Debt
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding
Debt Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral
multiple thereof) of the principal amount of Debt Securities of
such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to
Section 3.02 in the Currency in which the Debt Securities of such
series are denominated. The portions of the principal amount of
Debt Securities so selected for partial redemption shall be equal
to the minimum authorized denominations for Debt Securities of
such series pursuant to Section 3.02 in the Currency in which the
Debt Securities of such series are denominated or any integral
multiple thereof, except as otherwise set forth in the applicable
form of Debt Securities. In any case when more than one
Registered Security of such series is registered in the same
name, the Trustee in its discretion may treat the aggregate
principal amount so registered as if it were represented by one
Registered Security of such series.
The Trustee shall promptly notify the Company in
writing of the Debt Securities selected for redemption and, in
the case of any Debt 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
Debt Securities shall relate, in the case of any Debt Security
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debt security which has been or is to be
redeemed.
Section 13.04. Notice of Redemption.
--------------------
Notice of redemption 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, not less than 30 days and not more than
60 days prior to the Redemption Date to the Holders of Debt
Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in
Section 1.05. Any notice so given shall be conclusively presumed
to have been duly given, whether or not the Holder receives such
notice. Failure to give such notice, or any defect in such
notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the
sufficiency of any notice of redemption with respect to the
Holder of any other Debt Security of such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) that Debt Securities of such series are being
redeemed by the Company pursuant to provisions contained in
this Indenture or the terms of the Debt Securities of such
series or a supplemental indenture establishing such series,
if such be the case, together with a brief statement of the
facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of
any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of
the particular Debt Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price
will become due and payable upon each such Debt Security to
be redeemed, and that interest thereon, if any, shall cease
to accrue on and after said date,
(6) that, unless otherwise specified in such notice,
Coupon Securities of any series, if any, surrendered for
redemption must be accompanied by all Coupons maturing
subsequent to the date fixed for redemption, failing which
the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price,
(7) the Place or Places of Payment where such Debt
Securities are to be surrendered for payment of the
Redemption Price,
(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 this Redemption Date pursuant to
Section 3.05(b) or otherwise, the last date on which such
exchanges may be made, and
(9) that the redemption is for a sinking fund, if such
is the case.
Section 13.05. Deposit of Redemption Price.
---------------------------
On or prior to the Redemption Date for any Debt
Securities, 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 12.04)
an amount of money in the Currency or Currencies in which such
Debt Securities are denominated (except as provided pursuant to
Section 3.01) sufficient to pay the Redemption Price of such Debt
Securities or any portions thereof which are to be redeemed on
that date.
Section 13.06. Debt Securities Payable on Redemption
-------------------------------------
Date.
----
Notice of redemption having been given as aforesaid,
any Debt Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price in the
Currency in which the Debt Securities of such series are payable
(except as otherwise specified pursuant to Section 3.01 or 3.10),
and from and after such date (unless the Company shall default in
the payment of the Redemption Price) such Debt Securities shall
cease to bear interest. Upon surrender of any such Debt Security
for redemption in accordance with said notice, such Debt 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 at an office or agency located outside the United
States (except as otherwise provided in Section 12.03) and,
unless otherwise specified as contemplated by Section 3.01, only
upon presentation and surrender of Coupons for such
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interest; and provided, further, that, unless otherwise specified
-------- -------
as contemplated by Section 3.01, installments of interest on
Registered Securities which have a Stated Maturity on or prior to
the Redemption Date for such Debt Securities shall be payable
according to the terms of such Debt Securities and the provisions
of Section 3.07.
If any Debt 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 Debt
Security.
If any Coupon Security surrendered for redemption shall
not be accompanied by all Coupons appertaining thereto maturing
on or after the Redemption Date, the Redemption Price for such
Coupon Security may be reduced by an amount equal to the face
amount of all such missing Coupons. If thereafter the Holder of
such Coupon shall surrender to any Paying Agent outside the
United States 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. 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.
Section 13.07. Debt Securities Redeemed in Part.
--------------------------------
Any Debt Security which is to be redeemed only in part
shall be surrendered at the Corporate Trust Office or such other
office or agency of the Company as is specified pursuant to
Section 3.01 (in the case of Registered Securities) and at an
office of the Trustee or such other office or agency of the
Company outside the United States as is specified pursuant to
Section 3.01 (in the case of Bearer Securities) with, if the
Company, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Security Registrar 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 deliver to the Holder of such Debt
Security without service charge, a new Debt Security or Debt
Securities of the same series, of like tenor and form, 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 Debt Security so surrendered,
and, in the case of a Coupon Security, with appropriate Coupons
attached. In the case of a Debt Security providing appropriate
space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt
Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to
any sinking fund for the retirement of Debt Securities of a
series except as otherwise specified pursuant to Section 3.01 for
Debt Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Debt Securities of any series is herein
referred to as a "mandatory sinking fund payment," and any
payment
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in excess of such minimum amount provided for by the terms of
Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of
Debt Securities of any series, the amount of any cash sinking
fund payment may be subject to reduction as provided in
Section 14.02. Each sinking fund payment shall be applied to the
redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
Section 14.02. Satisfaction of Mandatory Sinking Fund
--------------------------------------
Payments with Debt Securities.
-----------------------------
In lieu of making all or any part of a mandatory
sinking fund payment with respect to any Debt Securities of a
series in cash, the Company may at its option, at any time no
more than sixteen months and no less than 45 days prior to the
date on which such sinking fund payment is due, deliver to the
Trustee Debt Securities of such series (together with the
unmatured Coupons, if any, appertaining thereto) theretofore
purchased or otherwise acquired by the Company, except Debt
Securities of such series which have been redeemed through the
application of mandatory sinking fund payments pursuant to the
terms of the Debt Securities of such series, accompanied by a
Company Order instructing the Trustee to credit such obligations
and stating that the Debt Securities of such series were
originally issued by the Company by way of bona fide sale or
other negotiation for value, provided that such Debt Securities
--------
shall not have been previously so credited. Such Debt Securities
shall be received and credited for such purpose by the Trustee at
the Redemption Price specified in such Debt Securities for
redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced
accordingly.
Section 14.03. Redemption of Debt Securities for
---------------------------------
Sinking Fund.
------------
Not less than 60 days prior to each sinking fund
payment date for any series of Debt Securities (unless a shorter
period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash in the Currency
or Currencies in which the Debt Securities of such series are
denominated (except as provided pursuant to Section 3.01) and the
portion thereof, if any, which is to be satisfied by delivering
and crediting Debt Securities of such series pursuant to Section
14.02 and whether the Company intends to exercise its rights to
make a permitted optional sinking fund payment with respect to
such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment
or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure
of the Company to deliver such certificate, the sinking fund
payment due on the next succeeding sinking fund payment date for
such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Debt Securities
of such series subject to a mandatory sinking fund payment
without the right to deliver or credit Debt Securities as
provided in Section 14.02 and without the right to make any
optional sinking fund payment with respect to such series at such
time.
Any sinking fund payment or payments (mandatory or
optional) made in cash plus any unused balance of any preceding
sinking fund payments made with respect to the Debt Securities of
any particular series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent) on the
sinking fund payment date on which such payment is made (or, if
such payment is made before a sinking fund payment date, on the
sinking fund payment date immediately following the date of such
payment) to the redemption of Debt Securities of such series at
the Redemption Price specified in such Debt Securities with
respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the
Company is acting as its own Paying
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Agent) to the redemption of Debt Securities shall be added to the
next sinking fund payment received by the Trustee (or if the
Company is acting as its own Paying Agent, segregated and held in
trust as provided in Section 12.04) for such series and, together
with such payment (or such amount so segregated) shall be applied
in accordance with the provisions of this Section. Any and all
sinking fund moneys with respect to the Debt Securities of any
particular series held by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as
provided in Section 12.04) on the last sinking fund payment date
with respect to Debt Securities of such series and not held for
the payment or redemption of particular Debt Securities of such
series shall be applied by the Trustee (or by the Company if the
Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient
for the purpose, to the payment of the principal of the Debt
Securities of such series at Maturity.
The Trustee shall select or cause to be selected the
Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 13.03 and the Company
shall cause notice of the redemption thereof to be given in the
manner provided in Section 13.04. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon
the terms and in the manner stated in Section 13.06.
On or before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as
its own Paying Agent, the Company shall segregate and hold in
trust as provided in Section 12.04) in cash a sum, in the
Currency or Currencies in which Debt Securities of such series
are denominated (except as provided pursuant to Sections 3.01 or
3.10), equal to the principal and any interest accrued to the
Redemption Date for Debt Securities or portions thereof to be
redeemed on such sinking fund payment date pursuant to this
Section.
Neither the Trustee nor the Company shall redeem any
Debt Securities of a series with sinking fund moneys or mail any
notice of redemption of Debt Securities of such series by
operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any
Debt Securities of such series or of any Event of Default (other
than an Event of Default occurring as a consequence of this
paragraph) with respect to the Debt Securities of such series,
except that if the notice of redemption shall have been provided
in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent)
shall redeem such Debt Securities if cash sufficient for that
purpose shall be deposited with the Trustee (or segregated by the
Company) for that purpose in accordance with the terms of this
Article. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default
shall occur and any moneys thereafter paid into such sinking fund
shall, during the continuance of such default or Event of
Default, be held as security for the payment of the Debt
Securities and Coupons, if any, of such series; provided,
--------
however, that in case such default or Event of Default shall have
-------
been cured or waived as provided herein, such moneys shall
thereafter be applied on or prior to the next sinking fund
payment date for the Debt Securities of such series on which such
moneys may be applied pursuant to the provisions of this Section.
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ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. Applicability of Article.
------------------------
If, pursuant to Section 3.01, provision is made for the
defeasance of Debt Securities of a series, and if the Debt
Securities of such series are Registered Securities and
denominated and payable only in Dollars (except as provided
pursuant to Section 3.01) then the provisions of this Article
shall be applicable except as otherwise specified pursuant to
Section 3.01 for Debt Securities of such series. Defeasance
provisions, if any, for Debt Securities denominated in a Foreign
Currency or Currencies or for Bearer Securities may be specified
pursuant to Section 3.01.
Section 15.02. Defeasance Upon Deposit of Moneys or
------------------------------------
U.S. Government Obligations.
---------------------------
At the Company's option, either (a) the Company shall
be deemed to have been Discharged (as defined below) from its
obligations with respect to Debt Securities of any series ("legal
defeasance option") or (b) the Company shall cease to be under
any obligation to comply with any term, provision or condition
set forth in Section 10.01 with respect to Debt Securities of any
series (and, if so specified pursuant to Section 3.01, any other
obligation of the Company or restrictive covenant added for the
benefit of such series pursuant to Section 3.01) ("covenant
defeasance option") at any time after the applicable conditions
set forth below have been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Debt Securities
of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) which through the
payment of interest and principal 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 (iii) a combination of (i) and (ii), sufficient, in the
opinion (with respect to (i) and (ii)) of a nationally
recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal
(including any mandatory sinking fund payments) of and
premium, if any, and interest on, the Outstanding Debt
Securities of such series on the dates such installments of
interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with
respect to the Debt Securities of that series to have a
conflicting interest as defined in Section 6.08 and for
purposes of the Trust Indenture Act with respect to the Debt
Securities of any series;
(3) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is
a party or by which it is bound;
(4) if the Debt Securities of such series are then
listed on any national securities exchange, the Company
shall have delivered to the Trustee an Opinion of Counsel or
a letter or other document from such exchange to the effect
that the Company's exercise of its option under this Section
would not cause such Debt Securities to be delisted;
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(5) no Event of Default or event (including such
deposit) which, with notice or lapse of time or both, would
become an Event of Default with respect to the Debt
Securities of such series shall have occurred and be
continuing on the date of such deposit and, with respect to
the legal defeasance option only, no Event of Default under
Section 5.01(7) or Section 5.01(8) or event which with the
giving of notice or lapse of time, or both, would become an
Event of Default under Section 5.01(7) or Section 5.01(8)
shall have occurred and be continuing on the 91st day after
such date; and
(6) the Company shall have delivered to the Trustee an
Opinion of Counsel or a ruling from the Internal Revenue
Service to the effect that the Holders of the Debt
Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such
deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its
covenant defeasance option and an Event of Default under Section
5.01(7) or Section 5.01(8) or event which with the giving of
notice or lapse of time, or both, would become an Event of
Default under Section 5.01(7) or Section 5.01(8) shall have
occurred and be continuing on the 91st day after the date of such
deposit, the obligations of the Company referred to under the
definition of covenant defeasance option with respect to such
Debt Securities shall be reinstated. Money and securities held
in trust pursuant to a legal defeasance shall not be subject to
Article Sixteen.
"Discharged" means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by,
and obligations under, the Debt Securities of such series and to
have satisfied all the obligations under this Indenture relating
to the Debt Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments
acknowledging the same), except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund
described in clause (1) above, payment of the principal of (and
premium, if any) and interest on such Debt Securities when such
payments are due, (B) the Company's obligations with respect to
the Debt Securities of such series under Sections 3.04, 3.05,
3.06, 12.03 and 15.03 and (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that 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 under clauses (i) or
(ii), are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a
bank or trust company 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.
Section 15.03. Deposited Moneys and U.S. Government
------------------------------------
Obligations to Be Held in Trust.
-------------------------------
All moneys and U.S. Government Obligations deposited
with the Trustee pursuant to Section 15.02 in respect of Debt
Securities of a series shall be held in trust and applied by it,
in
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accordance with the provisions of such Debt Securities and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Debt
Securities, of all sums due and to become due thereon for
principal (and premium, if any) and interest, if any, but such
money need not be segregated from other funds except to the
extent required by law.
Section 15.04. Repayment to Company.
--------------------
The Trustee and any Paying Agent shall promptly
pay or return to the Company upon Company Request any moneys or
U.S. Government Obligations held by them at any time that are not
required for the payment of the principal of (and premium, if
any) and interest on the Debt Securities of any series for which
money or U.S. Government Obligations have been deposited pursuant
to Section 15.02.
The provisions of the last paragraph of Section 12.04
shall apply to any money held by the Trustee or any Paying Agent
under this Article that remains unclaimed for two years after the
Maturity of any series of Debt Securities for which money or
U.S. Government Obligations have been deposited pursuant
to Section 15.02.
ARTICLE SIXTEEN
SUBORDINATION
Section 16.01. Agreement to Subordinate.
------------------------
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of Debt Securities by his
acceptance thereof, likewise covenants and agrees, that the
payment of the principal of (and premium, if any) and interest on
each and all of the Debt Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 16.02. Distribution on Dissolution,
----------------------------
Liquidation and Reorganization; Subrogation of Debt Securities.
--------------------------------------------------------------
Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the
Company, whether in bankruptcy, insolvency, reorganization or
receivership proceedings or upon an assignment for the benefit of
creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of
competent jurisdiction to make other equitable provision
reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Debt
Securities and the Holders thereof by a plan of reorganization
under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be
entitled to receive payment in full of the principal thereof
(and premium, if any) and interest due thereon before the
Holders of the Debt Securities are entitled to receive any
payment upon the principal (and premium, if any) or interest
on indebtedness evidenced by the Debt Securities; and
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(b) any payment or distribution of the Company of any
kind or character, whether in cash, property or securities,
to which the Holders of the Debt Securities or the Trustee
would be entitled except for the provisions of this Article
Sixteen 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 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; and
(c) in the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities,
shall be received by the Trustee or the Holders of the Debt
Securities before all Senior Indebtedness is paid in full,
such payment or distribution shall be paid over, upon
written notice to the Trustee, to the holder of such Senior
Indebtedness or their representative or representatives or
to the trustee or trustees under any indenture under which
instrument evidencing any of such Senior Indebtedness may
have been issued, ratably as aforesaid, for application to
payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in full,
after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior
Indebtedness, the Holders of the Debt Securities shall be
subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities
of the Company applicable to Senior Indebtedness until the
principal of (and premium, if any) and interest on the Debt
Securities shall be paid in full and no such payments or
distributions to the Holders of the Debt Securities of cash,
property, or securities otherwise distributable to the holders of
Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of
the Debt Securities be deemed to be a payment by the Company to
or on account of the Debt Securities. It is understood that the
provisions of this Article Sixteen are and are intended solely
for the purpose of defining the relative rights of the Holders of
the Debt Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand. Nothing contained in
this Article Sixteen or elsewhere in this Indenture or in the
Debt Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Debt Securities, the
obligation of the Company, which is unconditional and absolute,
to pay to the Holders of the Debt Securities the principal of
(and premium, if any) and interest on the Debt Securities as and
when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the Holders of
the Debt Securities and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein or in
the Debt Securities prevent the Trustee or the Holder of any Debt
Security 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 in respect of cash, property or securities of
the Company received upon the exercise of any such remedy. Upon
any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee, subject to the provisions
of Section 6.02, shall be entitled to rely upon a certificate of
the liquidating trustee or agent or other person making any
distribution to the Trustee for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders
of Senior Indebtedness and other indebtedness of the Company, the
amount
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thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent to this Article
Sixteen.
The Trustee, however, shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness. The
Trustee shall not be liable to any such holder if it shall pay or
distribute to or on behalf of Holders of Debt Securities or the
Company moneys or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Sixteen.
If the Trustee or any Holder of Debt Securities does not
file a proper claim or proof of debt in the form required in any
proceeding referred to above prior to 30 days before the
expiration of the time to file such claim in such proceeding,
then the holder of any Senior Indebtedness is hereby authorized,
and has the right, to file an appropriate claim or claims for or
on behalf of such Holder of Debt Securities.
Section 16.03. No Payment on Debt Securities in Event
--------------------------------------
of Default on Senior Indebtedness.
---------------------------------
No payment by the Company on account of principal (or
premium, if any), sinking funds or interest on the Debt
Securities shall be made unless full payment of amounts then due
for principal, premium, if any, sinking funds, and interest on
Senior Indebtedness has been made or duly provided for.
Section 16.04. Payments on Debt Securities Permitted.
-------------------------------------
Nothing contained in this Indenture or in any of the
Debt Securities shall (a) affect the obligation of the Company to
make, or prevent the Company from making, at any time except as
provided in Sections 16.02 and 16.03, payments of principal (and
premium, if any) or interest of the Debt Securities or (b)
prevent the application by the Trustee of any moneys deposited
with it hereunder to the payment of or on account of the
principal of (and premium, if any) or interest on the Debt
Securities, unless the Trustee shall have received at its
Corporate Trust Office written notice of any event prohibiting
the making of such payment more than two Business Days prior to
the date fixed for such payment.
Section 16.05. Authorization of Holders to Trustee to
--------------------------------------
Effect Subordination.
--------------------
Each Holder of Debt Securities by his acceptance
thereof authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the
subordinate as provided in this Article Sixteen and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 16.06. Notices 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 Debt
Securities. Failure to give such notice shall not affect the
subordination of the Debt Securities to Senior Indebtedness.
Notwithstanding the provisions of this Article or any other
provisions of this Indenture, neither the Trustee nor any Paying
Agent (other than the Company) shall be charged with knowledge of
the existence of any Senior Indebtedness or of any event which
would prohibit the making of any payment of moneys to or by the
Trustee or such Paying Agent, unless and until the Trustee of
such Paying Agent shall have received (in the case of the
Trustee, at its Corporate Trust Office) written notice thereof
from the Company or from the holder of any Senior Indebtedness or
from the trustee for any such holder,
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together with proof satisfactory to the Trustee of such holding
of Senior Indebtedness or of the authority of such trustee;
provided, however, that if at least two Business Days prior to
the date upon which by the terms hereof any such moneys may
become payable for any purpose (including, without limitation,
the payment of either the principal (and premium, if any) or
interest on any Debt Security) the Trustee shall not have
received with respect to such moneys the notice provided for in
this Section 16.06, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and
authority to receive such moneys and to apply the same to the
purpose for which they were received, and shall not be affected
by any notice to the contrary, which may be received by it within
two Business Days prior to such date. 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 on behalf of such holder) to establish
that such a notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Sixteen, the Trustee may
request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this
Article Sixteen and, if such evidence is not furnished, the
Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such
payment.
Section 16.07. Trustee as Holder of Senior
---------------------------
Indebtedness.
------------
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Sixteen in
respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims, of, or
payments to, the Trustee under or pursuant to Section 6.07.
Section 16.08. Modification of Terms of Senior
-------------------------------
Indebtedness.
------------
Any renewal or extension of the time of payment of any
Senior Indebtedness or the exercise by the holders of Senior
Indebtedness of any of their rights under any instrument creating
or evidencing Senior Indebtedness, including, without limitation,
the waiver of default thereunder, may be made or done all
without notice to or assent from the Holders of the Debt
Securities or the Trustee.
No compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or
other action in respect of, any liability or obligation under or
in respect of, or of any of the terms, covenants or conditions of
any indenture or other instrument under which any Senior
Indebtedness is outstanding or of such Senior Indebtedness,
whether or not such release is in accordance with the provisions
of any applicable document, shall in any way alter or affect any
of the provisions of this Article Sixteen or of the Debt
Securities relating to the subordination thereof.
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Section 16.09. Reliance on Judicial Order or
-----------------------------
Certificate of Liquidation Agent.
--------------------------------
Upon any payment or distribution of assets of the
Company referred to in this Article Sixteen, the Trustee and the
Holders of the Debt Securities shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction
in which each 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 Debt Securities, 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 therein, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Sixteen.
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of Debt Securities by his
acceptance thereof, likewise covenants and agrees, that the
payment of the principal of (and premium, if any) and interest on
each and all of the Debt Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all
Senior Indebtedness.
ARTICLE SEVENTEEN
CONVERSION
Section 17.01. Applicability; Conversion Privilege.
-----------------------------------
Except as otherwise specified pursuant to Section 3.01
for Debt Securities of any series, the provisions of this Article
Sixteen shall be applicable to any Debt Securities that are
convertible into Common Stock. If so provided pursuant to
Section 3.01 with respect to the Debt Securities of any series,
the Holder of a Debt Security of such series shall have the
right, at such Holder's option, to convert, in accordance with
the terms of such series of Debt Securities and this Article
Sixteen, all or any part (in a denomination of, unless otherwise
specified pursuant to Section 3.01 with respect to Securities of
such series, $1,000 in principal amount or any integral multiple
thereof) of such Debt Security into shares of Common Stock or, as
to any Debt Securities called for redemption, at any time prior
to the time and date fixed for such redemption (unless the
Company shall default in the payment of the Redemption Price, in
which case such right shall not terminate at such time and date).
Section 17.02. Conversion Procedure; Conversion Price;
---------------------------------------
Fractional Shares.
-----------------
(a) Each Debt Security to which this Article is
applicable shall be convertible at the office of the Conversion
Agent, and at such other place or places, if any, specified in
pursuant to Section 3.01 with respect to the Debt Securities of
such series, into fully paid and nonassessable shares (calculated
to the nearest 1/100th of a share) of Common Stock. The Debt
Securities will be converted into shares of Common Stock at the
Conversion Price therefor. No payment or adjustment shall be
made in respect of dividends on the Common Stock or accrued
interest on a converted Debt Security except as described in
Section 16.09. The Company may, but shall not be required, in
connection with any conversion of Debt Securities, to issue a
fraction of a share of Common Stock and, if the Company shall
determine not to issue any such fraction, the Company shall,
subject to Section 16.03(4), make a cash
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payment (calculated to the nearest cent) equal to such fraction
multiplied by the Closing Price of the Common Stock on the last
Trading Day prior to the date of conversion.
(b) Before any Holder of a Debt Security shall be
entitled to convert the same into Common Stock, such Holder shall
surrender such Debt Security duly endorsed to the Company or in
blank, or, in the case of Bearer Securities, together with all
unmatured Coupons and any matured Coupons in default attached
thereto, at the office of the Conversion Agent or at such other
place or places, if any, specified pursuant to Section 3.01 (in
the case of Registered Securities) and at an office of the
Conversion Agent or at such other place or places, if any,
outside of the United States as is specified pursuant to
Section 3.01 (in the case of Bearer Securities), and shall give
written notice to the Company at said office or place that he
elects to convert the same and shall state in writing therein the
principal amount of Debt Securities to be converted and the name
or names (with addresses) in which he wishes the certificate or
certificates for Common Stock to be issued; provided, however,
that no Debt Security or portion thereof shall be accepted for
conversion unless the principal amount of such Debt Security or
such portion, when added to the principal amount of all other
Debt Securities or portions thereof then being surrendered by the
Holder thereof for conversion, exceeds the then effective
Conversion Price with respect thereto. 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 conversion
may be effected if the Bearer Securities to be surrendered for
conversion are accompanied by payment in funds acceptable to the
Company 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 is
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
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 12.03, 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. If more than one Debt Security shall be
surrendered for conversion at one time by the same Holder, the
number of full shares of Common Stock which shall be deliverable
upon conversion shall be computed on the basis of the aggregate
principal amount of the Debt Securities (or specified portions
thereof to the extent permitted thereby) so surrendered. Subject
to the next succeeding sentence, the Company will, as soon as
practicable thereafter, issue and deliver at said office or place
to such Holder of a Debt Security, or to his nominee or nominees,
certificates for the number of full shares of Common Stock to
which he shall be entitled as aforesaid, together, subject to the
last sentence of paragraph (a) above, with cash in lieu of any
fraction of a share to which he would otherwise be entitled. The
Company shall not be required to deliver certificates for shares
of Common Stock while the stock transfer books for such stock or
the Security Register are duly closed for any purpose, but
certificates for shares of Common Stock shall be issued and
delivered as soon as practicable after the opening of such books
or Security Register. A Debt Security shall be deemed to have
been converted as of the close of business on the date of the
surrender of such Debt Security for conversion as provided above,
and the Person or Persons entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes
as the record Holder or Holders of such Common Stock as of the
close of business on such date. In case any Debt Security shall
be surrendered for partial conversion, the Company shall execute
and the Trustee shall authenticate and deliver to or upon the
written order of the Holder of the Debt Securities so
surrendered, without charge to such Holder (subject to the
provisions of Section 16.08), a new Debt Security or Securities
in authorized denominations in an aggregate principal amount
equal to the unconverted portion of the surrendered Debt
Security.
90
<PAGE>
Section 17.03. Adjustment of Conversion Price for
----------------------------------
Common Stock.
------------
The Conversion Price with respect to any Debt Security
which is convertible into Common Stock shall be adjusted from
time to time as follows:
(1) In case the Company shall, at any time or from
time to time while any of such Debt Securities are
outstanding, (i) pay a dividend in shares of its Common
Stock to holders of Common Stock, (ii) combine its
outstanding shares of Common Stock into a smaller number of
shares of Common Stock, (iii) subdivide its outstanding
shares of Common Stock into a greater number of shares of
Common Stock or (iv) make a distribution in shares of Common
Stock to holders of Common Stock, then the Conversion Price
in effect immediately before such action shall be adjusted
so that the Holders of such Debt Securities, upon conversion
thereof into Common Stock immediately following such event,
shall be entitled to receive the kind and amount of shares
of capital stock of the Company which they would have owned
or been entitled to receive upon or by reason of such event
if such Debt Securities had been converted immediately
before the record dated (or, if no record date, the
effective date) for such event. An adjustment made pursuant
to this Section 16.03(1) shall become effective
retroactively immediately after the record date in the case
of a dividend or distribution and shall become effective
retroactively immediately after the effective date in the
case of a subdivision or combination. For the purposes of
this Section 16.03(1), each Holder of Debt Securities shall
be deemed to have failed to exercise any right to elect the
kind or amount of securities receivable upon the payment of
any such dividend, subdivision, combination or distribution
(provided that if the kind or amount of securities
receivable upon such dividend, subdivision, combination or
distribution is not the same for each nonelecting share,
then the kind and amount of securities or other property
receivable upon such dividend, subdivision, combination or
distribution for each nonelecting share shall be deemed to
be the kind and amount so receivable per share by a
plurality of the nonelecting shares).
(2) In case the Company shall, at any time or from
time to time while any of such Debt Securities are
outstanding, issue rights or warrants to all holders of
shares of its Common Stock entitling them (for a period
expiring within 45 days after the record date for such
issuance) to subscribe for or purchase shares of Common
Stock (or securities convertible into shares of Common
Stock) at a price per share less than the Current Market
Price of the Common Stock at such record date (treating the
price per share of the securities convertible into Common
Stock as equal to (x) the sum of (i) the price for a unit of
the security convertible into Common Stock and (ii) any
additional consideration initially payable upon the
conversion of such security into Common Stock divided by (y)
the number of shares of Common Stock initially underlying
such convertible security), the Conversion Price with
respect to such Debt Securities shall be adjusted so that it
shall equal the price determined by dividing the Conversion
Price in effect immediately prior to the date of issuance of
such rights or warrants by a fraction, the numerator of
which shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common
Stock offered for subscription or purchase (or into which
the convertible securities so offered are initially
convertible), and the denominator of which shall be the
number of shares of Common Stock outstanding on the date of
issuance of securities which the aggregate offering price of
the total number of shares of securities so offered for
subscription or purchase (or the aggregate purchase price of
the convertible securities so offered plus the aggregate
amount of any additional consideration initially payable
upon conversion of such securities into Common Stock) would
purchase at such Current
91
<PAGE>
Market Price of the Common Stock. Such adjustment shall
become effective retroactively immediately after the record
date for the determination of stockholders entitled to
receive such rights or warrants.
(3) In the case the Company shall, at any time or from
time to time while any of such Debt Securities are
outstanding, distribute to all holders of shares of its
Common Stock (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing corporation and the Common Stock
is not changed or exchanged) cash, evidences of its
indebtedness, securities or assets (excluding (i) regular
periodic cash dividends in amounts, if any, determined from
time to time by the Board of Directors, (ii) dividends
payable in shares of Common Stock for which adjustment is
made under Section 16.03(1) or (iii) rights or warrants to
subscribe for or purchase securities of the Company
(excluding those referred to in Section 16.03(2))), then in
each such case the Conversion Price with respect to such
Debt Securities determined by dividing the Conversion Price
in effect immediately prior to the date of such distribution
by a fraction, the numerator of which shall be the Current
Market Price of the Common Stock on the record date referred
to below, and the denominator of which shall be such Current
Market Price of the Common Stock less the then fair market
value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the
portion of the cash or assets or evidences of indebtedness
or securities so distributed or of such subscription rights
or warrants applicable to one share of Common Stock
(provided that such denominator shall never be less than
1.0); provided however, that no adjustment shall be made
with respect to any distribution of rights to purchase
securities of the Company if a Holder of Debt Securities
would otherwise be entitled to receive such rights upon
conversion at any time of such Debt Securities into Common
Stock unless such rights are subsequently redeemed by the
Company, in which case such redemption shall be treated for
purposes of this section as a dividend on the Common Stock.
Such adjustment shall become effective retroactively
immediately after the record date for the determination of
stockholders entitled to receive such distribution; and in
the event that such distribution is not so made, the
Conversion Price shall again be adjusted to the Conversion
Price which would then be in effect if such record date had
not been fixed.
(4) The Company shall be entitled to make such
additional adjustments in the Conversion Price, in addition
to those required by subsections 16.03(1), 16.03(2), and
16.03(03), as shall be necessary in order that any dividend
or distribution of Common Stock, any subdivision,
reclassification or combination of shares of Common Stock or
any issuance of rights or warrants referred to above shall
not be taxable to the holders of Common Stock for United
States Federal income tax purposes.
(5) In any case in which this Section 16.03 shall
require that any adjustment be made effective as of or
retroactively immediately following a record date, the
Company may elect to defer (but only for five (5) Trading
Days following the filing of the statement referred to in
Section 16.05) issuing to the Holder of any Debt Securities
converted after such record date the shares of Common Stock
and other capital stock of the Company issuable upon such
conversion over and above the shares of Common Stock and
other capital stock of the Company issuable upon such
conversion on the basis of the Conversion Price prior to
adjustment; provided, however, that the Company shall
deliver to such Holder a due bill or other appropriate
instrument evidencing such Holder's right to receive such
additional shares upon the occurrence of the event requiring
such adjustment.
92
<PAGE>
(6) All calculations under this Section 16.03 shall be
made to the nearest cent or one-hundredth of a share of
security, with one-half cent and 0.005 of a share,
respectively, being rounded upward. Notwithstanding any
other provision of this Section 16.03, the Company shall not
be required to make any adjustment of the Conversion Price
unless such adjustment would require an increase or decrease
of at least 1% of such price. Any lessor adjustment shall
be carried forward and shall be made at the time of and
together with the next subsequent adjustment which, together
with any adjustment or adjustments so carried forward, shall
amount to an increase or decrease of at least 1% in such
price. Any adjustments under this Section 16.03 shall be
made successively whenever an event requiring such an
adjustment occurs.
(7) In the event that at any time, as a result of an
adjustment made pursuant to this Section 16.03, the Holder
of any Debt Security thereafter surrendered for conversion
shall become entitled to receive any shares of stock of the
Company other than shares of Common Stock into which the
Debt Securities originally were convertible, the Conversion
Price of such other shares so receivable upon conversion of
any such Debt Security shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to Common
Stock contained in subparagraphs (1) through (6) of this
Section 16.03, and the provisions of Sections 16.01, 16.02
and 16.04 through 16.09 with respect to the Common Stock
shall apply on like or similar terms to any such other
shares and the determination of the Board of Directors as to
any such adjustment shall be conclusive.
(8) No adjustment shall be made pursuant to this
Section: (i) if the effect thereof would be to reduce the
Conversion Price below the par value (if any) of the Common
Stock or (ii) subject to 16.03(5) hereof, with respect to
any Debt Security that is converted prior to the time such
adjustment otherwise would be made.
Section 17.04 Consolidation or Merger of the Company.
--------------------------------------
In case of either (a) any consolidation or merger to
which the Company is a party, other than a merger or
consolidation in which the Company is the surviving or continuing
corporation and which does not result in a reclassification of,
or change (other than a change in par value or from par value to
no par value or from no par value to par value, as a result of a
subdivision or combination) in, outstanding shares of Common
Stock or (b) any sale or conveyance of all or substantially all
of the property and assets of the Company to another Person, then
each Debt Security then outstanding shall be convertible from and
after such merger, consolidation, sale or conveyance of property
and assets into the kind and amount of shares of stock or other
securities and property (including cash) receivable upon such
consolidation, merger, sale or conveyance by a holder of the
number of shares of Common Stock into which such Debt Securities
would have been converted immediately prior to such
consolidation, merger, sale or conveyance, subject to adjustments
which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article Sixteen (and assuming
such holder of Common Stock failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash or
other property (including cash) receivable upon such
consolidation, merger, sale or conveyance (provided that, if the
kind or amount of securities, cash or other property (including
cash) receivable upon such consolidation, merger, sale or
conveyance is not the same for each nonelecting share, then the
kind and amount of securities, cash or other property (including
cash) receivable upon such consolidation, merger, sale or
conveyance for each nonelecting share shall be deemed to be the
kind and amount so receivable per share by a plurality of the
nonelecting shares or securities)). The Company shall not enter
into any of the transactions referred to in clause (a) or (b) of
the preceding sentence unless effective provision shall
93
<PAGE>
be made so as to give effect to the provisions set forth in this
Section 16.04. The provisions of this Section 16.04 shall apply
similarly to successive consolidations, mergers, sales or
conveyances.
Section 17.05. Notice of Adjustment.
--------------------
Whenever an adjustment in the Conversion Price with
respect to a series of Debt Securities is required:
(1) the Company shall forthwith place on file with the
Trustee and any Conversion Agent for such Securities a
certificate of the Treasurer of the Company, stating the
adjusted Conversion Price determined as provided herein and
setting forth in reasonable detail such facts as shall be
necessary to show the reason for and the manner of computing
such adjustment, such certificate to be conclusive evidence
that the adjustment is correct; and
(2) a notice stating that the Conversion Price has
been adjusted and setting forth the adjusted Conversion
Price shall forthwith be given by the Company, or at the
Company's request, by the Trustee in the name and at the
expense of the Company, in the manner provided in Section
1.05. Any notice so given shall be conclusively presumed to
have been duly given, whether or not the Holder receives
such notice.
Section 17.06. Notice in Certain Events.
------------------------
In case:
-------
(1) of a 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 conveyance to another
Person or entity or group of Persons or entities acting in
concert as a partnership, limited partnership, syndicate or
other group (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) of all or
substantially all of the property and assets of the Company;
or
(2) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(3) of any action triggering an adjustment of the
Conversion Price pursuant to this Article Sixteen;
then, in each case, the Company shall cause to be filed with the
Trustee and the Conversion Agent for the applicable Debt
Securities, and shall cause to be given, to the Holders of record
of applicable Debt Securities in the manner provided in Section
1.05, at least fifteen (15) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of any distribution or
grant of rights or warrants triggering an adjustment to the
Conversion Price pursuant to this Article Sixteen, or, if a
record is not to be taken, the date as of which the holders of
record or Common Stock entitled to such distribution, rights or
warrants are to be determined, or (y) the date on which any
reclassification, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding up triggering an adjustment
to the Conversion Price pursuant to this Article Sixteen 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 Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding up.
94
<PAGE>
Failure to give such notice or any defect therein shall
not affect the legality or validity of the proceedings described
in clause (1), (2), or (3) of this Section.
Section 17.07. Company to Reserve Stock; Registration;
---------------------------------------
Listing.
-------
(a) The Company shall at all times reserve and keep
available, free from preemptive rights, out of its authorized but
unissued shares of Common Stock, for the purpose of effecting the
conversion of the Debt Securities, such number of its duly
authorized shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all applicable
outstanding Debt Securities into such Common Stock at any time
(assuming that, at the time of the computation of such number of
shares or securities, all such Debt Securities would be held by
a single holder); provided, however, that nothing contained
-------- -------
herein shall preclude the Company from satisfying its obligations
in respect of the conversion of the Debt Securities by delivery
of purchased shares of Common Stock which are held in the
treasury of the Company. The Company shall from time to time, in
accordance with the laws of the State of Delaware, use its best
efforts to cause the authorized amount of the Common Stock to be
increased if the aggregate of the authorized amount of the Common
Stock remaining unissued and the issued shares of such Common
Stock in its treasury (other than any such shares reserved for
issuance in any other connection) shall not be sufficient to
permit the conversion of all Debt Securities.
(b) If any shares of Common Stock which would be
issuable upon conversion of Debt Securities hereunder require
registration with or approval of any governmental authority
before such shares or securities may be issued upon such
conversion, the Company will in good faith and as expeditiously
as possible endeavor to cause such shares or securities to be
duly registered or approved, as the case may be. The Company
will endeavor to list the shares of Common Stock required to be
delivered upon conversion of the Debt Securities prior to such
delivery upon the principal national securities exchange upon
which the outstanding Common Stock is listed at the time of such
delivery.
Section 17.08. Taxes on Conversion.
-------------------
The Company shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of
the issue or delivery of shares of Common Stock on conversion of
Debt Securities pursuant hereto. The Company shall not, however,
be required to pay any such tax which may be payable in respect
of any transfer involved in the issue or delivery of shares of
Common Stock or the portion, if any, of the Debt Securities which
are not so converted in a name other than that in which the Debt
Securities so converted were registered (in case of Registered
Securities), 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 such tax or has established to the
satisfaction of the Company that such tax has been paid.
Section 17.09 Conversion After Record Date.
----------------------------
If any Debt Securities are surrendered for conversion
subsequent to the record date preceding an Interest Payment Date
but on or prior to such Interest Payment Date (except Debt
Securities called for redemption on a Redemption Date between
such record date and Interest Payment Date), the Holder of such
Debt Securities at the close of business on such record date
shall be entitled to receive the interest payable on such Debt
Securities on such Interest Payment Date notwithstanding the
conversion thereof. Debt Securities surrendered for conversion
during the period from the close of business on any record date
next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date to the opening of business
on such Interest Payment Date shall (except in the case of Debt
Securities which have been called for redemption on a Redemption
Date within such period) be accompanied by
95
<PAGE>
payment in New York Clearing House funds or other funds and in
the Currency acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the Debt
Securities being surrendered for conversion. Except as provided
in this Section 16.09, no adjustments in respect of payments of
interest on Debt Securities surrendered for conversion or any
dividends or distributions of interest on the Common Stock issued
upon conversion shall be made upon the conversion of any Debt
Securities.
Section 17.10. Company Determination Final.
---------------------------
Any determination that the Company or the Board of
Directors must make pursuant to this Article is conclusive.
Section 17.11 Trustee's Disclaimer.
--------------------
The Trustee has no duty to determine when an adjustment
under this Article should be made, how it should be made or what
it should be. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon
conversion of Debt Securities. The Trustee shall not be
responsible for the Company's failure to comply with this
Article. Each Conversion Agent other than the Company shall have
the same protection under this Section as the Trustee.
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.
BRUNO'S INC.
By:________________________
Title:_____________________
Attest:
________________________
Title:
Seal
-----------------------------
-----------------------------
as Trustee
By:________________________
Title:
Attest:
________________________
Title:
Seal
97
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
On the day of , 19__, before me personally came
, to me known, who, being by me duly sworn, did depose
and say that he resides at ________________________________; that
he is _____________________________ of Bruno's, Inc., one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________
Notary Public
SEAL
98
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
On the day of , 19__, before me personally came
, to me known, who, being by me duly sworn,
----------------------
did depose and say that he resides at
----------------------------
; that he is
------------------------------------------ -----------
of , one of the
--- -----------------------------------------
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________
Notary Public
SEAL
99
<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN 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 principal amount of the
above captioned Debt Securities held by you for our account (i)
is owned by person(s) that are not United States person(s) (as
defined below), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (as
defined in Section 1.165-12(c)(1)(v) of the United States
Treasury regulations) ("financial institutions") purchasing for
their own account or for resale, or (b) United States person(s)
who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt
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 the Company or the
Company's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the Treasury regulations
thereunder), or (iii) is owned by United States or foreign
financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7)
of the United States Treasury regulations), and in addition if
the owner of the Debt Securities 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 Debt
Securities for the purpose of resale directly or indirectly to a
United States person or to a person within the United States or
its possessions.
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 beneficial interest in the
temporary global Security 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
________ principal amount of Debt Securities held by you for our
account as to which we are not able to provide a certificate in
this form. We understand that exchange of such portion of the
temporary global Note for definitive Bearer Securities or
interests in a permanent global Note cannot be made until we are
able to provide a certificate in this form.
We understand that this certificate is required in
connection with certain tax laws and regulations of 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.
<PAGE>
"United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States
and any estate or trust the income of which is subject to United
States federal income taxation regardless of its source. "United
States" means the United States of America (including the States
and the District of Columbia) and its "possessions" which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
Dated:________________________, 19__
[To be dated no earlier than the
10th day before the Exchange Date]
By:________________________
As, or as agent for, the
beneficial owner(s) of
the portion of the
temporary global Note
to which this
certificate relates.
2
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
________________________
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on
certifications we have received in writing, by tested telex or by
electronic transmission from member organizations appearing in
our records as persons being entitled to a portion of the
principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture as of the
date hereof, _________ principal amount of the above-captioned
Debt Securities (i) is owned by person(s) that are not United
States person(s) (as defined below), (ii) is owned by United
States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v)
of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Debt Securities
through foreign branches of United States financial institutions
and who hold the Debt Securities through such United States
financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution has agreed,
on its own behalf or through its agent, that we may advise the
Company or the Company's agent that it 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 Treasury regulations
thereunder), or (iii) is owned by United States or foreign
financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7)
of the United States Treasury regulations), and in addition
United States or foreign 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 Debt
Securities for the purpose of resale directly or indirectly to a
United States person or to a person within the United States or
its possessions.
We further certify (i) that we are not making available
for exchange or collection of any interest any portion of the
temporary Global Note excepted in such certifications and (ii)
that 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 collection
of any interest are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certificate is required in
connection with certain tax laws and regulations of 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.
"United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States
and any estate or trust the income of which is subject to United
States federal income taxation regardless of its source. "United
States" means the United States of America (including the States
and the District of
<PAGE>
Columbia) and its "possessions" which include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
Dated:________________________, 19__
[To be dated no earlier than the
Exchange Date]
By:________________________
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the Euro-Clear
System] [CEDEL, S.A.]
2
EXHIBIT 5.1
S I R O T E
&
P E R M U T T
[Letterhead]
July 18, 1995
Bruno's, Inc.
800 Lakeshore Parkway
Birmingham, AL 35211
Dear Sirs:
We have acted as counsel to Bruno's, Inc., an Alabama
corporation (the "Corporation"), in connection with the
Corporation's Registration Statement on Form S-3 (File No. 33-
60161) (the "Registration Statement") filed by the Corporation
under the Securities Act of 1933, as amended, relating to (i)
debt securities, which may be either senior (the "Senior
Securities") or subordinated (the "Subordinated Securities")
(collectively, the "Debt Securities"), (ii) warrants to purchase
the Debt Securities (the "Debt Warrants"), (iii) shares of common
stock of the Corporation, par value $0.01 per share (the "Common
Stock"), (iv) warrants to purchase shares of Common Stock (the
"Common Stock Warrants"), (v) Debt Securities and Common Stock
which may be issued upon exercise of Securities Warrants (as
defined below) and (vi) such indeterminate amount of Offered
Securities (as defined below) as may be issued in exchange for or
upon conversion of, as the case may be, the Offered Securities,
with an aggregate initial public offering price of up to
$750,000,000 or the equivalent thereof in one or more foreign
currencies or composite currencies. The Corporation will not
receive separate consideration for any Offered Securities that
are issued in exchange for or upon conversion of, as the case may
be, Offered Securities, or upon exercise of Securities Warrants.
The Debt Warrants and Common Stock Warrants are hereinafter
referred to collectively as the "Securities Warrants," and the
Debt Securities, Common Stock and Securities Warrants are
hereinafter referred to collectively as the "Offered Securities."
The Offered Securities will be sold or delivered from time
<PAGE>
to time as set forth in the Registration Statement, any amendment
thereto, the prospectus contained therein (the "Prospectus") and
supplements to the Prospectus (the "Prospectus Supplements").
The Senior Debt Securities will be issued under an Indenture (the
"Senior Debt Indenture") between the Company and First Trust of
New York, as Trustee (the "Senior Debt Trustee"). The
Subordinated Debt Securities will be issued under an Indenture
(the "Subordinated Debt Indenture," together with the Senior Debt
Indenture, the "Indentures") between the Company and Marine
Midland Bank, as Trustee (the "Subordinated Debt Trustee;"
together with the Senior Debt Trustee, the "Trustees"). The
Indentures are included as exhibits to the Registration
Statement.
We have examined the Registration Statement and the form of
each of the Indentures and the Securities. We have also
examined, and have relied as to matters of fact upon, originals
or copies, certified or otherwise identified to our satisfaction,
of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of
public officials and of officers and representatives of the
Corporation, and have made such other and further investigations,
as we have deemed relevant and necessary as a basis for the
opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to the original documents of all documents submitted
to us as certified or photostatic copies, and the authenticity of
the originals of such latter documents. In addition, we have
assumed that (i) a Prospectus Supplement will have been prepared
and filed with the Commission describing the Offered Securities offered
thereby; (ii) all Offered Securities issued will be issued and sold in
compliance with applicable federal and state securities laws and
solely in the manner stated in the Registration Statement and the
appropriate Prospectus Supplement; (iii) a definitive purchase,
underwriting or similar agreement and, to the extent applicable, a debt
warrant agreement and a common stock warrant agreement, with respect to any
Offered Securities, will have been duly authorized and validly executed and
delivered by the Corporation and the other parties thereto; (iv)
the Common Stock, when issued, will be authorized and issued in
compliance with Section 234 of the Alabama Constitution, will be
authorized pursuant to the articles of incorporation of the
Corporation in accordance with Section 234 of the Alabama
Constitution and Section 10-2B-6.01 of the 1975 Code of Alabama
(the "Code"), and the issuance thereof and the consideration to
be received therefor, will have been authorized, determined and
approved by the Board of Directors of the Corporation pursuant to
Section 10-2B-6.21 of the Code; (v) the Debt Securities, when
issued, will be authorized and issued in compliance with Section
234 of the Alabama Constitution, will have been authorized and
approved by the Board of Directors of the Corporation; (vi) the
Securities Warrants, when issued, will be duly authorized by the
Board of Directors of the Corporation and, to the extent applicable,
will be issued in accordance with Section 10-2B-6.24 of the Code;
and (vii) any Debt Securities or Common Stock issuable upon
2
<PAGE>
conversion, exchange or exercise of any Securities Warrants being offered
will be duly authorized, created and, if appropriate, reserved for
issuance upon such conversion, exchange or exercise and will satisfy
all conditions set forth in clause (iv) and (v) of this paragraph.
Based on the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion that:
1. With respect to the Debt Securities, when (i) the
Indentures have been duly authorized and validly executed and
delivered by the Corporation to the Trustees, (ii) the Indentures
have been duly qualified under the Trust Indenture Act of 1939,
as amended, (iii) the Registration Statement has become effective
under the Securities Act of 1933, as amended (the "Act"), (iv)
the Board of Directors of the Company or, to the extent permitted
by Alabama law, a duly constituted and acting committee thereof
(such Board of Directors or committee being hereinafter referred
to as the "Board") has taken all necessary corporate action to
approve the issuance and terms of such Debt Securities, the terms
of the Offering thereof and related matters, and (v) the Debt
Securities have been duly executed and authenticated in accordance with
the terms of the Indentures and delivered and sold as contemplated by
the Registration Statement against receipt of adequate consideration
therefor, the Debt Securities will constitute valid and legally
binding obligations of the Corporation enforceable against the Corporation
in accordance with their terms.
2. The shares of Common Stock have been duly authorized
and (i) when the Registration Statement has become effective
under the Act and (ii) when the shares of Common Stock in the
form filed as an exhibit to the Registration Statement have been
duly executed, countersigned and delivered and sold by the
Corporation in the transactions contemplated by the Registration
Statement and the consideration therefor has been received by the
Corporation, such shares of Common Stock will be validly issued,
fully paid and nonassessable.
3. The Securities Warrants have been duly authorized and,
(i) when the Registration Statement has become effective under
the Act, (ii) upon the execution and delivery of a debt warrant
agreement or common stock warrant agreement, as the case may be,
relating to such Securities Warrants in the form to be filed as an
exhibit to the Registration Statement through the filing of a
Current Report on Form 8-K, and (iii) when such Securities Warrants
have been duly executed, countersigned, delivered and sold in the
applicable form to be filed as an exhibit to the Registration Statement
through the filing of a Current Report on Form 8-K and as contemplated
by the Registration Statement against receipt of adequate consideration
therefor, such Securities Warrants will constitute valid and legally
binding obligations of the Corporation enforceable against the
Corporation in accordance with their terms.
In rendering the opinions expressed herein, we have assumed
without investigation that, with respect to each offer, issuance,
sale, and delivery by the Corporation of Offered Securities and
3
<PAGE>
each purchase by the purchasers thereof, (a) at the time thereof
and at all times subsequent thereto, such offer, issuance, sale,
delivery, and purchase did not violate, result in a breach of, or
conflict with any law, rule, regulation, order, judgment, or
decree, in each case whether then or subsequently in effect; (b)
at the time thereof and at all times subsequent thereto, the
persons authorizing each such offer, issuance, sale, delivery or
purchase, did not violate any fiduciary or other duty owed by
them; (c) no event has taken place subsequent to any such offer,
issuance, sale, delivery or purchase, or will take place which
would cause any such offer, issuance, sale, delivery, or
purchase, not to comply with any law, rule, regulation,
order, judgement, decree, or duty, or which would permit the
Corporation or any other party at any time thereafter to
cancel, rescind, or otherwise avoid any such offer, issuance,
sale, delivery or purchase; (d) there was no misrepresentation,
omission, or deceit by the Corporation, or any such other party,
in connection with any such offer, issuance, sale, delivery or
purchase; (e) each offer, issuance, sale, delivery or purchase
is governed by the laws of the State of Alabama; (f) each other
party to such offer, issuance, sale, delivery or purchase,
(i) had the power, authority, and the capacity to consummate
such purchase, (ii) duly authorized such purchase, and each such
transaction, (iii) has duly and validly taken all necessary
corporate or other proceedings of the directors (or a committee
of directors), stockholders, and all other bodies to authorize the
purchase, and (iv) has not violated or breached any term of the
certificate of incorporation, bylaws or other governing documents
by any such purchase.
Our opinion set forth in paragraphs 1 and 3 above are
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith, fair
dealing, and conscionability; and we are not rendering any opinion
with respect to any provisions of the Debt Securities and Debt Warrants
dealing with (a) choice of law, (b) severability, (c) exculpation,
(d) indemnification and contribution, (e) arbitration, (f)
restriction of available remedies or attempts to establish a
remedy, and (g) release of unmatured claims.
In accordance with the general polices of this law firm in
rendering legal opinion, we have assumed for the purposes of the
opinions expressed herein that no fraud exists with respect to
any of the matters relevant to the opinions expressed herein,
although we have no reason to believe that there exists any fraud
which would render invalid the opinions expressed below.
We are members of the Bar of the State of Alabama, and
we do not express any opinion concerning any law other than the
law of the State of Alabama and the Federal law of the United
4
<PAGE>
States.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to
this firm appearing under the heading "Legal Opinions" in the
Registration Statement.
Very truly yours,
SIROTE & PERMUTT, P.C.
FOR THE FIRM
5
Exhibit 5.2
July 17, 1995
Bruno's, Inc.
800 Lakeshore Parkway
Birmingham, Alabama 35211
Dear Sirs:
We have acted as special counsel to Bruno's, Inc., an Alabama
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-3 (File No. 33-60161) (the "Registration Statement")
filed by the Company under the Securities Act of 1933, as amended,
relating, in part, to senior debt securities ("Senior Debt Securities") and
subordinated debt securities ("Subordinated Debt Securities"; together with
the Senior Debt Securities, the "Securities"). The Senior Debt Securities
will be issued under an Indenture (the "Senior Debt Indenture") between the
Company and First Trust of New York, as Trustee (the "Senior Debt
Trustee"). The Subordinated Debt Securities will be issued under an
Indenture (the "Subordinated Debt Indenture"; together with the Senior Debt
Indenture, the "Indentures") between the Company and Marine Midland Bank,
as Trustee (the "Subordinated Debt Trustee"; together with the Senior Debt
Trustee, the "Trustees").
We have examined the Registration Statement and the form of each
of the Indentures and the Securities. In addition, we have examined, and
have relied as to
<PAGE>
Bruno's Inc. 2
matters of fact upon, originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records, agreements,
documents and other instruments and such certificates or comparable
documents of public officials and of officers and representatives of the
Company, and have made such other and further investigations, as we have
deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, with respect to the Senior Debt Securities, when
(i) the Senior Debt Indenture has been duly authorized and validly executed
and delivered by the parties to the Senior Debt Indenture, (ii) the Senior
Debt Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended, (iii) the Board of Directors of the Company or, to the
extent permitted by Alabama law, a duly constituted and acting committee
thereof (such Board of Directors or committee being hereinafter referred to
as the "Board") has taken all necessary corporate action to approve the
issuance and terms of such Senior Debt Securities, the terms of the
offering thereof and related matters, and (iv) such Senior Debt Securities
have been duly executed, authenticated, issued and delivered in accordance
with the provisions of the Senior Debt Indenture and the applicable
definitive purchase, underwriting or similar agreement approved by the
Board upon payment of the
<PAGE>
Bruno's Inc. 3
consideration therefor provided for therein, we are of the opinion that the
Senior Debt Securities will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance
with their terms and entitled to the benefits of the Senior Debt Indenture,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
In addition, based upon the foregoing, and subject to the
qualifications and limitations stated herein, with respect to the
Subordinated Debt Securities, when (i) the Subordinated Debt Indenture has
been duly authorized and validly executed and delivered by the parties to
the Subordinated Debt Indenture, (ii) the Subordinated Debt Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended,
(iii) the Board has taken all necessary corporate action to approve the
issuance and terms of such Subordinated Debt Securities, the terms of the
offering thereof and related matters, and (iv) such Subordinated Debt
Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Subordinated Debt Indenture and the
applicable definitive purchase, underwriting or similar agreement approved
by the Board upon payment of the consideration therefor provided for
therein, we are of the opinion that the Subordinated Debt Securities will
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms and entitled to the
benefits of the Subordinated Debt Indenture, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other
<PAGE>
Bruno's Inc. 4
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the
State of New York or the federal law of the United States.
This opinion is rendered to you in connection with the above
described transactions. This opinion may not be relied upon by you for any
other purpose, except that Sirote & Permutt, LLP, counsel to the Company,
may rely upon this opinion solely for the purposes of their opinion, dated
the date hereof, being filed as an exhibit to the Registration Statement.
We hereby consent to the filing of this opinion of counsel as
Exhibit 5.2 to the Registration Statement and to the use of our name under
the caption "Legal Matters" in the Registration Statement.
Very truly yours,
SIMPSON THACHER & BARTLETT
<TABLE><CAPTION>
Exhibit 12
Bruno's, Inc.
Ratio of Earnings to Fixed Charges
(dollars in thousands)
Pro-Forma
----------
June 30, 1990 June 29, 1991 June 27, 1992 July 3, 1993 July 2, 1994 April 9, 1994 April 8, 1995 April 8, 1995
(52 Weeks) (52 Weeks) (52 Weeks) (53 Weeks) (52 Weeks) (40 Weeks) (40 Weeks) (40 Weeks)
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings (1):
Pre Tax Income $ 99,911 $ 111,665 $ 87,142 $ 73,387 $ 68,770 $ 48,687 $ 33,914 $ (18,186)
Interest Expense 16,781 14,384 14,152 18,210 20,527 15,930 20,732 69,132
Rent Expense 11,085 13,011 14,040 15,216 15,473 11,522 12,209 12,209
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
$ 127,777 $ 139,060 $ 115,334 $ 106,813 $ 104,770 $ 76,139 $ 66,855 $ 63,155
========== ========== ========== ========== ========== ========== ========== ==========
Fixed Charges (2):
Interest Expense $ 16,781 $ 14,384 $ 14,152 $ 18,210 $ 20,527 $ 15,930 $ 20,732 $ 69,132
Rent Expense 11,085 13,011 14,040 15,216 15,473 11,522 12,209 12,209
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
$ 27,866 $ 27,395 $ 28,192 $ 33,426 $ 36,000 $ 27,452 $ 32,941 $ 81,341
========== ========== ========== ========== ========== ========== ========== ==========
Ratio 4.59 5.08 4.09 3.20 2.91 2.77 2.03 0.78
========== ========== ========== ========== ========== ========== ========== ==========
(1) For purposes of computing the ratio of earnings to fixed charges, "Earnings" consist of income before income taxes and
extraordinary loss on extinguishment of debt, plus fixed charges.
(2) "Fixed charges" consist of interest expense and one-third of rental expense (the portion deemed representative of the
interest factor).
</TABLE>
Exhibit 23.1
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 our reports dated July 29,
1994 included or incorporated by reference in Bruno's, Inc. Form 10-K for
the fiscal year ended July 2, 1994 and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
Birmingham, Alabama
July 17, 1995
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-------------------
FORM T - 1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _________
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION (Exact name of trustee as
specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
-------------------
For information, contact:
Terry L. McRoberts, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2500
-------------------
BRUNO'S, INC.
(Exact name of obligor as specified in its charter)
Alabama 63-0411801
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
Bruno's Inc.
800 Lakeshore Parkway
Brimingham, Alabama 35211
(205) 940-9400
Address of principal executive offices) (Zip Code)
-------------------
SENIOR DEBT SECURITIES
<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.
Name Address
---- -------
Comptroller of the Currency Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
Exhibit 1. Articles of Association of First Trust of New York,
National Association, incorporated herein by reference to
Exhibit 1 of Form T-1, Registration No. 33-83774.
Exhibit 2. Certificate of Authority to Commence Business for First
Trust of New York, National Association, incorporated
herein by reference to Exhibit 2 of Form T-1,
Registration No. 33-83774.
Exhibit 3. Authorization of the Trustee to exercise corporate
trust powers for First Trust of New York, National
Association, incorporated herein by reference to Exhibit 3
of Form T-1, Registration No. 33-83774.
Exhibit 4. By-Laws of First Trust of New York, National Association,
Incorporated herein by reference to Exhibit 4 of Form T-1,
Registration No. 33-55851.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National
Association, required by Section 321(b) of the Act,
incorporated herein by reference to Exhibit 6 of Form T-1,
Registration No. 33-83774.
Exhibit 7. Report of Condition of First Trust of New York,
National Association, as of the close of business on March
31, 1995, published pursuant to law or the requirements of
its supervising or examining authority.
<PAGE>
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, First Trust of New York, National Association, a
national banking association organized and existing under the laws of the United
States, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of July, 1995.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By: /s/ David K. Leverich
-------------------------------
David K. Leverich
Vice President
<PAGE>
Exhibit 7
---------
First Trust of New York, N. A.
Statement of Financial Condition
As of 3/31/95
($000's)
3/31/95
--------------
Assets
Cash and Due From Depository Institutions $27,498
Federal Reserve Stock 3,150
Fixed Assets 890
Intangible Assets 70,954
Other Assets 3,911
--------------
Total Assets $106,403
--------------
--------------
Liabilities
Other Liabilities 1,822
--------------
Total Liabilities 1,822
Equity
Common and Preferred Stock 1,000
Surplus 104,000
Undivided Profits (419)
--------------
Total Equity Capital 104,581
Total Liabilities and Equity Capital $106,403
--------------
--------------
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
First Trust of New York, N. A.
By: /s/ David K. Leverich
- -------------------------------------
Vice President
Date: July 12, 1995
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
----------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
----------------------
Marine Midland Bank
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
Eric Parets
Senior Vice President
140 Broadway
New York, New York 10005-1180
Tel: (212) 658-6560
(Name, address and telephone number of agent for service)
BRUNO'S, INC.
(Exact name of obligor as specified in its charter)
Alabama 63-0411801
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
800 Lakeshore Parkway
Birmingham, Alabama 35211
(205) 940-9400 (Zip Code)
(Address of principal executive offices)
Subordinated Debt Securities
(Title of Indenture Securities)
<PAGE>
General
Item 1. General Information.
--------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, 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
<PAGE>
Item 16. List of Exhibits.
-----------------
Exhibit
-------
T1A(i) * - Copy of the Organization
Certificate of Marine
Midland Bank.
T1A(ii) * - Certificate of the State of
New York Banking Department
dated December 31, 1993 as
to the authority of Marine
Midland Bank to commence
business.
T1A(iii) - Not applicable.
T1A(iv) * - Copy of the existing By-Laws
of Marine Midland Bank as
adopted on January 20, 1994.
T1A(v) - Not applicable.
T1A(vi) * - Consent of Marine Midland
Bank required by Section
321(b) of the Trust
Indenture Act of 1939.
T1A(vii) - Copy of the latest report of
condition of the trustee
(March 31, 1995), published
pursuant to law or the
requirement of its
supervisory or examining
authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
* Exhibits previously filed with the Securities and
Exchange Commission with Registration No. 33-53693 and
incorporated herein by reference thereto.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the Trustee, Marine Midland Bank, a banking corporation and trust
company organized under the laws of the State of New York, has duly
caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of New
York and State of New York on the 11th day of July, 1995.
MARINE MIDLAND BANK
By:
--------------------------
Richard G. Pittius
Corporate Trust Officer
<PAGE>
Exhibit T1A(vii)
This form is for use by State Banks only. It should be
used for publication purposes only, and should not be
returned to the FDIC.
Federal Reserve Bank
Administrator of State Banks
REPORT OF CONDITION
Consolidated Report of Condition of Marine Midland Bank
of Buffalo, New York and Foreign and Domestic
Subsidiaries, a member of the Federal Reserve Sytem, at
the close of business on March 31, 1995, published in
accordance with a call made by the Federal Reserve Bank
of this District pursuant to the provisions of the
Federal Reserve Act.
ASSETS
Thousands
of dollars
Cash and balances due from depository
institutions:
Noninterest-bearing balances
currency and coin...................... $974,096
Interest-bearing balances ............. 897,640
Held-to-maturity securities............ 2,095,379
Available-for-sale securities.......... 43,753
Federal Funds sold and securities purchased
under agreements to resell in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds sold..................... 782,000
Securities purchased under
agreements to resell................... 317,383
Loans and lease financing receivables:
Loans and leases net of unearned
income......................... 12,647,803
<PAGE>
LESS: Allowance for loan and lease
losses........................... 540,156
LESS: Allocated transfer risk reserve 0
Loans and lease, net of unearned
income, allowance, and reserve......... 12,107,64
Trading assets......................... 399,701
Premises and fixed assets (including
capitalized leases).................... 182,043
Other real estate owned................... 21,078
Investments in unconsolidated
subsidiaries and associated companies..... 0
Customers' liability to this bank on
acceptances outstanding................... 20,189
Intangible assets......................... 61,282
Other assets.............................. 656,014
Total assets.............................. 18,558,205
LIABILITIES
Deposits:
In domestic offices.................... 12,873,835
Noninterest-bearing.................. 2,935,310
Interest-bearing..................... 9,938,525
In foreign offices, Edge, and Agreement
subsidiaries, and IBFs.................. 2,509,707
Noninterest-bearing.................. 0
Interest-bearing..................... 2,509,707
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased............. 412,770
Securities sold under agreements to
repurchase.......................... 325,438
Demand notes issued to the U.S. Treasury 94,586
Trading Liabilities..................... 80,731
Other borrowed money:
<PAGE>
With original maturity of one year
or less............................. 43,408
With original maturity of more than
one year............................ 0
Mortgage indebtedness and obligations
under capitalized leases............... 38,288
Bank's liability on acceptances
executed and outstanding............... 20,189
Subordinated notes and debentures...... 225,000
Other liabilities...................... 413,450
Total liabilities...................... 17,037,402
Limited-life preferred stock and
related surplus........................ 0
EQUITY CAPITAL
Perpetual preferred stock and related
surplus................................ 0
Common Stock........................... 185,000
Surplus................................ 1,758,098
Undivided profits and capital reserves. (422,295)
Net unrealized holding gains (losses)
on available-for-sale securities....... 0
Cumulative foreign currency translation
adjustments............................. 0
Total equity capital.................... 1,520,803
Total liabilities, limited-life.........
preferred stock, and equity capital..... 18,558,205
I, Gerald A. Ronning, Exec. Vice President & Controller of
the above-named bank hereby declare that (Name and title of
officer authorized to sign report) this Report of Condition
has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve
System and is true to the best of my knowledge and belief.
/s/ Harold A. Ronning
Signature of officer authorized to sign
report
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been
examined by us and to the best of our knowledge and belief
has been preapared in conformance with the instructions
<PAGE>
issued by the Board of Governors of the Federal Reserve
System and is true and correct.
/s/ James H. Cleave
Director
/s/ B. J. Kennedy
Director
/s/ Henry J. Nowak
Director
