As filed with the Securities and Exchange Commission on December 17, 1997
Registration No. 333-40571
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
DELAWARE CANANDAIGUA BRANDS, INC. 16-0716709
AND ITS SUBSIDIARY GUARANTORS
NEW YORK BATAVIA WINE CELLARS, INC. 16-1222994
DELAWARE BARTON INCORPORATED 36-3500366
DELAWARE BARTON BRANDS, LTD. 36-3185921
MARYLAND BARTON BEERS, LTD. 36-2855879
CONNECTICUT BARTON BRANDS OF CALIFORNIA, INC. 06-1048198
GEORGIA BARTON BRANDS OF GEORGIA, INC. 58-1215938
NEW YORK BARTON DISTILLERS IMPORT CORP. 13-1794441
DELAWARE BARTON FINANCIAL CORPORATION 51-0311795
WISCONSIN STEVENS POINT BEVERAGE CO. 39-0638900
ILLINOIS MONARCH IMPORT COMPANY 36-3539106
NEW YORK CANANDAIGUA WINE COMPANY, INC. 16-1462887
GEORGIA THE VIKING DISTILLERY, INC. 58-2183528
NEW YORK CANANDAIGUA EUROPE LIMITED 16-1195581
NEW YORK ROBERTS TRADING CORP. 16-0865491
__________________________________________________ ________________
(State or other jurisdic- (Exact name of registrant (I.R.S. Employer
tion of incorporation as specified in its charter) Identification No.)
or organization)
235 NORTH BLOOMFIELD ROAD
CANANDAIGUA, NEW YORK 14424
(716) 393-4130
(Address, including zip code, and telephone number,
including area code, of registrants' principal executive offices)
ROBERT SANDS, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
CANANDAIGUA BRANDS, INC.
235 NORTH BLOOMFIELD ROAD
CANANDAIGUA, NEW YORK 14424
(716) 393-4130
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
___________________________
COPY TO:
BERNARD S. KRAMER, ESQ.
MCDERMOTT, WILL & EMERY
227 WEST MONROE STREET
CHICAGO, ILLINOIS 60606-5096
___________________________
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. /X/
__________________
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
_________________________
SUBJECT TO COMPLETION, DATED DECEMBER 17, 1997
PROSPECTUS
$300,000,000
CANANDAIGUA BRANDS, INC.
DEBT SECURITIES, PREFERRED STOCK AND CLASS A COMMON STOCK
Canandaigua Brands, Inc. (the "Company") may offer, sell and issue from
time to time (i) its debt securities ("Debt Securities"), (ii) shares of its
Preferred Stock, par value $.01 per share ("Preferred Stock"), which may be
represented by depositary shares ("Depositary Shares") as described herein,
(iii) shares of its Class A Common Stock, par value $.01 per share ("Class A
Common Stock"), or (iv) any combination of the foregoing for proceeds of up to
$300,000,000. The Debt Securities may be guaranteed (the "Guarantees") by
substantially all of the direct and indirect wholly-owned subsidiaries of the
Company; provided that if any Registrants, other than the Company, guarantee any
of the Debt Securities, all of the Registrants then existing will guarantee such
Debt Securities (such subsidiaries are collectively referred to as the
"Guarantors"). The Debt Securities, Preferred Stock, Class A Common Stock and
the Guarantees are herein collectively referred to as the "Securities."
The Securities may be offered in one or more separate classes or series, in
amounts, at prices and on terms to be determined by market conditions at the
time of sale and to be set forth in a supplement or supplements to this
Prospectus (a "Prospectus Supplement"). Any Securities may be offered with
other Securities or separately. Securities may be sold for U.S. dollars,
foreign currency or currency units; amounts payable with respect to any
Securities may likewise be payable in U.S. dollars, foreign currency or currency
units, in each case, as the Company designates. Debt Securities may be
convertible and/or exchangeable for Securities or other securities or rights.
Certain terms of any Debt Securities in respect of which this Prospectus is
being delivered will be set forth in the accompanying Prospectus Supplement
including, where applicable, the specific designation (including whether senior,
senior subordinated or subordinated and whether or not convertible and/or
exchangeable), aggregate principal amount, purchase price, maturity, interest
rate (which may be fixed, floating or adjustable) and time of and method of
calculating payment of interest (if any), terms (if any) for the redemption,
conversion or exchange thereof, listing (if any) on The Nasdaq Stock Market,
Inc. or a securities exchange, and any other specific terms of the Debt
Securities. Debt Securities of a series may be issued in whole or in part in
the form of one or more permanent or temporary global securities. Certain terms
of any Preferred Stock in respect of which this Prospectus is being delivered
will be set forth in an accompanying Prospectus Supplement, including the
specific designation, number of shares, purchase price and the rights,
preferences and privileges thereof and any qualifications or restrictions
thereon (including dividends, liquidation value, voting rights, terms for
redemption, conversion or exchange thereof and any other specific terms of the
Preferred Stock), listing, if any, on The Nasdaq Stock Market, Inc. or a
securities exchange and whether the Company has elected to offer the Preferred
Stock in the form of depositary shares. Certain terms of the Class A Common
Stock, including the aggregate number of shares offered and the public offering
price, will be included in a Prospectus Supplement. The Class A Common Stock is
quoted on the Nasdaq National Market System.
The Securities may be sold on a negotiated or competitive bid basis to or
through underwriters or dealers designated from time to time or to other
purchasers directly or through agents designated from time to time. Certain
terms of the offering and sale of the Securities, including, where applicable,
the names of the underwriters, dealers or agents, if any, the principal amount
of Debt Securities or number of shares to be purchased, the purchase price of
the Securities and the proceeds to the Company from such sale, and any
applicable commissions, discounts and other items constituting compensation of
such underwriters, dealers or agents, will also be set forth in the accompanying
Prospectus Supplement. See "Plan of Distribution."
This Prospectus may not be used to consummate sales of Securities unless it
is accompanied by a Prospectus Supplement.
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SECURITIES OFFERED
HEREBY.
____________________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
___________________________________________
The date of this Prospectus is _______________, 1997.
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.
CERTAIN PERSONS, INCLUDING THE UNDERWRITERS, PARTICIPATING IN THE OFFERINGS
MAY ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE
PRICE OF THE SECURITIES INCLUDING OVER-ALLOTMENTS, STABILIZING BIDS, AND
SYNDICATE SHORT COVERING TRANSACTIONS ON THE NASDAQ NATIONAL MARKET SYSTEM OR
OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
FOR A DESCRIPTION OF THESE ACTIVITIES SEE "UNDERWRITING."
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, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices at Seven World Trade
Center, Suite 1300, New York, New York 10048 and at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can also be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Commission also maintains a World Wide Web site on the Internet
(http://www.sec.gov) from which such reports, proxy statements and other
information may be obtained. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of the NASDAQ
National Market, 1735 K Street, N.W., Washington, D.C. 20006.
The Company and the Guarantors have filed a Registration Statement on Form
S-3 (together with all amendments, schedules and exhibits thereto, the
"Registration Statement") with the Commission in Washington, D.C., in accordance
with the provisions of the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the securities offered hereby. As permitted by the rules
and regulations of the Commission, this Prospectus does not contain all of the
information set forth in the Registration Statement and the exhibits and
schedules thereto. Statements contained herein concerning the provisions of
documents filed with, or incorporated by reference in, the Registration
Statement are not necessarily complete and each such statement is hereby
qualified in its entirety by reference to the copy of the applicable documents
filed with the Commission. The Registration Statement and the exhibits thereto
may be inspected without charge at the offices of the Commission or copies
thereof may be obtained at prescribed rates from the Public Reference Section of
the Commission at the address set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
February 28, 1997;
(2) the Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended May 31, 1997 and August 31, 1997; and
(3) the Company's Current Report on Form 8-K dated August 28, 1997.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to termination of the offering of the securities offered
hereby shall be deemed to be incorporated by reference into this Prospectus and
to be a part hereof from the date of filing of such documents. Any statement
contained in this Prospectus or in a document incorporated or deemed to be
incorporated by reference in this Prospectus will be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any 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 will not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
A copy of any and all of the documents incorporated herein by reference
(other than exhibits unless such exhibits are specifically incorporated by
reference into any such document) will be provided without charge to any person,
including a beneficial owner, to whom a copy of this Prospectus is delivered,
upon written or oral request. Requests should be directed to Canandaigua
Brands, Inc., Attention: Robert S. Sands, Secretary, 235 North Bloomfield Road,
New York 14424; telephone number (716) 393-4130.
THE COMPANY
The Company is a leading producer and marketer of branded beverage alcohol
products, with over 125 national and regional brands which are distributed by
over 1,400 wholesalers throughout the United States and in selected
international markets.
The Company is a Delaware corporation organized in 1972 as the successor to
a business founded in 1945 by Marvin Sands, Chairman of the Board of the
Company. The Company, together with the Guarantors comprise substantially all
of the operations, business and assets of the Company. The executive offices of
the Company and the Guarantors are located at 235 North Bloomfield Road,
Canandaigua, New York 14424, and the telephone number is (716) 393-4130.
THE GUARANTORS
The Guarantors are the following subsidiaries: Batavia Wine Cellars, Inc.,
Barton Incorporated, Barton Brands, Ltd., Barton Beers, Ltd., Barton Brands of
California, Inc., Barton Brands of Georgia, Inc., Barton Distillers Import
Corp., Barton Financial Corporation, Stevens Point Beverage Co., Monarch Import
Company, Canandaigua Wine Company, Inc. , The Viking Distillery, Inc. ,
Canandaigua Europe Limited and Roberts Trading Corp. All of the Guarantors
are direct or indirect wholly-owned subsidiaries of the Company. If so
provided in a Prospectus Supplement, each of the Guarantors would fully and
unconditionally guarantee on a joint and several basis the Company's
obligations under the Debt Securities, subject (a) to any subordination
provisions described in the Prospectus Supplement, and (b) in the case of
the Guarantees generally, to such Guarantee not constituting or resulting in
a violation of any applicable fraudulent conveyance or similar law of any
relevant jurisdiction, in which case, the liability of the Guarantor under
its Guarantee will be reduced to the maximum amount, after giving effect to
all other contingent and fixed liabilities of such Guarantor (which
generally consists of indebtedness and other obligations of such Guarantor,
including trade payables), permissible under applicable fraudulent
conveyance or similar law.
RISK FACTORS
A PROSPECTIVE PURCHASER OF THE SECURITIES OFFERED HEREBY SHOULD GIVE
CAREFUL CONSIDERATION TO THE FOLLOWING RISK FACTORS.
GENERAL DECLINE IN CONSUMPTION OF BEVERAGE ALCOHOL PRODUCTS
The beverage alcohol industry in the United States consists of the
production, importation, marketing and distribution of beer, wine and distilled
spirits products. The overall per capita consumption of beverage alcohol
products by adults (ages 21 and over) has declined substantially over the past
twenty years. These declines have been caused by a variety of factors
including: increased concern about the health consequences of consuming
beverage alcohol products and about drinking and driving; a trend toward a
healthier diet including lighter, lower calorie beverages such as diet soft
drinks, juices and sparkling water products; the increased activity of anti-
alcohol consumer groups; an increase in the minimum drinking age from 18 to 21
in various states; and increased Federal and state excise taxes.
EXCISE TAXES AND GOVERNMENT REGULATIONS
The Federal government and individual states impose excise taxes on
beverage alcohol products in varying amounts which have been subject to change.
Increases in excise taxes on beverage alcohol products, if enacted, could
materially and adversely affect the Company's financial condition or results of
operations. In addition, the beverage alcohol products industry is subject to
extensive regulation by state and Federal agencies. The Federal Bureau of
Alcohol, Tobacco and Firearms and the various state liquor authorities regulate
such matters as licensing requirements, trade and pricing practices, permitted
and required labelling, advertising and relations with wholesalers and
retailers. In recent years, Federal and state regulators have required warning
labels and signage. There can be no assurance that new or revised regulations
or increased licensing fees and requirements will not have a material adverse
effect on the Company's financial condition or results of operations.
DEPENDENCE ON DISTRIBUTION CHANNELS
The Company sells its products principally to wholesalers for resale to
retail outlets including grocery stores, package liquor stores, club and
discount stores and restaurants. The replacement or poor performance of the
Company's major wholesalers or the Company's inability to collect accounts
receivable from its major wholesalers could materially and adversely affect the
Company's results of operations and financial condition. Distribution channels
for beverage alcohol products have been characterized in recent years by rapid
change, including consolidations of certain wholesalers. Wholesalers and
retailers of the Company's products offer products which compete directly with
the Company's products for retail shelf space and consumer purchases.
Accordingly, there is a risk that these wholesalers or retailers may give higher
priority to products of the Company's competitors. There can be no assurance
that the Company's wholesalers and retailers will continue to purchase the
Company's products or provide the Company's products with adequate levels of
promotional support.
RISK RELATED TO THE TERMINATION OR NON-RENEWAL OF IMPORTED BEER DISTRIBUTION
AGREEMENTS
All of the Company's imported beer products are marketed and sold pursuant
to exclusive distribution agreements with the suppliers of these products which
are subject to renewal from time to time. The Company's agreement to distribute
Corona and its other Mexican beer brands expires in December 2006 and, subject
to compliance with certain performance criteria and the other terms of the
agreement, will be automatically renewed for additional terms of five years.
The Company's agreement for the importation of St. Pauli Girl expires in June
1998 and, subject to compliance with certain performance criteria, may be
extended by the Company until June 2003. The Company's Tsingtao agreement
expires in December 1999 and, subject to compliance with certain performance
criteria and other terms of the agreement,will be automatically renewed until
December 2002. Prior to their expiration, these agreements may be terminated if
the Company fails to meet certain performance criteria or, in the case of the
Mexican beer brands, the supplier does not consent to certain key management
changes, which consent may not be unreasonably withheld. There can be no
assurance that the Company's beer distribution agreements will be renewed or not
terminated prior to expiration.
DEPENDENCE ON RAW MATERIALS
The Company's business is heavily dependent upon raw materials, such as
grapes, grape juice concentrate, grains, alcohol from third-party suppliers,
tequila from Mexico and packaging materials. The Company could experience raw
material supply, production or shipment difficulties which could adversely
affect its ability to supply goods to its customers. The Company is also
directly affected by increases in the cost of such raw materials.
COMPETITION
The Company is in a highly competitive environment and its dollar sales and
unit volume could be negatively affected by its inability to maintain or
increase prices, changes in geographic or product mix, a general decline in
beverage alcohol consumption or the decision of its wholesale customers,
retailers or consumers to purchase competitive products instead of the Company's
products. Wholesaler, retailer and consumer purchasing decisions are influenced
by, among other things, the perceived absolute or relative overall value of the
Company's products, including their quality or pricing, compared to competitive
products. Unit volume and dollar sales could also be affected by pricing,
purchasing, financing, operational, advertising or promotional decisions made by
wholesalers and retailers which could affect their supply of, or consumer demand
for, the Company's products. The Company could also experience higher than
expected selling, general and administrative expenses if it finds it necessary
to increase its number of personnel or its advertising or promotional
expenditures to maintain its competitive position or for other reasons.
RISK OF ADVERSE EFFECT ON THE COMPANY FROM INDEBTEDNESS
The Company has incurred substantial indebtedness to finance its prior
acquisitions. The Company's ability to satisfy its financial obligations under
its indebtedness outstanding from time to time will depend upon its future
operating performance, which is subject to prevailing economic conditions,
levels of interest rates and financial, business and other factors, many of
which are beyond the Company's control. Therefore, there can be no assurance
that the Company's cash flow from operations will be sufficient to meet all of
its debt service requirements and to fund its capital expenditure requirements.
The Company's current and future debt service obligations and covenants
could have important consequences to the purchasers of the Securities offered
hereby, including the following: (i) the Company is restricted
from paying dividends on shares of any class of stock of the Company by the
Company's bank credit facility; (ii) the Company's ability to obtain
financing for future working capital needs or acquisitions or other purposes
may be limited; (iii) a significant portion of the Company's cash flow from
operations will be dedicated to the payment of principal and interest on its
indebtedness, thereby reducing funds available for operations; (iv) the
Company is subject to restrictive covenants that could limit its ability to
conduct its business; and (v) the Company may be more vulnerable to adverse
economic conditions than less leveraged competitors and, thus, may be
limited in its ability to withstand competitive pressures.
CONTROL BY SANDS FAMILY
The Company's capital stock consists of Class A Common Stock and the
Company's Class B Common Stock, par value $.01 per share ("Class B Common Stock"
and together with the Class A Common Stock, the "Company's Common Stock").
Holders of Class A Common Stock are entitled to one vote per share and are
entitled, as a class, to elect one-fourth of the members of the Board of
Directors. Holders of Class B Common Stock are entitled to 10 votes per share
and are entitled, as a class, to elect the remaining directors. As of August
31, 1997, the family of Marvin Sands, the founder and Chairman of the Board of
the Company, beneficially owned approximately 12% of the outstanding shares of
Class A Common Stock (exclusive of shares of Class A Common Stock issuable
pursuant to the conversion feature of the Class B Common Stock owned by the
Sands family) and approximately 85% of the outstanding shares of Class B Common
Stock. On all matters other than the election of directors, the Sands family
has the ability to vote approximately 62% of the votes entitled to be cast by
holders of the Company's capital stock, voting as a single class. Consequently,
the Sands family effectively has control of the Company and would generally have
sufficient voting power to determine the outcome of any corporate transaction or
other matter submitted to the stockholders for approval.
DEPENDENCE UPON MANAGEMENT
The Company's success depends in part on a few key management employees.
These key management employees are Marvin Sands, the Chairman of the Board,
Richard Sands, the President and Chief Executive Officer, Robert Sands,
Executive Vice President and General Counsel, and Ellis Goodman, the Chief
Executive Officer of Barton Incorporated, a wholly-owned subsidiary of the
Company. If, for any reason, such key personnel do not continue to be active in
the Company's management, operations could be adversely affected.
USE OF PROCEEDS
Except as may otherwise be set forth in the Prospectus Supplement, the net
proceeds from the sale of the Securities offered hereby will be used for working
capital and general corporate purposes. Pending such application of the
proceeds, the Company will invest the proceeds of this offering in certificates
of deposit, United States government securities or certain other interest
bearing securities.
DIVIDEND POLICY
The Company's policy is to retain all of its earnings to finance the
development and expansion of its business. In addition, the indentures for the
Company's outstanding senior subordinated notes and the Company's
existing bank credit facility restrict the payment of
dividends. Any supplemental indentures for the Debt Securities may also
restrict or prohibit the payment of dividends.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's historical ratio of earnings
to fixed charges:
<TABLE>
<CAPTION>
For the Six For the Fiscal For the Six Month For the Fiscal Years
Months Ended Year Ended Transition Period Ended August 31,
August 31, February 28, Ended February 29,
1997 1996 1997 1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges(1)(2) . . . 3.1x 2.3x 2.3x 1.4x 3.4x 2.0x 4.4x 3.4x
_______________________
(1) For the purpose of calculating the ratio of earnings to fixed charges, "earnings" represents income before provision for
income taxes plus fixed charges. "Fixed Charges" consist of interest expensed and capitalized, amortization of debt
issuance costs, amortization of discount on debt, and the portion of rental expense which management believes is
representative of the interest component of lease expense.
(2) The ratio of earnings to combined fixed charges and preferred stock dividend requirements is the same as the ratio of
earnings to fixed charges.
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The Company may offer Debt Securities under this Prospectus, any of which
may be issued as convertible and/or exchangeable 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 offered by any Prospectus
Supplement and the extent, if any, to which such general provision may apply,
will be described in the Prospectus Supplement relating to such Debt
Securities. The statements made under this heading relating to the Debt
Securities and the Indenture (as defined herein) are summaries of the
anticipated provisions thereof, do not purport to be complete and are
qualified in their entirety by reference to the Indenture and such Debt
Securities.
The Debt Securities will represent unsecured general obligations of the
Company, unless otherwise provided in the Prospectus Supplement. If so provided
in a Prospectus Supplement, the Debt Securities will have the benefit of the
Guarantees from the Guarantors. The Company's subsidiaries are separate and
distinct legal entities and have no obligation, contingent or otherwise, to pay
any amounts due pursuant to the Debt Securities or to make any funds available
therefor, whether by dividends, loans or other payments, other than as expressly
provided in the Guarantees. The payment of dividends or the making of loans and
advances to the Company by its subsidiaries are subject to contractual,
statutory or regulatory restrictions, are contingent upon the earnings of those
subsidiaries and are subject to various business considerations. See "-
Guarantees."
A substantial portion of the Company's operations are conducted through
subsidiaries and any right of the Company to receive assets of any of its
subsidiaries upon liquidation or recapitalization of any such subsidiaries (and
the consequent right of the holders of Debt Securities to participate in those
assets) will be subject to the claims of such subsidiaries' creditors. Even in
the event that the Company is recognized as a creditor of a subsidiary, the
Company's claims would still be subject to any security interest in the assets
of such subsidiary and any indebtedness of such subsidiary senior to that of the
Company. The Company's ability to service its indebtedness, including the Debt
Securities, is dependent primarily upon the receipt of funds from its
subsidiaries. The subsidiaries are separate legal entities and have no
obligation to pay any amounts due pursuant to the Debt Securities, other than as
expressly provided in the Guarantees.
The Debt Securities will be issued under an Indenture (the "Indenture")
among the Company, the Guarantors (if applicable) and Harris Trust and Savings
Bank ("Harris"), as trustee. A copy of the form of Indenture has been filed as
an exhibit to the Registration Statement of which this Prospectus is a part and
is available for inspection at the corporate trust office of Harris at 311 West
Monroe Street, 12th Floor, Chicago, Illinois 60606, or as described above under
"Available Information." The Indenture is subject to, and is governed by, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The
following summary of certain provisions of the Debt Securities and the Indenture
does not purport to be complete and is subject to, and qualified in its entirety
by reference to, all the provisions of the Debt Securities, the Indenture and
the Guarantees, including the definitions therein of certain terms and of those
terms made a part thereof by the Trust Indenture Act. All section references
appearing herein are to sections of the Indenture unless otherwise indicated and
capitalized terms used but not defined below shall have the respective meanings
set forth in the Indenture.
As used in the Indenture and in this section, the term the "Company" means
Canandaigua Brands, Inc. without reference to its consolidated subsidiaries.
Except to the extent set forth in a Prospectus Supplement, the Indenture does
not contain any covenants or restrictions that afford holders of the Debt
Securities special protection in the event of a change of control or highly
leveraged transaction.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued in one or more series, in such form or forms, with such terms and up
to the aggregate principal amount authorized from time to time by the Company
(Sections 2.1 and 2.2). The terms of each series of Debt Securities will be
established by or pursuant to a resolution of the Board of Directors of the
Company and set forth or determined in the manner provided in an officers'
certificate or by a supplemental indenture. The particular terms of the Debt
Securities offered pursuant to any Prospectus Supplement or Prospectus
Supplements will be described in such Prospectus Supplement or Prospectus
Supplements. 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 any holder, for issuances of additional Debt Securities of such
series. Unless otherwise provided in the Prospectus Supplement, the Debt
Securities may be presented for registration of transfer and exchange and for
payment or, if applicable, for conversion and/or exchange at the office of the
applicable Trustee, unless the Company appoints a different office or agency for
such purpose (Section 4.2). At the option of the Company, the payment of
interest may also be made by check mailed to the address of the person entitled
thereto as it appears in the Debt Security register (Section 4.1).
The applicable Prospectus Supplement will describe the following terms of
any Debt Securities (the "Offered Debt Securities") in respect of which this
Prospectus is being delivered (to the extent applicable to the Offered Debt
Securities):
(1) the designation (including whether they are senior Debt Securities,
senior subordinated Debt Securities or subordinated Debt Securities and whether
such Debt Securities are convertible and/or exchangeable), aggregate principal
amount and authorized denominations, if other than denominations of $1,000 and
any integral multiple thereof, of the Offered Debt Securities;
(2) the percentage of the principal amount at which such Offered Debt
Securities will be issued;
(3) the date or dates (and whether fixed or extendable) on which the
principal of the Offered Debt Securities is payable or the method of
determination thereof;
(4) the rate or rates (which may be fixed, floating or adjustable) at which
the Offered Debt Securities will bear interest, if any, the method of
calculating such rates, the date or dates from which such interest will accrue
or the manner of determining such dates, the interest payment dates on which
such interest shall be payable and the record dates for the determination of the
holders of Debt Securities to whom interest will be payable;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on the Offered Debt Securities will be payable;
(6) any provisions relating to the issuance of the Offered Debt Securities
at an original issue discount;
(7) the price or prices at which, the period or periods within which, and
the terms and conditions upon which the Offered Debt Securities may be redeemed,
in whole or in part, at the option of the Company, pursuant to any sinking fund
or otherwise (including the form or method of payment if other than in cash,
which may include securities of other issuers);
(8) the obligation, if any, of the Company to redeem, purchase or repay the
Offered Debt Securities pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of the holder of any Debt Securities and
the price or prices at which, the period or periods within which and the terms
and conditions upon which the Offered Debt Securities will be redeemed,
purchased or repaid, in whole or in part, pursuant to any such obligation
(including the form or method of payment if other than in cash, which may
include securities of other issuers), and any provisions for the remarketing of
such Debt Securities;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Offered Debt Securities shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of the Offered Debt Securities which will be payable upon
declaration of acceleration of the maturity thereof or [provable] in bankruptcy;
(11) any Events of Default in lieu of or in addition to those described
herein and remedies thereof;
(12) whether the Offered Debt Securities are convertible or exchangeable
and, if so, the securities or rights into which the Offered Debt Securities are
convertible or exchangeable (which may include other Debt Securities, Preferred
Stock, Class A Common Stock, or other securities or rights of the Company
(including rights to receive payment in cash or securities based on the value,
rate or price of one or more specified commodities, currencies or indices) or
exchangeable for securities of other issuers or a combination of the foregoing)
and the terms and conditions upon which such conversion or exchange will be
effected including the initial conversion or exchange price or rate, the
conversion or exchange period and any other provision in addition to or in lieu
of those described herein;
(13) any trustees, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Offered Debt Securities;
(14) the currency or currencies, including composite currencies, in which
the Offered Debt Securities will be denominated if other than the currency of
the United States of America;
(15) if other than the coin or currency in which the Offered Debt
Securities are denominated, the coin or currency in which payment of the
principal of, premium, if any, or interest on the Offered Debt Securities will
be payable (and the manner in which the equivalent of the principal amount
thereof in the currency of the United States is to be determined for any
purpose, including for determining the principal amount outstanding);
(16) if the principal of, premium, if any, or interest on the Offered Debt
Securities will be payable, at the election of the Company or a holder thereof,
in a coin or currency other than that in which the Offered Debt Securities are
denominated, the period or periods within which, and terms and conditions upon
which, such election may be made;
(17) if the amount of payments of principal of, premium, if any, and
interest on the Offered Debt Securities may be determined with reference to the
value, rate or price of one or more specified commodities, currencies or
indices, the manner in which such amounts shall be determined;
(18) whether and under what circumstances the Company will pay additional
amounts on the Offered Debt Securities held by a person who is not a United
States of America person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Company will have the option
to redeem such Debt Securities rather than pay such additional amounts;
(19) if receipt of certain certificates or other documents or satisfaction
of other conditions will be necessary for any purpose, including, without
limitation, as a condition to the issuance of the Offered Debt Securities in
definitive form (whether upon original issue or upon exchange of a temporary
Debt Security), the form and terms of such certificates, documents or
conditions;
(20) any other affirmative or negative covenants with respect to the
Offered Debt Securities;
(21) whether the Offered Debt Securities will be issued in whole or in part
in the form of one or more Global Securities and, in such case, the Depositary
(as defined in "Description of Depositary Shares--General") therefor and the
circumstances under which any Global Security may be exchanged for Offered Debt
Securities registered in the name of, and under which any transfer of such
Global Security may be registered in the name of, any person other than the
Depositary;
(22) whether the Debt Securities are defeasible;
(23) whether and the extent that the Offered Debt Securities shall be
guaranteed by the Guarantors and the form of any such Guarantee; and
(24) any other specific terms of the Offered Debt Securities (Section 2.2).
Unless otherwise indicated in the Prospectus Supplement relating to the
Debt Securities, principal of and any premium or interest on the Debt Securities
will be payable, and the Debt Securities will be exchangeable and transfers
thereof will be registrable, at the office of the Trustee at its principal
executive offices, provided that, at the option of the Company, payment of
interest may be made by check mailed to the address of the person entitled
thereto as it appears in the Debt Security register. Any payment of principal
and any premium or interest required to be made on an interest payment date,
redemption date or at maturity which is not a business day need not be made on
such date, but may be made on the next succeeding business day with the same
force and effect as if made on the interest payment date, redemption date or at
maturity, as the case may be, and no interest shall accrue for the period from
and after such interest payment day, redemption date or maturity.
Unless otherwise indicated in the Prospectus Supplement relating to Debt
Securities, the Debt Securities will be issued only in fully registered form,
without coupons, in denominations of $1,000 or any integral multiple thereof
(Section 2.3). No service charge will be made for any transfer or exchange of
the Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith
(Section 2.10).
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities (as defined below) to be offered and sold at a substantial
discount from their stated principal amount. In addition, under Treasury
Regulations it is possible that the Debt Securities which are offered and sold
at their stated principal amount would, under certain circumstances, be treated
as issued at an original issue discount for Federal income tax purposes.
Federal income tax consequences and other special considerations applicable to
any such Original Issue Discount Securities (or other Debt Securities treated as
issued at an original issue discount) will be described in the Prospectus
Supplement relating thereto. "Original Issue Discount Security" means any
Offered Debt Security, including any Debt Security that does not provide for the
payment of interest prior to maturity, which is issued at a price lower than the
principal amount thereof and which provides that upon redemption or acceleration
of the stated maturity thereof an amount less than the principal amount thereof
shall become due and payable.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Global Securities that will be deposited with a Depositary or its nominees
identified in the Prospectus Supplement relating to the Debt Securities. In
such a case, one or more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding Debt Securities of the series to be represented by such Global
Security or Securities.
Unless and until it is exchanged in whole or in part for Debt Securities in
definitive registered form, a Global Security may not be registered for transfer
or exchange except as a whole by the Depositary for such Global Security to a
nominee of such Depositary and except in the circumstances described in the
Prospectus Supplement relating to the Offered Debt Securities. The specific
terms of the depositary arrangement with respect to a series of Debt Securities
will be described in the Prospectus Supplement relating to such series.
GUARANTEES
In order to enable the Company to obtain more favorable interest rates and
terms, payment of principal of, premium, if any, and interest on the Offered
Debt Securities, such Offered Debt Securities may (if so specified in the
Prospectus Supplement) be guaranteed, jointly and severally by all of the
Guarantors pursuant to the Guarantees; provided that the Guarantees will not be
applicable to or guarantee the Company's obligations with respect to the
conversion of the Debt Securities into shares of the Company's other
securities. Each Guarantee will be an unsecured obligation of each
Guarantor issuing such Guarantee. The ranking of such Guarantee and the
terms of the subordination, if any, will be set forth in the Prospectus
Supplement.
The Indenture provides that, in the event any Guarantee would constitute or
result in a violation of any applicable fraudulent conveyance or similar law of
any relevant jurisdiction, the liability of the Guarantor under such Guarantee
shall be reduced to the maximum amount, after giving effect to all other
contingent and other liabilities of such Guarantor, permissible under the
applicable fraudulent conveyance or similar law.
MODIFICATION OF THE INDENTURE
Modifications of the Indenture with respect to the Debt Securities of any
series may be made by the Company and the applicable Trustee, with or without
the consent of the holders of Debt Securities, under certain circumstances to be
described in a Prospectus Supplement.
DEFEASANCE; SATISFACTION AND DISCHARGE
The Prospectus Supplement will outline the conditions under which the
Company may elect to have certain of its obligations under the Indenture
discharged and under which the Indenture obligations will be deemed satisfied.
DEFAULTS AND NOTICE
The Debt Securities will contain Events of Default to be specified in the
applicable Prospectus Supplement, including, without limitation:
(1) failure to pay the principal of, or premium, if any, on any Debt
Security of such series when due and payable (whether at maturity, by call for
redemption, through any mandatory sinking fund, by redemption at the option of
the holder, by declaration or acceleration or otherwise);
(2) failure to make a payment of any interest on any Debt Security of such
series when due;
(3) failure of the Company or any Guarantor to perform or observe any other
covenants or agreements of the Company or any Guarantor in the Indenture or in
the Debt Securities of such series;
(4) certain events of bankruptcy, insolvency or reorganization of the
Company or any Guarantor;
(5) any Guarantee in respect of such series of Debt Securities shall for
any reason cease to be, or be asserted in writing by any Guarantor thereof or
the Company not to be, in full force and effect, and enforceable in accordance
with its terms; and
(6) certain cross defaults.
If an Event of Default with respect to Debt Securities of any series shall occur
and be continuing, the Trustee or the holders of not less than 25% in aggregate
principal amount of the then outstanding Debt Securities of such series may
declare the principal amount (or, if the Debt Securities of such series are
issued at an original issue discount, such portion of the principal amount as
may be specified in the terms of the Debt Securities of such series) of all Debt
Securities of such series and/or such other amount or amounts as the Debt
Securities or supplemental indenture with respect to such series may provide, to
be due and payable immediately (Section 7.1).
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default, give to holders of Debt Securities of any series notice
of all uncured defaults with respect to such series known to it; provided,
however, that, except in the case of a default that results from the failure to
make any payment of the principal of, premium, if any, or interest on the Debt
Securities of any series, or in the payment of any mandatory sinking fund
installment with respect to Debt Securities of such series, the Trustee may
withhold such notice if it in good faith determines that the withholding of such
notice is in the interest of the holders of Debt Securities of such series
(Section 11.3).
The Indenture contains a provision entitling the Trustee to be indemnified
by holders of Debt Securities before proceeding to exercise any trust or power
under the Indenture at the request of such holders (Section 11.1). The
Indenture provides that the holders of a majority in aggregate principal amount
of the then outstanding Debt Securities of any series may direct the time,
method and place of conducting any proceedings for any remedy available to the
Trustee, or of exercising any trust or power conferred upon the Trustee with
respect to the Debt Securities of such series, provided, however, that the
Trustee may decline to follow any such direction if, among other reasons, the
Trustee determines in good faith that the actions or proceedings as directed may
not lawfully be taken, would involve the Trustee in personal liability or would
be unduly prejudicial to the holders of the Debt Securities of such series not
joining in such direction (Section 7.6). The right of a holder to institute a
proceeding with respect to the Indenture is subject to certain conditions
precedent including, without limitation, that the holders of a majority in
aggregate principal amount of the Debt Securities of such series then
outstanding make a written request upon the Trustee to exercise its power under
the Indenture, indemnify the Trustee and afford the Trustee reasonable
opportunity to act but the holder has an absolute right to receipt of the
principal of, premium, if any, and interest when due, to require conversion or
exchange of Debt Securities if the Indenture provides for convertibility or
exchangeability, at the option of the holder and to institute suit for the
enforcement thereof (Section 7.7).
CONCERNING THE TRUSTEES
The Prospectus Supplement with respect to the Offered Debt Securities will
describe any relationship between the Company and the Trustee for such Offered
Debt Securities.
REPORTS TO HOLDERS OF DEBT SECURITIES
The Company intends to furnish to holders of Debt Securities all quarterly
and annual reports which it furnishes to holders of the Company's Common Stock.
DESCRIPTION OF PREFERRED STOCK
The Board of Directors of the Company is authorized to issue in one or more
series without stockholder approval up to a maximum of 1,000,000 shares of
Preferred Stock. The shares can be issued with such designations, preferences,
qualifications, privileges, limitations, restrictions, options, voting powers
(full or limited), conversion or exchange rights and other special or relative
rights as the Board of Directors shall from time to time fix by resolution.
Thus, without stockholder approval, the Company could authorize the issuance of
Preferred Stock with voting, conversion and other rights that could dilute the
voting power and other rights of holders of the Company's Common Stock. The
dividend, voting, conversion, exchange, repurchase and redemption rights, if
applicable, the liquidation preference, and other specific terms of each series
of the Preferred Stock will be set forth in the Prospectus Supplement relating
to such series of Preferred Stock. The Company currently has no shares of
Preferred Stock outstanding. Prior to the actual issuance of any series of
Preferred Stock, the Company must obtain consent of the Administrative Agent of
the Company's bank credit facility.
The applicable Prospectus Supplement will describe the following terms of
any Preferred Stock in respect of which this Prospectus is being delivered (to
the extent applicable to such Preferred Stock): (1) the specific designation,
number of shares, seniority and purchase price; (2) any liquidation preference
per share; (3) any date of maturity; (4) any redemption, repayment or sinking
fund provisions; (5) any dividend rate or rates and the dates on which any such
dividends will be payable (or the method by which such rates or dates will be
determined); (6) any voting rights; (7) if other than the currency of the United
States of America, the currency or currencies including composite currencies in
which such Preferred Stock is denominated and/or in which payments will or may
be payable; (8) the method by which amounts in respect of such Preferred Stock
may be calculated and any commodities, currencies or indices, or value, rate or
price, relevant to such calculation; (9) whether the Preferred Stock is
convertible or exchangeable and, if so, the securities or rights into which such
Preferred Stock is convertible or exchangeable (which may include other
Preferred Stock, Debt Securities, Class A Common Stock or other securities or
rights of the Company (including rights to receive payment in cash or securities
based on the value, rate or price of one or more specified commodities,
currencies or indices) or securities of other issuers or a combination of the
foregoing), and the terms and conditions upon which such conversions or
exchanges will be effected including the initial conversion or exchange prices
or rates, the conversion or exchange period and any other related provisions;
(10) the place or places where dividends and other payments on the Preferred
Stock will be payable; and (11) any additional voting, dividend, liquidation,
redemption and other rights, preferences, privileges, limitations and
restrictions.
As described under "Description of Depositary Shares" the Company may, at
its option, elect to offer Depositary Shares evidenced by depositary receipts
("Depositary Receipts"), each representing an interest (to be specified in the
Prospectus Supplement relating to the particular series of the Preferred Stock)
in a share of the particular series of the Preferred Stock issued and deposited
with a Depositary (as defined below).
All shares of Preferred Stock offered hereby, or issuable upon conversion,
exchange or exercise of Securities, will, when issued, be fully paid and non-
assessable.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts does not purport to be complete and is subject
to, and qualified in its entirety by reference to, the form of Deposit Agreement
and form of Depositary Receipts relating to each series of the Preferred Stock.
GENERAL
The Company may, at its option, elect to have shares of Preferred Stock be
represented by Depositary Shares. The shares of any series of the Preferred
Stock underlying the Depositary Shares will be deposited under a separate
deposit agreement (the "Deposit Agreement") between the Company and a bank or
trust company selected by the Company having its principal office in the United
States and a combined capital and surplus of at least $50,000,000 (the
"Depositary"). The Prospectus Supplement relating to a series of Depositary
Shares will set forth the name and address of the Depositary. Subject to the
terms of the Deposit Agreement, each owner of a Depositary Share will be
entitled, in proportion to the applicable interest in the number of shares of
Preferred Stock underlying such Depositary Share, to all the rights and
preferences of the Preferred Stock underlying such Depositary Share (including
dividend, voting, redemption, conversion, exchange and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement, each of which will represent the applicable
interest in a number of shares of a particular series of the Preferred Stock
described in the applicable Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, a holder of
Depositary Shares is not entitled to receive the shares of Preferred Stock
underlying the Depositary Shares.
If required by law or applicable securities exchange rules, engraved
Depositary Receipts will be prepared. Pending their preparation, the Depositary
may, upon the written order of the Company, issue temporary Depositary Receipts
substantially identical to the definitive Depositary Receipts. Definitive
Depositary Receipts will thereafter be prepared without unreasonable delay.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares representing such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, as nearly as practicable, in proportion to the number of
Depositary Shares owned by such holder, unless the Depositary determines that it
is not feasible to make such distribution, in which case the Depositary may,
with the approval of the Company, sell such property and distribute the net
proceeds from such sale to such holders.
The Deposit Agreement also contains provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
Preferred Stock shall be made available to holders of Depositary Shares.
CONVERSION AND EXCHANGE
If any Preferred Stock underlying the Depositary Shares is subject to
provisions relating to its conversion or exchange as set forth in the Prospectus
Supplement relating thereto, each record holder of Depositary Shares will have
the right or obligation to convert or exchange such Depositary Shares pursuant
to the terms thereof.
REDEMPTION OF DEPOSITARY SHARES
If a series of Preferred Stock underlying the Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from the proceeds received
by the Depositary resulting from the redemption, in whole or in part, of the
series of Preferred Stock held by the Depositary. The redemption price per
Depositary Share will be equal to the aggregate redemption price payable with
respect to the number of shares of Preferred Stock underlying the Depositary
Shares. Whenever the Company redeems Preferred Stock from the Depositary, the
Depositary will redeem as of the same redemption date a proportionate number of
Depositary Shares representing the shares of Preferred Stock that were
redeemed. If less than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata as may
be determined by the Company.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
redemption price payable upon such redemption. Any funds deposited by the
Company with the Depositary for any Depositary Shares which the holders thereof
fail to redeem shall be returned to the Company after a period of two years from
the date such funds are so deposited.
VOTING
Upon receipt of notice of any meeting or action in lieu of any meeting at
which the holders of any shares of Preferred Stock underlying the Depositary
Shares are entitled to vote, the Depositary will mail the information contained
in such notice to the record holders of the Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary Shares on the record
date (which will be the same date for the Preferred Stock) will be entitled to
instruct the Depositary as to the exercise of the voting rights pertaining to
the number of shares of Preferred Stock underlying such holder's Depositary
Shares. The Depositary will endeavor, insofar as practicable, to vote the
number of shares of Preferred Stock underlying such Depositary Shares in
accordance with such instructions, and the Company will agree to take all action
which may be deemed necessary by the Depositary in order to enable the
Depositary to do so.
AMENDMENT OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary; provided, however, that any amendment
which materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been approved
by at least a majority of the Depositary Shares then outstanding.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
that arise solely from the existence of the depositary arrangements. The
Company will pay charges of the Depositary in connection with the initial
deposit of the Preferred Stock and any exchange or redemption of the Preferred
Stock. Holders of Depositary Shares will pay all other transfer and other taxes
and governmental charges, and, in addition, such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Company, or at the option of the Company, the Depositary, will forward
to the holders of Depositary Shares all reports and communications from the
Company which the Company is required to furnish to the holders of Preferred
Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstances beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Share or Preferred
Stock unless satisfactory indemnity has been furnished. The Company and the
Depositary may rely upon written advice of counsel or accountants, or
information provided by persons presenting Preferred Stock for deposit, holders
of Depositary Shares or other persons believed to be competent and on documents
believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY; TERMINATION OF THE DEPOSIT AGREEMENT
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary will be appointed by the Company within 60 days after delivery of the
notice of resignation or removal. The Deposit Agreement may be terminated at
the direction of the Company or by the Depositary if a period of 90 days shall
have expired after the Depositary has delivered to the Company written notice of
its election to resign and a successor depositary shall not have been
appointed. Upon termination of the Deposit Agreement, the Depositary will
discontinue the transfer of Depositary Receipts, will suspend the
distribution of dividends to the holders thereof, and will not give any
further notices (other than notice of such termination) or perform any
further acts under the Deposit Agreement except that the Depositary will
continue to deliver Preferred Stock certificates, together with such
dividends and distributions and the net proceeds of any sales of rights,
preferences, privileges or other property in exchange for Depositary
Receipts surrendered. Upon request of the Company, the Depositary shall deliver
all books, records, certificates evidencing Preferred Stock, Depositary Receipts
and other documents relating to the subject matter of the Deposit Agreement to
the Company.
DESCRIPTION OF CLASS A COMMON STOCK
If shares of Class A Common Stock are offered, the Prospectus Supplement
relating thereto will set forth the number of shares offered, the public
offering price and information regarding the Company's dividend history and
Class A Common Stock prices as reflected on the Nasdaq National Market,
including a recent reported last sale price of the Class A Common Stock.
The authorized capital stock of the Company consists of 81,000,000 shares,
of which 60,000,000 shares are Class A Common Stock, par value $.01 per share,
20,000,000 shares are Class B Common Stock, par value $.01 per share and
1,000,000 shares are Preferred Stock, par value $0.01 per share. At August 31,
1997 there were 15,247,910 shares of Class A Common Stock outstanding and held
of record by 1,222 stockholders, 3,330,458 shares of Class B Common Stock
outstanding and held of record by 344 stockholders and no shares of Preferred
Stock issued and outstanding. In addition, at August 31, 1997, options to
purchase an aggregate of 1,539,365 shares of Class A Common Stock were
outstanding. All shares of Class A Common Stock and Class B Common Stock
currently outstanding are, and the shares of Class A Common Stock offered hereby
will be, validly issued and fully paid and non-assessable, not subject to
redemption except as hereinafter described and without preemptive or other
rights to subscribe for or purchase any proportionate part of any new or
additional issues of stock of any class or of securities convertible into stock
of any class.
The following description of the Class A Common Stock of the Company and
certain provisions of the Company's Restated Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), and the Company's By-Laws (the
"By-Laws") is a summary which does not purport to be complete and is qualified
in its entirety by reference to the Delaware General Corporate Law and the
provisions of the Certificate of Incorporation or By-Laws.
GENERAL
The rights of holders of Class A Common Stock and Class B Common Stock are
identical except for voting, dividends and conversion rights.
VOTING
The holders of Class A Common Stock are entitled to one vote per share and
the holders of Class B Common Stock are entitled to ten votes per share.
Holders of Class A Common Stock, voting as a class, are entitled to elect at
least one-fourth of the members of the Board of Directors to be elected at a
meeting of stockholders, and the holders of Class B Common Stock, voting as a
class, are entitled to elect the remaining directors. If the number of
outstanding shares of Class B Common Stock is less than 12-1/2% of the aggregate
number of outstanding shares of Class A Common Stock and Class B Common Stock,
the holders of Class A Common Stock shall become entitled to elect at least one-
fourth of the directors voting as a class and to elect the remaining directors
voting together as a single class with holders of Class B Common Stock, provided
that the holders of Class A Common Stock shall have one vote per share and the
holders of Class B Common Stock shall have 10 votes per share. On all other
matters submitted to a vote of the stockholders, the holders of Class A Common
Stock and Class B Common Stock vote together as a single class, except where a
separate class vote is required under Delaware law.
DIVIDENDS
If the Company pays a cash dividend on Class B Common Stock, each share of
Class A Common Stock will receive an amount at least 10% greater than the amount
of the cash dividend per share paid on Class B Common Stock. In addition, the
Board of Directors may declare and pay a dividend on Class A Common Stock
without paying any dividend on Class B Common Stock. The indentures for the
Company's outstanding senior subordinated notes and the Company's
existing bank credit facility restrict the payment of
dividends. In addition, any supplemental indentures for the Debt Securities
may restrict or prohibit the payment of dividends.
CONVERSION
Each share of Class B Common Stock is convertible into one fully paid and
non-assessable share of Class A Common Stock at the option of the holder at any
time. The shares of Class A Common Stock are not convertible into or
exchangeable for shares of Class B Common Stock or any other securities of the
Company.
OTHER PROVISIONS
The holders of Class A Common Stock and Class B Common Stock are entitled
to share pro rata in the distribution of the Company's assets available for such
purpose in the event of liquidation, dissolution or winding up of the Company,
after payment of, or provision for, creditors and distribution of, or provision
for, preferential amounts and unpaid accumulated dividends to holders of
Preferred Stock, if any. Holders of Class A Common Stock and Class B Common
Stock have no preemptive rights to subscribe to any additional securities of any
class which the Company may issue, and there are no redemption provisions or
sinking fund provisions applicable to any such classes, nor is the Class A
Common Stock and Class B Common Stock subject to calls or assessments by the
Company.
CERTAIN STATUTORY PROVISIONS
The Company is subject to Section 203 of the Delaware General Corporation
Law ("Section 203"). Section 203 prohibits a publicly-held Delaware corporation
from engaging in any "business combination" with any "interested stockholder"
for a period of three years following the time that such person became an
interested stockholder, unless (i) prior to the time of the business
combination, the transaction is approved by the board of directors of the
corporation, (ii) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owns
at least 85% of the outstanding voting stock or (iii) at or subsequent to such
time the business combination is approved by the board of directors and
authorized at a meeting of the Company's stockholders by the affirmative vote of
at least 66 % of the outstanding voting stock that is not owned by the
interested stockholder. For purposes of Section 203, a "business combination"
includes a merger, assets sale or other transaction resulting in a financial
benefit to the interested stockholder, and an "interested stockholder" is a
person who, together with affiliates and associates, owns (or within three
years, did own) 15% or more of the corporation's voting stock.
PLAN OF DISTRIBUTION
The Company may sell Securities on a negotiated or competitive bid basis to
or through one or more underwriters or dealers, and also may sell Securities
directly to institutional investors or other purchasers or through agents. Any
such underwriter, dealer or agent involved in the offer and sale of Securities,
and any applicable commissions, discounts and other items constituting
compensation to such underwriters, dealers or agents, will be set forth in the
Prospectus Supplement.
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
Unless otherwise indicated in a Prospectus Supplement, the obligations of
any underwriters to purchase Securities will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all of the
applicable Securities if any are purchased. If a dealer is utilized in the
sale, the Company may sell the Securities to the dealer as principal. The
dealer may then resell the Securities to the public at varying prices to be
determined by such dealer at the time of resale.
Offers to purchase Securities may be solicited by the Company or agents
designated by the Company from time to time. Unless otherwise indicated in a
Prospectus Supplement, any such agent will be acting on a best efforts basis for
the period of its appointment.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution
of Securities may be deemed to be underwriters as that term is defined in the
Securities Act, and any discounts or commissions received by them from the
Company and any profits on the resale of the Securities by them may be deemed to
be underwriting discounts and commissions under the Securities Act. Any such
underwriter or agent will be identified, and any such compensation received from
the Company will be described, in the related Prospectus Supplement.
Underwriters, dealers and agents may be entitled, under agreements entered into
with the Company, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain specified institutions to
purchase Securities from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Institutions with whom
such contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and other institutions but shall in all cases be subject
to the approval of the Company. Such contracts will be subject only to those
conditions set forth in the Prospectus Supplement and the Prospectus Supplement
will set forth the commission payable for solicitation of such contracts. The
obligations of any purchaser under any such contract will be subject to the
condition that the purchase of the Securities shall not be prohibited at the
time of delivery under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
Certain of the underwriters or agents and their associates may engage in
transactions with and perform services for the Company or its affiliates in the
ordinary course of their respective businesses.
The Securities may or may not be listed on a national securities exchange
or traded in the over-the-counter market (other than the Class A Common Stock,
which is quoted on NASDAQ). No assurance can be given as to the liquidity of
the trading market for any of such Securities.
If underwriters or dealers are used in the sale, until the distribution of
the Securities is completed, rules of the Commission may limit the ability of
any such underwriters and selling group members to bid for and purchase the
Securities. As an exception to these rules, representatives of any underwriters
are permitted to engage in certain transactions that stabilize the price of the
Securities. Such transactions may consist of bids or purchases for the purpose
of pegging, fixing or maintaining the price of the Securities. If the
underwriters create a short position in the Securities in connection with the
offerings, i.e., if they sell more Securities than are set forth on the cover
page of the Prospectus Supplement, the representatives of the underwriters may
reduce that short position by purchasing Securities in the open market. The
representatives of the underwriters may also elect to reduce any short position
by exercising all or part of any over-allotment option described in the
Prospectus Supplement. The representatives of the underwriters may also impose
a penalty bid on certain underwriters and selling group members. This means
that if the representatives purchase Securities in the open market to reduce the
underwriters' short position or to stabilize the price of the Securities, they
may reclaim the amount of the selling concession from the underwriters and
selling group members who sold those shares as part of the offering. In
general, purchases of a security for the purpose of stabilization or to reduce a
short position could cause the price of the security to be higher than it might
be in the absence of such purchases. The imposition of a penalty bid might also
have an effect on the price of the Securities to the extent that it discourages
resales of the Securities. The Company makes no representation or prediction as
to the direction or magnitude of any effect that the transactions described
above may have on the price of the Securities. In addition, the Company makes
no representation that the representatives of any underwriters will engage in
such transactions or that such transactions, once commenced, will not be
discontinued without notice.
LEGAL OPINIONS
The legality of the securities offered hereby will be passed upon for the
Company by McDermott, Will & Emery, Chicago, Illinois.
EXPERTS
The consolidated financial statements of the Company incorporated by
reference in this Prospectus and elsewhere in the Registration Statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
giving said report.
NO DEALER, SALESMAN OR ANY OTHER $300,000,000
PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS OR IN THE
PROSPECTUS SUPPLEMENT. IF GIVEN OR
MADE, SUCH INFORMATION OR CANANDAIGUA BRANDS, INC.
REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE
COMPANY, ANY OF THE GUARANTORS OR BY ANY
UNDERWRITER, DEALER OR AGENT. THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT SECURITIES
SHALL NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY, ANY
OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION WHERE, OR TO ANY PERSON TO
WHOM, IT IS UNLAWFUL TO MAKE AN OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF PROSPECTUS
THIS PROSPECTUS OR THE PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER
SHALL, AT ANY TIME OR UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION
THAT THERE HAS NOT BEEN A CHANGE IN THE
FACTS SET FORTH IN THIS PROSPECTUS OR IN
THE AFFAIRS OF THE COMPANY SINCE THE
DATE HEREOF.
TABLE OF CONTENTS
PAGE
Available Information . . . . . . . 2
Incorporation of Certain Documents
by Reference . . . . . . . . . . 2 __________ __, 1997
The Company . . . . . . . . . . . . 4
The Guarantors . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . 4
Use of Proceeds . . . . . . . . . . 6
Dividend Policy . . . . . . . . . . 7
Ratio of Earnings to Fixed Charges 7
Description of Debt Securities . . 8
Description of Preferred Stock . . 13
Description of Depositary Shares . 14
Description of Class A Common Stock 16
Plan of Distribution . . . . . . . 17
Legal Opinions . . . . . . . . . . 19
Experts . . . . . . . . . . . . . . 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated fees and expenses payable by
the Company in connection with the issuance and distribution of the Securities
being registered:
SEC registration fee . . . . . . . . . . . $ 90,910
Printing expenses . . . . . . . . . . . . . 75,000
Fees and expenses of counsel . . . . . . . 100,000
Fees and expenses of accountants . . . . . 100,000
Trustees fees and expenses . . . . . . . . 10,000
Rating agency fees . . . . . . . . . . . . 75,000
Blue sky fees and expenses . . . . . . . . 20,000
Miscellaneous . . . . . . . . . . . . . . . 29,090
Total . . . . . . . . . . . . . . . . $500,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law (Section 102) allows a corporation to
eliminate the personal liability of directors of a corporation to the
corporation or to any of its stockholders for monetary damage for a breach of
his/her fiduciary duty as a director, except in the case where the director
breached his/her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit. The Certificate of Incorporation
contains a provision which eliminates directors' personal liability as set forth
above.
The Delaware General Corporation Law (Section 145) gives Delaware
corporations broad powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses incurred in the
defense of any lawsuit to which they are made parties by reason of being or
having been such directors or officers, subject to specified conditions and
exclusions; gives a director or officer who successfully defends an action the
right to be so indemnified; and authorizes the Company to buy directors' and
officers' liability insurance. Such indemnification is not exclusive of any
other right to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or otherwise.
The Certificate of Incorporation provides for indemnification to the
fullest extent authorized by Section 145 of the Delaware General Corporation Law
for directors, officers and employees of the Company and also to persons who are
serving at the request of the Company as directors, officers or employees of
other corporations (including subsidiaries); provided that, with respect to
proceedings initiated by such indemnitee, indemnification shall be provided only
if such proceedings were authorized by the Board of Directors. This right of
indemnification is not exclusive of any other right which any person may acquire
under any statute, bylaw, agreement, contract, vote of stockholders or
otherwise.
The Company maintains a directors' and officers' liability insurance and
corporate reimbursement policy insuring directors and officers against loss
arising from claims made arising out of the performance of their duties.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- -----------------------------
1 Forms of Underwriting Agreement (to be filed under subsequent
Form 8-K)
3.1 Restated Certificate of Incorporation of the Company (filed as
Exhibit 3.1 to the Company's Transition Report on Form 10-K for
the transition period from September 1, 1995 to February 29,
1996, and incorporated herein by reference)
3.2 Certificate of Amendment of the Certificate of Incorporation of
the Company (filed as Exhibit 3.1(a) to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended August 31,
1997, and incorporated herein by reference)
3.3 Amended and Restated By-laws of the Company (filed as Exhibit 3.2
to the Company's Quarterly Report on Form 10-Q for the quarterly
period ended August 31, 1997, and incorporated herein by
reference)
4 Form of Indenture
* 5 Opinion of McDermott, Will & Emery
* 12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Arthur Andersen LLP
* 23.2 Consent of McDermott, Will & Emery (included as part of Exhibit 5)
* 24 Powers of Attorney (included on signature page of the Registration
Statement)
* 25 Statement of Eligibility of Trustee on Form T-1
___________
* Previously filed.
ITEM 17. UNDERTAKINGS.
1. (a) The undersigned registrants hereby undertake to file, during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that subparagraphs (a)(i) and (a)(ii) do not apply to the
extent that the information required to be included in a post-effective
amendment by those subparagraphs is contained in periodic reports filed with or
furnished to the Commission by the registrants pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in the Registration Statement.
(b) The undersigned registrants hereby undertake that, for the purpose of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) The registrants hereby undertake 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.
2. The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrants' annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in 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.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrants pursuant to the foregoing provisions, or otherwise, the registrants
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrants of expenses
incurred or paid by a director, officer or controlling person of the registrants
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 registrants 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 the
registrants is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
4. The undersigned registrants hereby undertake that for purposes of
determining any liability under the Securities Act, (i) the information omitted
from the form of prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of prospectus filed by the
registrants pursuant to Rule 424(b)(1) or (4) or Rule 497(h) under the
Securities Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective, and (ii) each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
5. The undersigned registrants hereby undertake to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
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 Canandaigua, State of New York on
December 17 , 1997.
Canandaigua Brands, Inc.
By /s/ RICHARD SANDS
Richard Sands
President and Chief Executive Officer
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.
Signature Title Date
* Chairman of the Board December 17 , 1997
Marvin Sands of Directors
/s/ RICHARD SANDS President, Chief December 17 , 1997
Richard Sands Executive Officer and
a Director (Principal
Executive Officer)
* Executive Vice December 17 , 1997
Robert Sands President, General
Counsel, Secretary and
a Director
* Director December 17 , 1997
Bertram E. Silk
* Director December 17 , 1997
James A. Locke, III
* Director December 17 , 1997
George Bresler
* Senior Vice President December 17 , 1997
Thomas S. Summer and Chief Financial
Officer (Principal
Financial Officer and
Principal Accounting
Officer)
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Canandaigua, State of New York on
December 17 , 1997.
Batavia Wine Cellars, Inc.
By /s/ NED COOPER
Ned Cooper, President
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.
Signature Title Date
/s/ RICHARD SANDS Vice President and a December 17 , 1997
Richard Sands Director
* Secretary and a December 17 , 1997
Robert Sands Director
/s/ NED COOPER President (Principal December 17 , 1997
Ned Cooper Executive Officer)
* Treasurer (Principal December 17 , 1997
Thomas S. Summer Financial Officer and
Principal Accounting
Officer)
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Chicago, State of Illinois on
December 17 , 1997.
Barton Incorporated
By /s/ ALEXANDER L. BERK
Alexander L. Berk, President
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.
Signature Title Date
* Chairman of the Board December 17 , 1997
Ellis M. Goodman of Directors and Chief
Executive Officer
(Principal Executive
Officer)
/s/ ALEXANDER L. BERK President and a December 17 , 1997
Alexander L. Berk Director
* Vice President and a December 17 , 1997
Edward L. Golden Director
* Executive Vice December 17 , 1997
Raymond E. Powers President, Treasurer,
Assistant Secretary and
a Director
(Principal Financial
Officer and Principal
Accounting Officer)
* Director December 17 , 1997
William F. Hackett
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Chicago, State of
Illinois on December 17 , 1997.
Barton Brands, Ltd.
By /s/ ALEXANDER L. BERK
Alexander L. Berk, Executive Vice President
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.
Signature Title Date
* Chairman of the Board December 17 , 1997
Ellis M. Goodman of Directors (Principal
Executive Officer)
* President and a December 17 , 1997
Edward L. Golden Director
* Executive Vice December 17 , 1997
Raymond E. Powers President, Treasurer
and Assistant Secretary
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ ALEXANDER L. BERK Executive Vice December 17 , 1997
Alexander L. Berk President and a
Director
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Chicago, State of Illinois on
December 17 , 1997.
Barton Beers, Ltd.
By /s/ ALEXANDER L. BERK
Alexander L. Berk, Executive Vice President
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.
Signature Title Date
* Chairman of the Board December 17 , 1997
Ellis M. Goodman of Directors (Principal
Executive Officer)
* Executive Vice December 17 , 1997
Raymond E. Powers President, Treasurer
and Assistant Secretary
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ ALEXANDER L. BERK Executive Vice December 17 , 1997
Alexander L. Berk President and a
Director
* President and a December 17 , 1997
William F. Hackett Director
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Chicago, State of Illinois on
December 17 , 1997.
Barton Brands of California, Inc.
By /s/ ALEXANDER L. BERK
Alexander L. Berk, Executive Vice President
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.
Signature Title Date
* President and a December 17 , 1997
Ellis M. Goodman Director
(Principal Executive
Officer)
* Vice President and a December 17 , 1997
Edward L. Golden Director
/s/ ALEXANDER L. BERK Executive Vice December 17 , 1997
Alexander L. Berk President and a
Director
* Executive Vice December 17 , 1997
Raymond E. Powers President, Treasurer,
Assistant Secretary and
a Director (Principal
Financial Officer and
Principal Accounting
Officer)
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Chicago, State of Illinois on
December 17 , 1997.
Barton Brands of Georgia, Inc.
By /s/ ALEXANDER L. BERK
Alexander L. Berk, Executive Vice President
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.
Signature Title Date
* President and a December 17 , 1997
Ellis M. Goodman Director
(Principal Executive
Officer)
* Vice President and a December 17 , 1997
Edward L. Golden Director
/s/ ALEXANDER L. BERK Executive Vice December 17 , 1997
Alexander L. Berk President and a
Director
* Executive Vice December 17 , 1997
Raymond E. Powers President, Treasurer
and Assistant Secretary
(Principal Financial
Officer and Principal
Accounting Officer)
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Chicago, State of Illinois on
December 17 , 1997.
Barton Distillers Import Corp.
By /s/ ALEXANDER L. BERK
Alexander L. Berk, Executive Vice President
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.
Signature Title Date
* President and a December 17 , 1997
Ellis M. Goodman Director
(Principal Executive
Officer)
/s/ ALEXANDER L. BERK Executive Vice December 17 , 1997
Alexander L. Berk President and a
Director
* Executive Vice December 17 , 1997
Raymond E. Powers President, Treasurer,
Assistant Secretary and
a Director
(Principal Financial
Officer and Principal
Accounting Officer)
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Chicago, State of Illinois on
December 17 , 1997.
Barton Financial Corporation
By /s/ CHARLES T. SCHLAU
Charles T. Schlau, Treasurer
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.
Signature Title Date
* President, Secretary December 17 , 1997
Raymond E. Powers and a Director
(Principal Executive
Officer)
/s/ CHARLES T. SCHLAU Treasurer and a December 17 , 1997
Charles T. Schlau Director
(Principal Financial
Officer and Principal
Accounting Officer)
* Director December 17 , 1997
Charles B. Campbell, Jr.
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Chicago, State of Illinois on
December 17 , 1997.
Stevens Point Beverage Co.
By /s/ ALEXANDER L. BERK
Alexander L. Berk, Executive Vice President
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.
Signature Title Date
* Chairman of the Board December 17 , 1997
Ellis M. Goodman of Directors
* Chief Executive December 17 , 1997
James P. Ryan Officer, President and
a Director (Principal
Executive Officer)
/s/ ALEXANDER L. BERK Executive Vice December 17 , 1997
Alexander L. Berk President and a
Director
* Executive Vice December 17 , 1997
Raymond E. Powers President, Treasurer,
Assistant Secretary and
a Director
(Principal Financial
Officer and Principal
Accounting Officer)
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Chicago, State of Illinois on
December 17 , 1997.
Monarch Import Company
By /s/ ALEXANDER L. BERK
Alexander L. Berk, Executive Vice President
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.
Signature Title Date
* President and Chairman December 17 , 1997
Ellis M. Goodman of the Board of
Directors (Principal
Executive Officer)
/s/ ALEXANDER L. BERK Executive Vice December 17 , 1997
Alexander L. Berk President and a
Director
* Executive Vice December 17 , 1997
Raymond E. Powers President, Treasurer
Assistant Secretary and
a Director (Principal
Financial Officer and
Principal Accounting
Officer)
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Canandaigua, State of New York on
December 17 , 1997.
Canandaigua Wine Company, Inc.
By /s/ RICHARD SANDS
Richard Sands, Vice President
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.
Signature Title Date
/s/ RICHARD SANDS Vice President and a December 17 , 1997
Richard Sands Director
* Vice President, December 17 , 1997
Robert Sands Secretary and a
Director
* Treasurer (Principal December 17 , 1997
Thomas S. Summer Financial Officer and
Principal Accounting
Officer)
* President (Principal December 17 , 1997
Daniel C. Barnett Executive Officer)
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Chicago, State of Illinois on
December 17 , 1997.
The Viking Distillery, Inc.
By /s/ ALEXANDER L. BERK
Alexander L. Berk, Executive Vice President
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.
Signature Title Date
* President and a December 17 , 1997
Ellis M. Goodman Director
(Principal Executive
Officer)
/s/ ALEXANDER L. BERK Executive Vice December 17 , 1997
Alexander L. Berk President and a
Director
* Vice President and a December 17 , 1997
Edward L. Golden Director
* Executive Vice December 17 , 1997
Raymond E. Powers President, Treasurer,
Assistant Secretary
(Principal Financial
Officer and Principal
Accounting Officer)
*By: /s/ RICHARD SANDS
Richard Sands
Attorney-in-Fact
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 Canandaigua, State of New York on
December 17, 1997.
Canandaigua Europe Limited
By /s/ DOUGLAS KAHLE
Douglas Kahle, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard Sands and Robert Sands and each of them,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities (including his capacity as a director and/or officer of
Canandaigua Europe Limited) to sign any or all amendments (including post-
effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Amendment No. 1 to the 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, and each of them, 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 to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his 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.
Signature Title Date
/s/ DOUGLAS KAHLE President (Principal December 17, 1997
Douglas Kahle Executive Officer)
/s/ RICHARD SANDS Vice President and a December 17, 1997
Richard Sands Director
/s/ THOMAS S. SUMMER Treasurer (Principal December 17, 1997
Thomas S. Summer Financial Officer and
Principal Accounting
Officer)
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 Canandaigua, State of New York on
December 17, 1997.
Roberts Trading Corp.
By /s/ DANIEL C. BARNETT
Daniel C. Barnett, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard Sands and Robert Sands and each of them,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities (including his capacity as a director and/or officer of
Roberts Trading Corp.) to sign any or all amendments (including post-effective
amendments and any registration statement filed pursuant to Rule 462(b)) to this
Amendment No. 1 to the 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, and each of them, 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 to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his 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.
Signature Title Date
/s/ RICHARD SANDS Vice President and a December 17, 1997
Richard Sands Director
/s/ ROBERT SANDS Vice President, December 17, 1997
Robert Sands Secretary and a
Director
/s/ DANIEL C. BARNETT President (Principal December 17, 1997
Daniel C. Barnett Executive Officer)
/s/ THOMAS S. SUMMER Treasurer (Principal December 17, 1997
Thomas S. Summer Financial Officer and
Principal Accounting
Officer)
Exhibit 4
CANANDAIGUA BRANDS, INC., as Issuer,
and its subsidiary guarantors
Batavia Wine Cellars, Inc.
Barton Incorporated
Barton Brands, Ltd.
Barton Beers, Ltd.
Barton Brands of California, Inc.
Barton Brands of Georgia, Inc.
Barton Distillers Import Corp.
Barton Financial Corporation
Stevens Point Beverage Co.
Monarch Import Company
Canandaigua Wine Company, Inc.
The Viking Distillery, Inc.
Canandaigua Europe Limited
Roberts Trading Corp., as Guarantors
AND
HARRIS TRUST AND SAVINGS BANK, as Trustee
___________________
INDENTURE
Dated as of _____________, ____
___________________
CANANDAIGUA BRANDS, INC.
Reconciliation and Tie between Indenture
and
Trust Indenture Act of 1939
Trust Indenture Indenture
Act Section Section
310 (a)(1)11.5
(a)(2) . . . . . . . . . . . . . . . . . 11.5
(a)(3) . . . . . . . . . . . . . . . . . Not applicable
(a)(4) . . . . . . . . . . . . . . . . . Not applicable
(b) . . . . . . . . . . . . . . . . . . . 11.4, 11.5
311 . . . . . . . . . . . . . . . . . . . (a) 11.9(a), (c)
(b) . . . . . . . . . . . . . . . . . . . 11.9(b), (c)
312 . . . . . . . . . . . . . . . . . . . (a) 4.6(d), 11.1
(b) . . . . . . . . . . . . . . . . . . . 11.11
(c) . . . . . . . . . . . . . . . . . . . 11.11
313 . . . . . . . . . . . . . . . . . . . (a) 11.10(a)
(b)(i) . . . . . . . . . . . . . . . . . Not applicable
(b)(2) . . . . . . . . . . . . . . . . . 11.10(b)
(c) . . . . . . . . . . . . . . . . . . . 11.10(c)
(d) . . . . . . . . . . . . . . . . . . . 11.10(c)
314 . . . . . . . . . . . . . . . . . . (a)(1) 4.6(a)
(a)(2) . . . . . . . . . . . . . . . . . 4.6(b)
(a)(3) . . . . . . . . . . . . . . . . . 4.6(c)
(b) . . . . . . . . . . . . . . . . . . . Not applicable
(c) . . . . . . . . . . . . . . . . . . . 3.8
(d) . . . . . . . . . . . . . . . . . . . Not applicable
(e) . . . . . . . . . . . . . . . . . . . 3.8
315 . . . . . . . . . . . . . . . . . . . (a) 11.1(a), (b)
(b) . . . . . . . . . . . . . . . . . . . 11.3
(c) . . . . . . . . . . . . . . . . . . . 11.1(a)
(d) . . . . . . . . . . . . . . . . . . . 11.1(a), 11.1(b), 13.3
(e) . . . . . . . . . . . . . . . . . . . 7.7
316 . . . . . . . . . . . . . . . . (a)(1)(A) 7.6, 13.3
(a)(1)(B) . . . . . . . . . . . . . . . . 7.1, 7.5, 13.3
(a)(2) . . . . . . . . . . . . . . . . . Not required
(b) . . . . . . . . . . . . . . . . . . . 7.7
317 . . . . . . . . . . . . . . . . . . . (a) 7.2
(b) . . . . . . . . . . . . . . . . . . . 4.8
318 . . . . . . . . . . . . . . . . . . . (a) 3.4
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
CANANDAIGUA BRANDS, INC.
INDENTURE
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; TRUST INDENTURE ACT CONTROLLING
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Trust Indenture Act definitions controlling . . . . . 7
ARTICLE II
FORM, ISSUE AND REGISTRATION OF DEBT SECURITIES
SECTION 2.1. Forms generally and dating . . . . . . . . . . . . . 8
SECTION 2.2. Amount unlimited; Issuable in series . . . . . . . . 9
SECTION 2.3. Denominations . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.4. Execution of Debt Securities; Authentication . . . . 13
SECTION 2.5. Issue of Debt Securities . . . . . . . . . . . . . . 16
SECTION 2.6. Transfer of Debt Securities . . . . . . . . . . . . . 16
SECTION 2.7. Persons deemed owners of Debt Securities . . . . . . 16
SECTION 2.8. Provisions for Debt Securities in temporary form . . 17
SECTION 2.9. Mutilated, destroyed, lost or stolen Debt Securities 17
SECTION 2.10. Exchanges of Debt Securities . . . . . . . . . . . . 18
SECTION 2.11. Cancellation of surrendered Debt Securities . . . . . 18
SECTION 2.12. Payment of interest; Defaulted interest . . . . . . . 19
SECTION 2.13. Global Securities; Depositary . . . . . . . . . . . . 19
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. Rights under Indenture limited to the parties and
holders of Debt Securities . . . . . . . . . . . . . 21
SECTION 3.2. Certificate of independent accountants conclusive . . 21
SECTION 3.3. Treatment of Debt Securities owned or held by the
Company in determining required percentages . . . . . 21
SECTION 3.4. Remaining provisions not affected by invalidity of
any other provisions - required provisions of Trust
Indenture Act of 1939 to control . . . . . . . . . . 22
SECTION 3.5. Company released from Indenture requirements if
entitled to have Indenture cancelled . . . . . . . . 22
SECTION 3.6. Date of execution . . . . . . . . . . . . . . . . . . 22
SECTION 3.7. Execution of documents furnished under the Indenture 23
SECTION 3.8. Officers' Certificate and Opinions of Counsel to be
furnished to Trustee . . . . . . . . . . . . . . . . 23
SECTION 3.9. Presentation of notices and demands . . . . . . . . . 24
SECTION 3.10. Successors and assigns bound by Indenture . . . . . . 24
SECTION 3.11. Descriptive headings for convenience only . . . . . . 24
SECTION 3.12. New York law to govern . . . . . . . . . . . . . . . 24
SECTION 3.13. Indenture may be executed in counterparts . . . . . . 25
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Principal and interest . . . . . . . . . . 25
SECTION 4.2. Maintenance of office or agency . . . . . . . . . . . 25
SECTION 4.3. Corporate existence . . . . . . . . . . . . . . . . . 25
SECTION 4.4. Restrictions on mergers, sales and consolidations . . 26
SECTION 4.5. Further assurances . . . . . . . . . . . . . . . . . 26
SECTION 4.6. File certain reports and information with the
Trustee and the Securities and Exchange Commission -
transmit to holders of Debt Securities summaries of
certain documents filed with the Trustee - furnish
list of holders of Debt Securities to the Trustee . . 26
SECTION 4.7. File statement by officers annually with the Trustee 27
SECTION 4.8. Duties of Paying Agent . . . . . . . . . . . . . . . 27
ARTICLE V
REDEMPTION OF DEBT SECURITIES; SINKING FUND
SECTION 5.1. Applicability of Article . . . . . . . . . . . . . . 29
SECTION 5.2. Notice of redemption to be given to Trustee -
deposit of cash (or other form of payment) with
Trustee - selection by Trustee of Debt Securities to
be redeemed . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.3. Debt Securities called for redemption to become due
- rights of holders of redeemed Debt Securities -
return of funds on conversion . . . . . . . . . . . . 30
SECTION 5.4. Credits against sinking fund . . . . . . . . . . . . 31
SECTION 5.5. Redemption through sinking fund . . . . . . . . . . . 31
SECTION 5.6. Debt Securities no longer Outstanding after notice
to Trustee and deposit of cash . . . . . . . . . . . 33
SECTION 5.7. Conversion arrangement on call for redemption . . . . 33
ARTICLE VI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 6.1. Satisfaction and discharge of Indenture with respect
to Debt Securities of any series . . . . . . . . . . 34
SECTION 6.2. Deposits for payment or redemption of Debt
Securities to be held in trust . . . . . . . . . . . 35
SECTION 6.3. Repayment of moneys . . . . . . . . . . . . . . . . . 35
ARTICLE VII
REMEDIES UPON DEFAULT
SECTION 7.1. Events of Default defined -- acceleration of
maturity upon default -- waiver of default after
acceleration . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.2. Covenant of Company to pay to Trustee whole amount
due on default in payment of Principal or interest -
Trustee may recover judgment for whole amount due -
application of moneys received by the Trustee . . . . 39
SECTION 7.3. Trustee may enforce rights of action without
possession of Debt Securities . . . . . . . . . . . . 41
SECTION 7.4. Delays or omissions not to impair any rights or
powers accruing upon default . . . . . . . . . . . . 41
SECTION 7.5. In Event of Default Trustee may protect and enforce
its rights by appropriate proceedings - holders of
majority in aggregate Principal amount of Debt
Securities of a series may waive default . . . . . . 41
SECTION 7.6. holders of majority in aggregate principal amount of
Debt Securities of any series may direct exercise of
remedies . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.7. Limitation on suits by holders of Debt Securities . . 42
SECTION 7.8. No Debt Securities owned or held by, for the account
of or for the benefit of the Company to be deemed
Outstanding for purpose of payment or distribution . 43
SECTION 7.9. Company and Trustee restored to former position on
discontinuance or abandonment of proceedings . . . . 43
ARTICLE VIII
EVIDENCE OF ACTION BY HOLDERS OF DEBT SECURITIES
SECTION 8.1. Evidence of action by holders of Debt Securities . . 44
ARTICLE IX
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 9.1. Immunity of incorporators, stockholders, officers,
directors and employees . . . . . . . . . . . . . . . 45
ARTICLE X
MERGER, CONSOLIDATION, SALE OR LEASE
SECTION 10.1. Documents required to be filed with the Trustee upon
consolidation, merger, sale, transfer or lease -
execution of supplemental indentures - acts of
successor corporation . . . . . . . . . . . . . . . . 45
SECTION 10.2. Trustee may rely upon Opinion of Counsel . . . . . . 46
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.1. Acceptance of Trust - responsibilities of Trustee . . 47
SECTION 11.2. Trustee to be entitled to compensation - Trustee not
to be accountable for application of proceeds -
moneys held by Trustee to be trust funds . . . . . . 50
SECTION 11.3. Trustee to give holders of Debt Securities notice of
default . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 11.4. Trustee acquiring conflicting interest must
eliminate it or resign . . . . . . . . . . . . . . . 51
SECTION 11.5. Eligibility of Trustee . . . . . . . . . . . . . . . 51
SECTION 11.6. Resignation or removal of Trustee . . . . . . . . . . 51
SECTION 11.7. Acceptance by successor Trustee . . . . . . . . . . . 53
SECTION 11.8. Successor to Trustee by merger or consolidation,
etc. . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11.9. Limitations on right of Trustee as a creditor to
obtain payment of certain claims . . . . . . . . . . 54
SECTION 11.10. Trustee to make annual report to holders of Debt
Securities - Trustee to make other reports to
holders of Debt Securities - holders of Debt
Securities to whom reports to be transmitted . . . . 55
SECTION 11.11. Preservation of information by Trustee - Trustee to
give certain information to holders of Debt
Securities upon application . . . . . . . . . . . . . 56
SECTION 11.12. Trustee may hold Debt Securities and otherwise deal
with Company . . . . . . . . . . . . . . . . . . . . 57
SECTION 11.13. Trustee may comply with any rule, regulation or
order of the Securities and Exchange Commission . . . 57
SECTION 11.14. Appointment of Authenticating Agent . . . . . . . . . 57
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.1. Company and Trustee may enter into supplemental
indenture for special purposes . . . . . . . . . . . 59
SECTION 12.2. Modification of Indenture with consent of holders of
Debt Securities . . . . . . . . . . . . . . . . . . . 61
SECTION 12.3. Effect of supplemental indentures . . . . . . . . . . 62
SECTION 12.4. Supplemental indentures to conform to Trust
Indenture Act . . . . . . . . . . . . . . . . . . . . 62
SECTION 12.5. Notation on or exchange of Debt Securities . . . . . 62
ARTICLE XIII
CONVERSION OF DEBT SECURITIES
SECTION 13.1. Applicability of Article . . . . . . . . . . . . . . 63
SECTION 13.2. Right of holders of Debt Securities to convert Debt
Securities . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.3. Issuance of shares of Capital Stock on conversion . . 64
SECTION 13.4. No payment or adjustment for interest or dividends . 65
SECTION 13.5. Adjustment of conversion rate . . . . . . . . . . . . 65
SECTION 13.6. No fractional shares to be issued . . . . . . . . . . 69
SECTION 13.7. Preservation of conversion rights upon
consolidation, merger, sale or conveyance . . . . . . 69
SECTION 13.8. Notice to holders of Debt Securities of a series
prior to taking certain types of action . . . . . . . 70
SECTION 13.9. Covenant to reserve shares for issuance on
conversion of Debt Securities . . . . . . . . . . . . 71
SECTION 13.10. Compliance with governmental requirements . . . . . . 71
SECTION 13.11. Payment of taxes upon certificates for shares issued
upon conversion . . . . . . . . . . . . . . . . . . . 71
SECTION 13.12. Trustee's duties with respect to conversion
provisions . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE XIV
GUARANTEES
SECTION 14.1. Guarantee . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 14.2. Obligations of the Guarantors Unconditional . . . . . 73
SECTION 14.3. Execution of Guarantee . . . . . . . . . . . . . . . 73
SECTION 14.4. Withholding . . . . . . . . . . . . . . . . . . . . . 74
SECTION 14.5. Limitation of Guarantee . . . . . . . . . . . . . . . 75
SECTION 14.6. Release of Guarantee . . . . . . . . . . . . . . . . 75
INDENTURE dated as of the _____ day of ________________,
____ , among CANANDAIGUA BRANDS, INC., a Delaware corporation
(hereinafter called the "COMPANY"), the wholly-owned subsidiaries of
the Company set forth on the signature page hereto (such wholly-owned
subsidiaries then-existing and, as applicable, any successor who
replaces such subsidiary pursuant to the applicable provisions of this
Indenture and, thereafter, such successor, all together the "GUARANTORS")
and HARRIS TRUST AND SAVINGS BANK, an Illinois banking corporation with
its principal offices in Chicago, Illinois, as Trustee hereunder
(hereinafter called the "TRUSTEE");
WHEREAS, the Company for its lawful corporate purposes has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its debentures, notes or other evidences of
indebtedness (hereinafter called the "DEBT SECURITIES"), to be issued in one
or more series as herein provided; and
WHEREAS, each Guarantor has duly authorized the issuance of a guarantee
of the Debt Securities, of substantially the tenor set forth herein, and to
provide therefor each Guarantor has duly authorized the execution and
delivery of this Indenture and such Guarantee (as hereinafter defined).
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
THAT, in consideration of the premises and of the mutual covenants
herein contained and of the purchase and acceptance of the Debt Securities by
the holders thereof, and for other valuable consideration the receipt whereof
is hereby acknowledged, and intending to be legally bound hereby, it is
hereby agreed among the Company, the Guarantors and the Trustee, for the
benefit of those who shall hold the Debt Securities, as follows:
ARTICLE I
DEFINITIONS; TRUST INDENTURE ACT CONTROLLING
SECTION 1.1. Definitions. Unless otherwise specified or the context
otherwise requires, the terms defined in this Article I shall for all
purposes of this Indenture and of any indenture supplemental hereto have the
meanings herein specified, the following definitions to be equally applicable
to both the singular and plural forms of any of the terms herein defined.
All accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting principles in the
United States of America, and 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.
Additional Amounts
The term "ADDITIONAL AMOUNTS" has the meaning specified in Section 14.4.
Affiliate
An "AFFILIATE" shall mean any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company
or any other obligor under this Indenture.
Authenticating Agent
The term "AUTHENTICATING AGENT" means any Person authorized by the
Trustee pursuant to Section 11.14 to act on behalf of the Trustee to
authenticate Debt Securities of one or more series.
Authorized Newspaper
The term "AUTHORIZED NEWSPAPER" shall mean a newspaper in the English
language or in an official language of the country of publication,
customarily printed on each Business day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of such
place. If, because of temporary suspension of publication or general
circulation of any newspaper or for any other reason, it is impossible or, in
the opinion of the Trustee, impracticable to make any publication of any
notice required by this Indenture in the manner herein provided, such
publication or other notice in lieu thereof which is made at the written
direction of the Company by the Trustee shall constitute a sufficient
publication of such notice. 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 place meeting the foregoing
requirements and in each case on any Business day.
Bankruptcy Law
The term "BANKRUPTCY LAW" means Title 11 of the United States Code, as
now constituted or hereafter in effect, or any other applicable Federal or
State bankruptcy, insolvency or other similar law.
Board; Board of Directors
The term "BOARD" or "BOARD OF DIRECTORS" shall mean the Board of
Directors of the Company or the Executive Committee, if any, of such Board or
any other committee of such Board duly authorized to act hereunder.
Business day
The term "BUSINESS DAY" shall mean, with respect to any series of Debt
Securities, a day that, in the city (or in any of the cities, if more than
one) in which amounts are payable, as specified in the terms of such Debt
Securities, is not a day upon which banking institutions are authorized or
required by law, or by executive order issued by a governmental authority or
agency regulating such banking institutions, to close.
Capital Stock
The term "CAPITAL STOCK" shall mean stock of any class of the Company.
Certified Resolution
The term "CERTIFIED RESOLUTION" shall mean 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.
Class A Common Stock
The term "CLASS A COMMON STOCK" shall mean the Class A Common Stock, par
value $.01 per share, of the Company.
Closing Price
The term "CLOSING PRICE" on any day when used with respect to any class
of Capital Stock shall mean (i) if the stock is then listed or admitted to
trading on a national securities exchange in the United States, the last
reported sale price, regular way, for the stock as reported in the con-
solidated transaction or other reporting system for securities listed or
traded on such exchange, or (ii) if the stock is listed on the National
Association of Securities Dealers, Inc. Automated Quotations System National
Market System (the "NASDAQ NATIONAL MARKET SYSTEM"), the last reported sale
price, regular way, for the stock, as reported on such list, or (iii) if the
stock is not so admitted for trading on any national securities exchange or
the Nasdaq National Market System, the average of the last reported closing
bid and asked prices reported by the National Association of Securities
Dealers, Inc. Automated Quotations System as furnished by any member in good
standing of the National Association of Securities Dealers, Inc., selected
from time to time by the Company for that purpose or as quoted by the
National Quotation Bureau Incorporated. In the event that no such quotation
is available for any day, the Board of Directors shall be entitled to
determine the current market price on the basis of such quotations as it
considers appropriate.
Code
The term "THE CODE" means the Internal Revenue Code of 1986, as amended.
Company
The term "COMPANY" shall mean Canandaigua Brands, Inc., a Delaware
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
Company Order
The term "COMPANY ORDER" means a written order signed in the name of the
Company by its Chairman of the Board, President or any Vice President
(regardless of Vice Presidential designation), and by its Chief Financial
Officer, Treasurer, any Assistant Treasurer, Secretary or any Assistant
Secretary and delivered to the Trustee.
Debt Security
The term "DEBT SECURITY" shall mean one of the debentures, notes or
other evidences of indebtedness that are issued from time to time in one or
more series under this Indenture and, more particularly, any series of Debt
Securities authenticated and delivered under this Indenture.
holder of Debt Securities;
The term "HOLDER OF DEBT SECURITIES" or other similar term shall mean
any person who shall at the time be the registered holder of any Debt
Security or Debt Securities as shown by the register or registers kept by the
Company or its agent for that purpose in accordance with the terms of this
Indenture.
Depositary
The term "DEPOSITARY" has the meaning specified in Section 2.13.
Event of Default
The term "EVENT OF DEFAULT" shall mean an event listed in Section 7.1,
continued for the period of time, if any, and after the required notices, if
any, therein designated.
Global Security
The term "GLOBAL SECURITY" has the meaning specified in Section 2.13.
Guaranteed Obligations
The term "GUARANTEED OBLIGATIONS" has the meaning specified in Section
14.1.
Guaranteed Parties
The term "GUARANTEED PARTIES" shall mean all Persons who are now or who
hereafter become holders of Debt Securities and the Trustee.
Guarantees
The term "GUARANTEES" means the guarantee of each of the Guarantors as
set forth in Article XIV hereof, in one or more supplemental indentures
hereto, and any additional guarantee of the Debt Securities executed pursuant
to the terms thereof.
Guarantors
The term "GUARANTORS" shall have the meaning set forth in the Recitals
hereto.
Indenture
The term "INDENTURE" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented and, unless the context otherwise indicates, shall include the
form and terms of each particular series of Debt Securities established as
contemplated hereunder.
Officers' Certificate
The term "OFFICERS' CERTIFICATE" shall mean a certificate signed by the
Chairman of the Board, President or any Vice President (regardless of Vice
Presidential designation), and by its Chief Financial Officer, Treasurer, any
Assistant Treasurer, Secretary or any Assistant Secretary of the Company, in
their capacities as such officers of the Company and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 3.8, if and to the extent required by the provisions thereof.
Opinion of Counsel
The term "OPINION OF COUNSEL" shall mean an opinion in writing signed by
legal counsel (who may be an employee of the Company) acceptable in form and
substance to the Trustee and delivered to the Trustee. Such opinion shall
include the statements provided for in Section 3.8, if and to the extent
required by the provisions thereof.
Original Issue Discount
The term "ORIGINAL ISSUE DISCOUNT" with respect to any debt security,
including an Original Issue Discount Security, has the same meaning as set
forth in Section 1273 of the Code, or any successor provision, and the
applicable Treasury Regulations thereunder.
Original Issue Discount Security
The term "ORIGINAL ISSUE DISCOUNT SECURITY" means any series of a Debt
Security, including a series of a Debt Security that does not provide for the
payment of interest prior to maturity, which is issued at a price lower than
the principal amount thereof and which provides that upon redemption or
acceleration of the stated maturity thereof an amount less than the principal
amount thereof to be due and payable pursuant to Section 7.1.
Outstanding
The term "OUTSTANDING," when used with respect to the Debt Securities,
shall, subject to Section 3.3, mean, as of the date of determination, all
Debt Securities theretofore authenticated and delivered under this Indenture,
except: (a) Debt Securities for the payment or redemption of which cash (or
other form of payment if permitted by the terms of such Debt Securities) in
the necessary amount shall have been deposited in trust with the Trustee or
any paying agent (other than the Company) provided that, if such Debt
Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been duly given or provision satisfactory to the
Trustee shall have been made for giving such notice; (b) Debt Securities
converted into Capital Stock in accordance with Article XIII hereof, if the
terms of such Debt Securities provide for convertibility pursuant to Section
2.2; (c) Debt Securities paid or in lieu of or in substitution for which
other Debt Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9, unless proof satisfactory to the Trustee is
presented that any such Debt Securities are held by persons in whose hands
such Debt Securities are valid, binding and legal obligations; and (d) Debt
Securities which have been cancelled by the Trustee or delivered to the
Trustee or its designee for cancellation.
Paying Agent
The term "PAYING AGENT" shall mean any person authorized by the Company
to pay the principal of, premium, if any, and interest on any Debt
Securities.
Person
The term "PERSON" shall mean an individual, a corporation, a limited
liability company, a partnership, an association, a joint-stock company, a
trust, any unincorporated organization, or a government or political
subdivision thereof.
Preferred Stock
The term "PREFERRED STOCK" shall mean the Preferred Stock, par value
$.01 per share, of the Company.
Principal
The term "PRINCIPAL" of a debt security, including any series of Debt
Securities, on any day and for any purpose means the amount (including,
without limitation, in the case of an Original Issue Discount Security, any
accrued original issue discount, but excluding interest) that is payable with
respect to such debt security as of such date and for such purpose (in-
cluding, without limitation, in connection with any sinking fund, upon any
redemption at the option of the Company upon any purchase or exchange at the
option of the Company or the holder of such debt security and upon any
acceleration of the maturity of such debt security).
Principal amount
The term "PRINCIPAL AMOUNT" of a debt security, including any series of
Debt Securities, means the principal amount as set forth on the face of such
debt security.
Responsible Officer
The term "RESPONSIBLE OFFICER", when used with respect to the Trustee,
shall mean any officer of the Trustee assigned by the Trustee to administer
its corporate trust matters.
Securities Exchange Act
The term "SECURITIES EXCHANGE ACT" shall mean the Securities Exchange
Act of 1934, as amended.
Significant Subsidiary
The term "SIGNIFICANT SUBSIDIARY" shall mean any subsidiary (i) whose
revenues exceed 10% of the total revenues of the Company, in each case for
the most recent fiscal year, or (ii) whose net worth exceeds 10% of the total
stockholders' equity of the Company, in each case as of the end of the most
recent fiscal years.
Trustee; corporate principal office
The term "TRUSTEE" shall mean the trustee or trustees hereunder for the
time being, whether original or successor. "TRUSTEE" as used with respect to
the Debt Securities of any series shall mean the Trustee with respect to Debt
Securities of such series. The term "PRINCIPAL OFFICE" of the Trustee shall
mean the principal office of the Trustee at which, at any particular time,
the corporate trust business of the Trustee shall be administered, which
office as of the date hereof is at 311 West Monroe Street, 12th Floor,
Chicago, Illinois 60606.
U.S. Government Obligations
The term "U.S. GOVERNMENT OBLIGATIONS" means direct obligations of, or
obligations entitled to the full faith and credit of, the United States of
America.
SECTION 1.2. Trust Indenture Act definitions controlling. All terms
used in this Indenture which are defined in the Trust Indenture Act of 1939,
as amended, or which are by reference therein defined in the Securities Act
of 1933 (except as herein otherwise expressly provided or unless the context
otherwise requires) shall have the meanings assigned to such terms in such
Trust Indenture Act and such Securities Act as they were respectively in
force at the date of this Indenture, except as otherwise provided in Section
12.3.
ARTICLE II
FORM, ISSUE AND REGISTRATION OF DEBT SECURITIES
SECTION 2.1. Forms generally and dating. The Debt Securities of each
series shall be in the form or forms (including temporary or permanent global
form) established from time to time by or pursuant to a resolution of the
Board of Directors or in one or more indentures supplemental hereto, which
shall set forth the information required by Section 2.2. The Debt Securities
and the Trustee's certificate of authentication shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or by a resolution of the Board of Directors and
may have such notations, legends or endorsements as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture
or as may be required by law, stock exchange rule or usage. The Company
shall approve and provide the form of the Debt Securities and the form of any
Guarantee thereto and any notation, legend or endorsement thereon. If the
form of Debt Securities of any series is established by action taken pursuant
to a resolution of the Board of Directors, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 2.5 for the authentication and delivery
of such Debt Securities.
Each Debt Security shall be dated the date of its authentication. The
form of the Trustee's certificate of authentication to be borne by the Debt
Securities shall be substantially as follows:
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the Debt Securities of the series referred to on the
reverse hereof.
___________________________________,
as Trustee
By:________________________________
Authorized Officer
SECTION 2.2. Amount unlimited; Issuable in series.
The aggregate principal amount of the 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 one or more resolutions of the Board of
Directors, or established in or pursuant to one or more indentures sup-
plemental hereto, prior to the issuance of the Debt Securities of any series:
(1) the title and designation of the Debt Securities of the
series (which shall distinguish Debt Securities of the series from
all other Debt Securities) including whether such Debt Securities
shall be issued as senior Debt Securities, senior subordinated Debt
Securities or subordinated Debt Securities, any subordination
provisions particular to such series of Debt Securities, and
whether such Debt Securities are convertible and/or exchangeable;
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered
under this Indenture (except for the Debt Securities authenticated
and delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Debt Securities of the series pursuant to
Section 2.6, 2.8, 2.9, 2.10, 2.11, 5.2 or 12.5) and except for any
Debt Securities which pursuant to Section 2.4 are deemed not to
have been authenticated and delivered hereunder;
(3) the date or dates (and whether fixed or extendable) on
which the principal of the Debt Securities of the series is payable
or the method of determination thereof;
(4) the rate or rates (which may be fixed, floating or
adjustable) at which the Debt Securities of the series shall bear
interest, if any, the method of calculating such rates, the date or
dates from which such interest shall accrue or the manner of
determining such dates, the interest payment dates on which such
interest shall be payable and the record dates for the
determination of holders of Debt Securities to whom interest is
payable;
(5) the place or places where the principal of and premium,
if any, and interest on the Debt Securities, if any, of the series
shall be payable;
(6) any provisions relating to the issuance of the Debt
Securities of such series at an original issue discount;
(7) the price or prices at which, the period or periods
within which and the terms and conditions upon which the Debt
Securities of the series may be redeemed, in whole or in part, at
the option of the Company, pursuant to any sinking fund or
otherwise (including, without limitation, the form or method of
payment thereof if other than in cash);
(8) the obligation, if any, of the Company to redeem,
purchase or repay the Debt Securities of the series pursuant to any
mandatory redemption, sinking fund or analogous provisions or at
the option of a holder of Debt Securities thereof and the price or
prices at which and the period or periods within which and the
terms and conditions upon which the Debt Securities of the series
shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation (including, without limitation, the
form or method of payment thereof if other than in cash), and any
provisions for the remarketing of such Debt Securities;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Debt Securities of
the series shall be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of the Debt Securities of the series which
shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 7.1 or provable in bankruptcy pursuant
to Section 7.2, or, if applicable, which is convertible in
accordance with Article XIII.
(11) any Events of Default with respect to the Debt Securities
of a particular series, in lieu of or in addition to those set
forth herein and the remedies therefor;
(12) the obligations, if any, of the Company to permit the
conversion of the Debt Securities of such series into Preferred
Stock or Class A Common Stock, or combination thereof, and the
terms and conditions upon which such conversion shall be effected
(including, without limitation, the initial conversion price or
rate, the conversion period and any other provision in addition to
or in lieu of those set forth in this Indenture relative to such
obligation);
(13) any trustees, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the Debt -
Securities of such series;
(14) the currency or currencies, including composite
currencies, in which the Debt Securities of the series shall be
denominated if other than the currency of the United States of
America, and, if so, whether the Debt Securities of the series may
be satisfied and discharged other than as provided in Article VI;
(15) if other than the coin or currency in which the Debt
Securities of that series are denominated, the coin or currency in
which payment of the principal of, premium, if any, or interest on
the Debt Securities of such series shall be payable (and the manner
in which the equivalent of the principal amount thereof in the
currency of the United States is to be determined for any purpose,
including for the determination of the principal amount
outstanding);
(16) if the principal of, premium, if any, or interest on the
Debt Securities of such series are to be payable, at the election
of the Company or a holder of Debt Securities thereof, in a coin or
currency other than that in which the Debt Securities are
denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(17) if the amount of payments of principal of, premium, if
any, and interest on the Debt Securities of the series may be
determined with reference to an index, the manner in which such
amounts shall be determined;
(18) whether and under what circumstances the Company will
pay additional amounts on the Debt Securities of the series held by
a person who is not a United States of America person in respect of
any tax, assessment or governmental charge withheld or deducted
and, if so, whether the Company will have the option to redeem such
Debt Securities rather than pay such additional amounts;
(19) if receipt of certain certificates or other documents or
satisfaction of other conditions will be necessary for any purpose,
including, without limitation, as a condition to the issuance of
the Debt Securities of such series in definitive form (whether upon
original issue or upon exchange of a temporary Debt Security of
such series), the form and terms of such certificates, documents or
conditions;
(20) any other affirmative or negative covenants with respect
to the Debt Securities of such series;
(21) whether the Debt Securities of such series shall be
issued in whole or in part in the form of one or more Global
Securities and in such case, (i) the Depositary for such Global
Security or Debt Securities, which Depositary must be a clearing
agency registered under the Securities Exchange Act, (ii) the
circumstances under which any such Global Security may be exchanged
for Debt Securities registered in the name of, and under which any
transfer of such Global Security may be registered in the name of,
any Person other than such Depositary or its nominee, if other than
as set forth in Section 2.13 and (iii) any other provisions
regarding such Global Securities which provisions may be in
addition to or in lieu of, in whole or in part, the provisions of
Section 2.13;
(22) whether the Debt Securities are defeasible;
(23) whether the Debt Securities of such series shall be
guaranteed in whole or in part by the Guarantors, jointly and
severally with all other Guarantors in such case, and (i) the
extent that the Debt Securities of the series shall be guaranteed
by the Guarantors; (ii) the ranking of such Guarantee; (iii) the
terms of subordination of such Guarantee; and (iv) the form of any
such Guarantee; and
(24) any other terms of a particular series and any other
provisions expressing or referring to the terms and conditions upon
which the Debt Securities of such series are to be issued under the
Indenture, which terms and provisions are not in conflict with the
provisions of this Indenture; provided, however, that the addition
to or subtraction from or variation of Articles IV, V, VI, VII, and
X (and Section 1.1, insofar as it relates to the definition of
certain terms as used in such Articles) with regard to the Debt
Securities of a particular series shall not be deemed to constitute
a conflict with the provisions of those Articles.
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such resolution of the Board of Directors or in any such in-
denture supplemental hereto. Not all Debt Securities of any one series need
be issued at the same time, and, unless otherwise so provided, a series may
be reopened for issuances of additional Debt Securities of such series.
If any of the terms of the Debt Securities of a series are established
by action taken pursuant to a resolution of the Board of Directors, a copy of
an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee with an
Officers' Certificate setting forth the terms of the Debt Securities of such
series. With respect to Debt Securities of a series which are not to be
issued at one time, such resolution of the Board of Directors or action may
provide general terms or parameters for Debt Securities of such series and
provide either that the specific terms of particular Debt Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with a Company Order as
contemplated by the proviso clause of Section 2.5.
SECTION 2.3. Denominations. The Debt Securities of each series shall
be registered Debt Securities without coupons, in such denominations as shall
be specified as contemplated by Section 2.2. In the absence of any such
provisions with respect to the Debt Securities of any series, the Debt -
Securities of such series shall be issuable in denominations of $1,000 or of
any integral multiple of $1,000.
SECTION 2.4. Execution of Debt Securities; Authentication. The Debt
Securities shall be executed on behalf of the Company by its President or one
of its Executive Vice Presidents or Vice Presidents, whose signatures may be
manual or facsimile, and its corporate seal shall be thereunto affixed (or a
facsimile thereof shall be engraved, printed, or otherwise reproduced
thereon) and attested by the manual or facsimile signature of its Secretary
or one of its Assistant Secretaries. The Guarantees shall be executed on
behalf of each Guarantor by such Guarantor's President or one of its Vice
Presidents (regardless of Vice Presidential designation), whose signatures
may be manual or facsimile, and its corporate seal shall be thereunto affixed
(or a facsimile thereof shall be engraved, printed, or otherwise reproduced
thereon) and attested by the manual or facsimile signature of its Secretary
or one of its Assistant Secretaries. In case any officer of the Company who
shall have signed any of the Debt Securities shall cease to be such officer
before the Debt Securities so signed and attested shall actually have been
authenticated and delivered by the Trustee or the Authenticating Agent or
disposed of by the Company, such Debt Securities nevertheless may be
authenticated, issued and delivered or disposed of with the same force and
effect as though the person or persons who signed or attested such Debt
Securities had not ceased to be such officer of the Company; and any such
Debt Security may be signed and attested on behalf of the Company by such
persons, as at the actual date of the execution of such Debt Security, shall
be the proper officers of the Company, although at the date of such Debt
Security or the date of execution of this Indenture any such person was not
such officer.
No Debt Security of any series shall be entitled to the benefits hereof
or shall be or become valid or obligatory for any purpose unless there shall
appear on the Debt Security a certificate of authentication, substantially in
the form hereinbefore recited, manually executed by the Trustee for such
series or an Authenticating Agent; and such certificate on any series of Debt
Securities issued by the Company shall be conclusive evidence that it has
been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any series of Debt Securities 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 or its designee for cancellation as provided in Section 2.11 together
with a written statement (which need not be accompanied by an Opinion of
Counsel) stating that such Debt Security has not been issued and sold by the
Company, for all purposes of this Indenture such Debt Security shall be
deemed not to have been authenticated and delivered hereunder and shall not
be entitled to the benefits of this Indenture.
If the form or forms or terms of the Debt Securities of any series have
been established in or pursuant to one or more resolutions of the Board of
Directors or indentures supplemental hereto as permitted by Sections 2.1 and
2.2, in authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities,
the Trustee and the Authenticating Agent shall be entitled to receive, and
(subject to Section 11.2) shall be fully protected in relying upon, a copy of
such resolution or resolutions delivered to the Trustee and the
Authenticating Agent and certified by the Secretary or Assistant Secretary of
the Company or the Guarantors to have been duly adopted by the Board of
Directors of the Company or the Guarantors and to be in full force and effect
on the date of such certification, and an Opinion of Counsel stating:
(1) if the form or forms of such Debt Securities and
Guarantees have been established by or pursuant to a resolution of
the Board of Directors or indenture supplemental hereto, that such
form or forms have been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Debt Securities and Guarantees have
been established by or pursuant to a resolution of the Board of
Directors or indenture supplemental hereto, that such terms have
been established in conformity with the provisions of this
Indenture;
(3) that such Debt Securities and Guarantees, when
authenticated and delivered by the Trustee or an Authenticating
Agent and issued by the Company and the Guarantors in the manner
and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the
Company and the Guarantors, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general
equity principles (or such other similar matters as in the opinion
of such counsel shall not materially adversely affect such
enforceability); and
(4) that the issuance and authentication of such Debt
Securities and Guarantees to be issued will not conflict with,
result in a breach or constitute a default or with the giving of
notice or the passage of time or both, would not constitute a
default, under the articles of incorporation or bylaws of the
Company or the Guarantors or result in such a default or violation;
provided, however, that, with respect to Debt Securities of a series which
are not to be issued at one time, the Trustee and the Authenticating Agent
shall be entitled to receive such Opinion of Counsel only once at or prior to
the time of the first authentication of Debt Securities of such series and
that the opinions described in clauses (2) and (3) above may state,
respectively,
(a) that, when the terms of such Debt Securities and
Guarantees shall have been established pursuant to a Company Order
or pursuant to such procedures as may be specified from time to
time by a Company Order, all as contemplated by and in accordance
with a resolution of the Board of Directors or an Officers'
Certificate pursuant to a resolution of the Board of Directors or
indenture supplemental hereto, as the case may be, such terms will
have been established in conformity with the provisions of this
Indenture; and
(b) that such Debt Securities and Guarantees, when (i)
executed by the Company or the Guarantors, as the case may be, (ii)
completed, authenticated and delivered by the Trustee or
Authenticating Agent in accordance with this Indenture, (iii)
issued and delivered by the Company or the Guarantors, as the case
may be, and (iv) paid for, all as contemplated by and in accordance
with the aforesaid Company Order or specified procedures, as the
case may be, will constitute valid and legally binding obligations
of the Company or Guarantor, as the case may be, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance, reorganization and other laws or general
applicability relating to or affecting the enforcement of
creditors' rights and to general equitable principles (or such
other similar matters as in the opinion of such counsel shall not
materially adversely affect such enforceability).
Notwithstanding the provisions of Sections 2.1, 2.2, 3.8 and this
Section, if all the Debt Securities of a series are not to be originally
issued at one time, the resolution of the Board of Directors or indenture
supplemental hereto, the certified copy of the record of action taken
pursuant to such resolution or supplemental indenture, the Officers'
Certificate, the Company Order and any other documents otherwise required
pursuant to such Sections need not be delivered at or prior to the time of
authentication of each Debt Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the
first Debt Security of such series to be issued; provided, however, that any
subsequent request by the Company to the Trustee or the Authenticating Agent
to authenticate Debt Securities of such series shall constitute a
representation and warranty by the Company that, as of the date of such
request, the statements made in the Officers' Certificate delivered pursuant
to Section 3.8 at or prior to authentication of the first such Debt Security
shall be true and correct on the date thereof as if made on and as of the
date thereof.
The Trustee or the Authenticating Agent shall not be required to
authenticate such Debt Securities if the issue of such Debt Securities
pursuant to this Indenture will adversely affect the Trustee's or the
Authenticating Agent's own rights, duties or immunities under the Debt
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee or the Authenticating Agent.
With respect to Debt Securities of a series which are not all issued at
one time, the Trustee and the Authenticating Agent may conclusively rely, as
to the authorization by the Company of any such Debt Securities or the
Guarantors of any such Guarantees, the form and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel, Officers' Certificate and other documents delivered
pursuant to Sections 2.1, 2.2, 3.8 and this Section, as applicable, at or
prior to the time of the first authentication of Debt Securities of such
series and Guarantees unless and until such opinion, certificate or other
documents have been superseded or revoked in a writing delivered to the
Trustee. In connection with the authentication and delivery of Debt
Securities of a series which are not all issued at one time, the Trustee and
the Authenticating Agent shall be entitled to assume that the Company's
instructions to authenticate and deliver such Debt Securities do not violate
any rules, regulations or orders of any governmental agency or commission
having jurisdiction over the Company.
SECTION 2.5. Issue of Debt Securities. The Trustee and the Authenti-
cating Agent, forthwith upon the execution and delivery of this Indenture and
from time to time thereafter, upon the execution and delivery to it of Debt
Securities of any series by the Company and the Guarantees by the Guarantors
as herein provided, and without any further action on the part of the Company
and the Guarantors, shall authenticate such Debt Securities up to a maximum
amount, if any, designated for such series pursuant to Section 2.2 and
deliver them to or upon the receipt of a Company Order; provided, however,
that if not all the Debt Securities of a series are to be issued at one time
and if the resolution of the Board of Directors or indenture supplemental
hereto establishing such series as contemplated by Sections 2.1 and 2.2 shall
so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Debt Securities and for determining the form
or forms or terms of particular Debt Securities of such series including, but
not limited to, interest rate, if any, maturity date, date of issuance and
date from which interest, if any, shall accrue.
SECTION 2.6. Transfer of Debt Securities. The transfer of any series
of Debt Securities may be registered by the registered owner thereof, in
person or by his attorney duly authorized in writing, at the office or agency
of the Company to be maintained by it as provided in Section 4.2, by
delivering such Debt Security for cancellation, accompanied by delivery of a
duly executed instrument of transfer, in form approved by the Company and
satisfactory to the Trustee or its designee, and thereupon the Company shall
execute in the name of the transferee or transferees, and the Trustee or the
Authenticating Agent shall authenticate and deliver, a new Debt Security or
Debt Securities of the same series and of like form for the same aggregate
principal amount.
SECTION 2.7. Persons deemed owners of Debt Securities. Prior to due
presentation of any series of Debt Securities for registration of transfer,
the person in whose name a Debt Security of any series shall be registered,
on books kept for such purpose in accordance with Section 4.2, shall be
deemed the absolute owner thereof for all purposes of this Indenture, whether
or not such Debt Security is overdue, and neither the Company, the Trustee
nor any Paying Agent or conversion agent nor any series of Debt Securities
registrar shall be affected by notice to the contrary. Subject to the
provisions of Section 2.12, payment of or on account of the principal,
premium, if any, and interest shall be made only to or upon the order in
writing of such registered owner thereof, but such registration may be
changed as above provided. All such payments shall be valid and effectual to
satisfy and discharge the liability upon such Debt Security to the extent of
the sum or sums so paid.
SECTION 2.8. Provisions for Debt Securities in temporary form. Until
Debt Securities of any series in definitive form are ready for delivery, the
Company and the Guarantors may execute and, upon its request in writing, the
Trustee or the Authenticating Agent shall authenticate and deliver, in lieu
thereof and subject to the same conditions, one or more printed or
lithographed Debt Securities in temporary form, substantially of the tenor of
Debt Securities of the same series, without a recital of specific redemption
prices and with such other appropriate omissions, variations and insertions,
all as may be determined by the Board of Directors. Until exchanged for Debt
Securities of the same series in definitive form such Debt Securities in
temporary form shall be entitled to the benefits of this Indenture. The
Company and the Guarantors shall, without unreasonable delay after the issue
of Debt Securities in temporary form, prepare, execute and deliver definitive
Debt Securities of the same series to the Trustee, and upon the presentation
and surrender of Debt Securities in temporary form, the Trustee or the
Authenticating Agent shall authenticate and deliver, in exchange therefor,
Debt Securities of the same series in definitive form for the same aggregate
principal amount as the Debt Securities in temporary form surrendered. Such
exchange shall be made by the Company at its own expense and without any
charge therefor.
SECTION 2.9. Mutilated, destroyed, lost or stolen Debt Securities.
Upon receipt by the Company, the Guarantors, the Trustee and the
Authenticating Agent of evidence satisfactory to them that any Debt Security
of any series has been mutilated, destroyed, lost or stolen, and upon receipt
of indemnity (and in case of a destroyed, lost or stolen Debt Security, proof
of ownership) satisfactory to them, the Company and the Guarantors shall, in
the case of a mutilated Debt Security, and may in the case of a lost, stolen
or destroyed Debt Security, execute, and thereupon the Trustee or the
Authenticating Agent shall authenticate and deliver, a new Debt Security of
the same series of like tenor bearing a serial number not contemporaneously
outstanding (bearing such notation, if any, as may be required by the rules
of any stock exchange upon which the Debt Securities of the same series are
listed or are to be listed), in exchange and substitution for, and upon
surrender and cancellation of, the mutilated Debt Security, or in lieu of and
in substitution for the Debt Security so destroyed, lost or stolen; or, if
any mutilated, destroyed, lost or stolen Debt Security of any series shall
have matured or be about to mature, instead of issuing a new Debt Security,
the Company, upon written notice to the Trustee or the Authenticating Agent,
may pay the same without surrender of the destroyed, lost or stolen Debt
Security. The Company may require payment of the expenses which may be
incurred by the Company or any agent thereof and the charges and expenses of
the Trustee and the Authenticating Agent in the premises. Any series of Debt
Securities issued under the provisions, of this Section 2.9 in lieu of any
series of Debt Securities alleged to have been destroyed, lost or stolen,
shall constitute an additional contractual obligation of the Company and the
Guarantors, whether or not the Debt Security alleged to have been destroyed,
lost or stolen shall be found at any time, and shall be equally and
proportionately entitled to the benefits of this Indenture with all other
Debt Securities of the same series issued under this Indenture.
All Debt Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities, and shall
preclude, to the extent lawful, any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.10. Exchanges of Debt Securities. Debt Securities of any
series may, upon surrender thereof as hereinafter provided in this Section
2.10, be exchanged for one or more Debt Securities of the same series of the
same aggregate principal amount, in authorized denominations. The Debt -
Securities to be exchanged shall be surrendered at the office or agency of
the Company to be maintained by it as provided in Section 4.2, accompanied by
duly executed instruments of transfer in a form acceptable to the Company,
the Trustee and the registrar, and the Company and the Guarantors shall
execute and the Trustee or the Authenticating Agent shall authenticate and
deliver, in exchange therefor, the Debt Security or Debt Securities of the
same series, bearing numbers not contemporaneously outstanding, which the
holder of Debt Securities making the exchange shall be entitled to receive.
Every exchange of Debt Securities of any series shall be effected in such
manner as may be prescribed by the Company with the approval of the Trustee
and registrar, and as may be necessary to comply with the regulations of any
stock exchange upon which Debt Securities of such series are listed or are to
be listed or to conform to usage in respect thereof.
Upon every exchange or registration of transfer of Debt Securities, no
service charge shall be made but the Company may require the payment of any
taxes or other governmental charges required to be paid with respect to such
exchange or registration, as a condition precedent to the exercise of the
privilege of such exchange or registration.
All Debt Securities executed, authenticated and delivered in exchange or
upon registration of transfer shall be the valid obligations of the Company
and the Guarantors, evidencing the same debt as the Debt Securities
surrendered, and shall be entitled to the benefits of this Indenture to the
same extent as the Debt Securities in exchange for which they were
authenticated and delivered.
The Company shall not be required to make exchanges or registrations of
transfer under any provision of this Article II of: (a) the Debt Securities
of any series for the period of 15 days next preceding the date of any
designation of Debt Securities of such series to be redeemed, as provided in
Article V, or (b) any series of Debt Securities or portion thereof called or
to be called for redemption.
SECTION 2.11. Cancellation of surrendered Debt Securities. All Debt -
Securities of any series surrendered for the purpose of payment, exchange,
conversion or cancellation (including Debt Securities authenticated which the
Company has not issued and sold) shall, if surrendered to the Company or any
Paying Agent or conversion agent, be delivered to the Trustee or its designee
and cancelled by it, or, if surrendered to the Trustee or its designee, shall
be cancelled by it, and no Debt Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture or
as otherwise provided in the resolution of the Board of Directors or
indenture supplemental hereto establishing such series as contemplated by
Section 2.2. All Debt Securities of any series surrendered for the purpose
of redemption or credit against any sinking fund shall similarly be delivered
to the Trustee or its designee for cancellation, and no Debt Securities shall
be issued in lieu thereof except Debt Securities of the same series in the
case of redemption of a Debt Security in part only. If the Company shall
acquire any of the Debt Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Debt
Securities unless and until the same are delivered to the Trustee or its
designee for cancellation. Unless otherwise directed in writing by the
Company, the Trustee or its designee shall destroy all cancelled Debt
Securities and furnish to the Company a certificate evidencing such
destruction.
SECTION 2.12. Payment of interest; Defaulted interest. Except as
provided in Section 13.4, interest (except defaulted interest) on the Debt
Securities of any series which is payable on any interest payment date shall
be paid to the persons who are holders of Debt Securities of such series at
the close of business on the record date specified for that purpose as con-
templated by Section 2.2. At the option of the Company, payment of interest
on any series of Debt Securities may be made by check mailed to the holder's
registered address.
If the Company defaults in a payment of interest on the Debt Securities
of any series, it shall pay the defaulted interest to the persons who are
holders of Debt Securities of such series at the close of business on a
subsequent special record date. The Company shall fix the record date (which
shall be not less than five Business days prior to the date of payment of
such defaulted interest) and payment date. At least 15 days before the
record date, the Company shall mail to each holder of Debt Securities of such
series a notice that states the record date, the payment date and the amount
of defaulted interest to be paid. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Debt
Security of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee or any paying agent for such
series an amount of money in immediately available funds by 10:00 a.m. New
York time on the payment date equal to the aggregate amount proposed to be
paid in respect of such defaulted interest or shall make arrangements
satisfactory to any Paying Agent for such series for such deposit prior to
the date of the proposed payment. The Company may pay defaulted interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debt Security may be listed, and upon 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 payment
shall be deemed practicable by the Trustee.
SECTION 2.13. Global Securities; Depositary. For the purpose of this
Section, the term "AGENT MEMBER" means a member of, or participant in, a
Depositary; the term "DEPOSITARY" means, with respect to Debt Securities
issuable or issued in whole or in part in the form of one or more Global
Securities, the entity designated as Depositary by the Company pursuant to
Section 2.2, and, if at any time there is more than one such person,
"DEPOSITARY" as used with respect to the Debt Securities shall mean the
respective Depositary with respect to a particular series of Debt Securities;
and the term "GLOBAL SECURITY" means a global certificate evidencing all or
part of the series of Debt Securities as shall be specified herein, issued to
the Depositary for the series or such portion of the series, and registered
in the name of such Depositary or its nominee. The Global Security may
provide that it shall represent the aggregate amount of Outstanding Debt
Securities from time to time endorsed thereon which may from time to time be
reduced to reflect exchanges. Any endorsement to reflect the amount, or any
increase or decrease in the amount, of Outstanding Debt Securities shall be
made by the Trustee.
Notwithstanding Section 2.10, except as otherwise specified as con-
templated by Section 2.2, hereof, any Global Security shall be exchangeable
only as provided in this paragraph. A Global Security shall be exchangeable
pursuant to this Section 2.13 if (i) the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary for such Global Security
or if at any time the Depositary ceases to be a clearing agency registered
under the Securities Exchange Act, (ii) the Company in its sole discretion
determines that all Global Securities of any series then outstanding under
this Indenture shall be exchangeable for definitive Debt Securities of such
series in registered form or (iii) an Event of Default with respect to the
Debt Securities of the series represented by such Global Security has
occurred and is continuing. Any Global Security of such series exchangeable
pursuant to the preceding sentence shall be exchangeable for definitive Debt
Securities of such series in registered form, bearing interest (if any) at
the same rate or pursuant to the same formula, having the same date of
issuance, redemption, conversion (if any) and other provisions, and of
differing denominations aggregating a like amount. Such definitive Debt
Securities of such series shall be registered in the names of the owners of
the beneficial interests in such Global Securities of such series as such
names are from time to time provided by the relevant participants in the
Depositary holding such Global Securities (as such participants are
identified from time to time by such Depositary).
No Global Security may be transferred except as a whole 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 of the Depositary or a
nominee of such successor. Except as provided above, owners solely of
beneficial interests in a Global Security shall not be entitled to receive
physical delivery of Debt Securities of such series in definitive form and
will not be considered the holders of Debt Securities thereof for any purpose
under this Indenture.
Any Global Security that is exchangeable pursuant to the preceding
paragraph shall be exchangeable for Debt Securities of such series in
authorized denominations and registered in such names as the Depositary that
is the holder of Debt Securities of such Global Securities of such series
shall direct.
In the event that a Global Security is surrendered for redemption in
part pursuant to Section 5.2 or 5.5, the Company shall execute, and the
Trustee or the Authenticating Agent shall authenticate and deliver to the
Depositary for such Global Security, without service charge, a new Global
Security in a denomination and tenor equal to and in exchange for the
unredeemed portion of the principal for the Global Security so surrendered.
The Agent Members shall have no rights under this Indenture with respect
to any Global Security held on their behalf by a Depositary, and such
Depositary may be treated by the Company, the Trustee, and any agent of the
Company or the Trustee as the owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished
by a Depositary or impair, as between a Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
holder of a Debt Security of any series, including without limitation the
granting of proxies or other authorization of participants to give or take
any request, demand, authorization, direction, notice, consent, waiver or
other action which a holder of Debt Securities is entitled to give or take
under this Indenture.
The Trustee shall not be required to authenticate Global Securities
until it has received documentation satisfactory to it.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. Rights under Indenture limited to the parties and holders
of Debt Securities. Nothing in this Indenture or the Debt Securities,
express or implied, is intended or shall be construed to confer upon, or to
give to, any person or corporation, other than the parties hereto, their
successors and assigns, and the holders of the Debt Securities, any right,
remedy or claim under or by reason of this Indenture or any provision hereof;
and the provisions of this Indenture are for the exclusive benefit of the
parties hereto, their successors and assigns, and the holders of the Debt
Securities.
SECTION 3.2. Certificate of independent accountants conclusive. Unless
otherwise specifically provided, the certificate or opinion of an independent
firm of public accountants of recognized standing selected by the Board of
Directors and acceptable to the Trustee in the exercise of reasonable care
(which firm may be regular independent accountants to the Company ), shall be
conclusive evidence of the correctness of any computation made under the
provisions of this Indenture, and wherever reference is made in this
Indenture to "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" the certificate or
opinion of such a firm shall be conclusive evidence thereof. The Company
shall furnish to the Trustee upon its request a copy of any such certificate
or opinion.
SECTION 3.3. Treatment of Debt Securities owned or held by the Company
in determining required percentages. For all purposes of this Indenture, in
determining whether the holders of a required percentage or proportion of the
principal amount of Debt Securities of one or more series have concurred in
any request, waiver, vote, direction or consent, Debt Securities owned or
held by or for the account or for the benefit of the Company or any other
obligor under this Indenture or any Affiliate shall be disregarded and deemed
not Outstanding, except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such request, waiver, direction
or consent, only Debt Securities which the Trustee knows to be so owned or
held shall be so disregarded. Debt Securities so owned which have been
pledged in good faith to secure an obligation may be regarded as Outstanding
for all such purposes, if the Trustee receives an Officers' Certificate
stating that said Debt Securities have been so pledged, that the pledgee is
entitled to vote with respect to such Debt Securities and that the pledgee is
not the Company or any other obligor on the Debt Securities, an Affiliate of
the Company or an Affiliate of such other obligor. In case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be conclusive, and, subject to the provisions of Section 11.1 of this
Indenture, shall afford full protection to the Trustee.
SECTION 3.4. Remaining provisions not affected by invalidity of any
other provisions - required provisions of Trust Indenture Act of 1939 to
control. In case any one or more of the provisions contained in this
Indenture or in the Debt Securities of any series shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Indenture, but this Indenture shall be construed as if such invalid, illegal
or unenforceable provisions had never been contained herein.
If any provision of this Indenture limits, qualifies or conflicts with
any other provision of this Indenture which is required to be included in an
indenture qualified under the Trust Indenture Act of 1939, such provision
which is so required to be included shall control. If any provisions of this
Indenture modifies or excludes any provisions of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or excluded, as the case may be.
SECTION 3.5. Company released from Indenture requirements if entitled
to have Indenture cancelled. Whenever by the terms of this Indenture the
Company and the Guarantors shall be required to do or not to do anything so
long as any of the Debt Securities shall be Outstanding of any series, the
Company and the Guarantors shall, notwithstanding any such provision, not be
required to comply with such provision with respect to such series if it
shall be entitled to have this Indenture satisfied and discharged pursuant to
the provisions hereof, even though in either case the holders of any of the
Debt Securities of such series shall have failed to present and surrender
such Debt Securities for payment pursuant to the terms of this Indenture.
SECTION 3.6. Date of execution. Although this Indenture, for
convenience and for the purpose of reference, is dated as of the date first
above written, the actual date of execution by the Company, the Guarantors
and by the Trustee is as indicated by their respective acknowledgements
hereto annexed.
SECTION 3.7. Execution of documents furnished under the Indenture.
Unless otherwise expressly provided, any order, notice, request, demand,
certificate or statement of the Company or any Guarantor required or
permitted to be made or given under any provision hereof shall be
sufficiently executed if signed by its Chairman of the Board, President or
any Vice President (regardless of Vice Presidential designation), and by its
Chief Financial Officer, Treasurer, any Assistant Treasurer, Secretary or any
Assistant Secretary.
SECTION 3.8. Officers' Certificate and Opinions of Counsel to be
furnished to Trustee. Upon any application, demand or request by the
Company or any Guarantor to the Trustee to take any action under any of the
provisions of this Indenture, the Company and each Guarantor, as the case may
be, 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 have been
complied with and that such action is in compliance with applicable law.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include (a) a statement that
the person making such certificate or opinion has read such covenant or
condition; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based; (c) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (d) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Company and
any Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters, information
with respect to which is in the possession of the Company and the Guarantors,
upon the certificate, statement or opinion of or representations by an
officer or officers of the Company and the Guarantors, as the case may be,
unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company, any
Guarantor, or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Company and the Guarantors, as
the case may be, unless such officer or counsel, as the case may be, knows
that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous. Any certificate or opinion of any
independent firm of public accountants filed with the Trustee shall contain a
statement that such firm is independent.
SECTION 3.9. Presentation of notices and demands. All notices to or
demands upon the Trustee shall be in writing and may be served or presented
at the principal office of the Trustee. Any notice to or demand upon the
Company or any Guarantor shall be deemed to have been sufficiently given or
served by the Trustee or the holders of Debt Securities, for all purposes, by
being mailed by first class mail addressed to the Company, attention of the
President, at 116 Buffalo Street, Canandaigua, New York 14424, or at such
other address or to such other counsel, as may be filed in writing by the
Company with the Trustee.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to holders of Debt Securities of any event, such notice
shall be sufficiently given to holders of Debt Securities if in writing and
mailed, first-class postage prepaid, to each holder of a Debt Security
affected by such event, at the address of such holder as it appears in the
Debt Security register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice to holders
of Debt Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to holders of Debt Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular holder of a Debt Security shall affect
the sufficiency of such notice with respect to other holders of Debt
Securities.
SECTION 3.10. Successors and assigns bound by Indenture. All the
covenants, promises and agreements in this Indenture contained by or on
behalf of the Company, the Guarantors or by or on behalf of the Trustee,
shall bind and inure to the benefit of their respective successors and
assigns, whether so expressed or not.
SECTION 3.11. Descriptive headings for convenience only. The
descriptive headings of the several Articles of this Indenture are inserted
for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
SECTION 3.12. New York law to govern. This Indenture and each Debt
Security shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws
of said jurisdiction, and the rights, obligations, duties, immunities and
limitations of rights of the Trustee shall be construed in accordance with
the laws of the State of New York.
SECTION 3.13. Indenture may be executed in counterparts. This
Indenture may be simultaneously executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Harris Trust and Savings Bank, as Trustee, hereby accepts the trusts in this
Indenture declared and provided upon the terms and conditions hereinbefore
set forth.
ARTICLE IV
COVENANTS OF THE COMPANY
The Company covenants and agrees as follows:
SECTION 4.1. Payment of Principal and interest. The Company and each
Guarantor will for the benefit of each series of Debt Securities duly and
punctually pay or cause to be paid the principal of, premium, if any, and
interest on the Debt Securities of such series at the times and place and in
the manner specified in this Indenture, the Guarantees and in the Debt
Securities of such series. At the option of the Company, interest on the
Debt Securities shall be payable without presentation of such Debt Securities
by a check to the registered holder. Any payment of principal and any
premium or interest required to be made on an interest payment date,
redemption date or at maturity which is not a Business day need not be made
on such date, but may be made on the next succeeding Business day with the
same force and effect as if made on such interest payment date, redemption
date or at maturity, as the case may be, and no interest shall accrue for the
period from and after such interest payment date, redemption date or
maturity.
SECTION 4.2. Maintenance of office or agency. So long as any of the
Debt Securities of any series remain unpaid, the Company will at all times
keep an office or agency in New York, New York, where Debt Securities of such
series may be presented for registration of transfer and exchange as in this
Indenture provided, where notices and demands with respect to the Debt
Securities and this Indenture may be served and where the Debt Securities may
be presented for payment or, for Debt Securities of each series that is
convertible, for conversion. The principal office of the Trustee shall be
the office or agency for all of the aforesaid purposes unless otherwise
provided in a supplemental indenture or unless the Company shall maintain
some other office or agency with respect to the Debt Securities of any series
for such purposes and shall give the Trustee written notice of the location
thereof. In case the Company shall fail to maintain such office or agency,
presentations may be made and notices and demands may be served at the
principal office of the Trustee.
The Company shall keep, at said office or agency, a register or
registers in which, subject to such reasonable regulations as it may
prescribe, the Company shall register or cause to be registered Debt
Securities of each series and shall register or cause to be registered the
transfer or exchange of Debt Securities of each series as in Article II
provided. Such register or registers shall be in written form in the English
language or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, such register or
registers shall be open for inspection by the Trustee.
SECTION 4.3. Corporate existence. Subject to Article X hereof, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and the rights (charter and
statutory) and franchises of the Company and each Guarantor; 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 and its Guarantors as a whole
and that the loss thereof is not disadvantageous in any material respect to
the holders of Debt Securities.
SECTION 4.4. Restrictions on mergers, sales and consolidations. So
long as any of the Debt Securities remain unpaid, neither the Company nor any
Guarantor will consolidate or merge with or sell, convey or lease all or
substantially all of its property to any other corporation, partnership or
limited liability company except as permitted in Article X hereof.
SECTION 4.5. Further assurances. From time to time whenever requested
by the Trustee, the Company and the Guarantors will execute and deliver such
further instruments and assurances and do such further acts as may be
reasonably necessary or proper to carry out more effectually the purposes of
this Indenture or to secure the rights and remedies hereunder of the holders
of the Debt Securities of any series.
SECTION 4.6. File certain reports and information with the Trustee and
the Securities and Exchange Commission - transmit to holders of Debt
Securities summaries of certain documents filed with the Trustee - furnish
list of holders of Debt Securities to the Trustee. The Company will:
(a) file with the Trustee, within 15 days after the Company files
the same with the Securities and Exchange Commission, copies of the
annual reports and of the information, documents and other reports which
the Company may be required to file with the Securities and Exchange
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (or copies of such portions thereof as may be
prescribed by the Securities and Exchange Commission); or, if the
Company is not required to file with the Securities and Exchange
Commission information, documents or reports pursuant to either Section
13 or Section 15(d) of the Securities Exchange Act of 1934, then the
Company will file with the Trustee and will file with the Securities and
Exchange Commission, in accordance with rules and regulations prescribed
by the Securities and Exchange Commission, such of the supplementary and
periodic information, documents and reports required pursuant to Section
13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be
prescribed in such rules and regulations;
(b) file with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed from
time to time by the Securities and Exchange Commission, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture
as may be required by such rules and regulations;
(c) transmit to the holders of Debt Securities, in the manner and
to the extent provided in subdivision (c) of Section 11.10, such
summaries of any information, documents and reports required to be filed
with the Trustee pursuant to the provisions of subdivisions (a) and (b)
of this Section 4.6 as may be required by the rules and regulations of
the Securities and Exchange Commission; and
(d) furnish or cause to be furnished to the Trustee, not more than
15 days after each record date (but in no event less frequently than
every six months) for the payment of interest with respect to Debt
Securities of any series, and at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any
such request, a list in such form as the Trustee may reasonably require
containing all information in the possession or control of the Company
or of any Paying Agent, other than the Trustee, as to the names and
addresses of the holders of Debt Securities of such series obtained
since the date as of which the next previous list, if any, was
furnished; provided, that so long as the Trustee is Debt Security
registrar for such series, no such list need be furnished. Any such
list may be dated as of a date not more than 15 days prior to the time
such information is furnished or caused to be furnished, and need not
include information received after such date (excluding from any such
list names and addresses received by the Trustee in its capacity as Debt
Security registrar).
SECTION 4.7. File statement by officers annually with the Trustee.
Within 120 days after the close of the fiscal year ending February 28, 1998,
and within 120 days after the close of each fiscal year thereafter, the
Company will file with the Trustee a brief certificate from the chief
executive officer, chief financial officer or treasurer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 4.8. Duties of Paying Agent. The Company will cause each
Paying Agent for the Debt Securities of any series other than the Trustee to
execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee:
(a) that it will hold all sums held by it as such agent for the
payment of the principal of, premium, if any, or interest on the Debt
Securities of such series (whether such sums have been paid to it by the
Company or by any other obligor on the Debt Securities of such series)
in trust for the benefit of the holders of the Debt Securities of such
series;
(b) that it will give the Trustee written notice of any failure by
the Company (or by any other obligor on the Debt Securities of such
series) to make any payment of the principal of, premium, if any, or
interest on the Debt Securities of such series when the same shall be
due and payable; and
(c) that it will, at any time during the continuance of any Event
of Default with respect to such series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
If the Company acts as its own Paying Agent for the Debt Securities of any
series, it will, on or before each due date of the principal of, premium, if
any, or interest on the Debt Securities of such series, set aside and
segregate and hold in trust for the benefit of the holders of the Debt
Securities of such series a sum sufficient to pay such principal, premium, if
any, or interest and will notify the Trustee of such action or any failure to
take such action.
Whenever the Company shall have one or more Paying Agents for any series
of Debt Securities, it will, on or before each due date of the principal of,
premium, if any, or interest on any Debt Securities of such series, deposit
with the Paying Agent or Agents for the Debt Securities of such series a sum,
by 10:00 a.m. New York time in immediately available funds on the payment
date, sufficient to pay the principal, premium, if any, or interest so
becoming due with respect to the Debt Securities of such series, and (unless
such paying agent is the Trustee) the Company will promptly notify the
Trustee in writing of any failure so to act.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to the Debt
Securities of one or more series or for any other purpose, pay, or by Company
order direct any Paying Agent for such series 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 payment.
Anything in this Section 4.8 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.8 shall be
subject to the provisions of Section 6.3.
ARTICLE V
REDEMPTION OF DEBT SECURITIES; SINKING FUND
SECTION 5.1. Applicability of Article. Debt Securities of any series
which are redeemable before their stated maturity at the election of the
Company or through the operation of any sinking fund for the retirement of
Debt Securities of such series) shall be redeemable in accordance with their
terms established pursuant to Section 2.2 and (except as otherwise
established pursuant to Section 2.2 for Debt Securities of such series) in
accordance with this Article.
SECTION 5.2. Notice of redemption to be given to Trustee - deposit of
cash (or other form of payment) with Trustee - selection by Trustee of Debt
Securities to be redeemed. Not less than 30 days (or such lesser number of
days as the Trustee shall approve) nor more than 60 days (or such greater
number of days as the Trustee shall approve) prior to the date fixed by the
Company for the redemption at the option of the Company of any Debt
Securities of any series which are subject to redemption or portions thereof,
the Company shall give written notice, by delivering a Company Order to the
Trustee, stating the aggregate principal amount of Debt Securities of such
series which the Company elects to redeem and the date and place fixed for
redemption, that the Company, in the case of any redemption of Debt
Securities subject to any restrictions on such redemption provided in the
terms of Debt Securities of such series established pursuant to Section 2.2
or elsewhere in this Indenture, is in compliance with such restrictions. On
or before 10:00 a.m. New York time of the date fixed for redemption, the
Company shall deposit with the Trustee or the Paying Agent money in
immediately available funds on such redemption date (or other form of payment
if permitted by the terms of such Debt Securities) in an amount sufficient to
redeem on the date fixed for redemption all the Debt Securities of such
series or portions thereof to be redeemed, other than any Debt Securities of
such series called for redemption on such date which have been converted
prior to the date of such deposit, at the appropriate redemption price,
together with any accrued interest to the date fixed for redemption. If less
than all the Debt Securities then Outstanding of such series are to be
redeemed, the Trustee shall select, substantially pro rata or by lot, in such
manner as it shall deem appropriate and fair, in its sole discretion, the
numbers of the Debt Securities to be redeemed as a whole or in part, and
shall thereafter promptly notify the Company in writing of the numbers of the
Debt Securities to be redeemed; provided, however, that Debt Securities of
such series registered in the name of the Company shall be excluded from any
such selection for redemption until all Debt Securities of such series not so
registered shall have been previously selected for redemption. For the
purpose of such selection in case of redemption of less than all of the Debt
Securities of any series, the Trustee and the Company shall have the option
to treat as Outstanding Debt Securities any Debt Securities of such series
which are surrendered for conversion after the fifteenth day immediately
preceding the mailing of the notice of such redemption, and need not treat as
Outstanding Debt Securities any Debt Securities authenticated and delivered
during such period in exchange for the unconverted portion of any Debt
Securities converted in part during such period. In case any series of Debt
Securities shall be redeemed in part only, the notice of redemption shall
specify the principal amount thereof to be redeemed and shall state that,
upon surrender thereof for redemption, a new Debt Security or new Debt
Securities of the same series of an aggregate principal amount equal to the
unredeemed portion of such Debt Security will be issued in lieu thereof; and
in such case the Company shall execute and the Trustee or the Authenticating
Agent shall authenticate and deliver such new Debt Security or Debt
Securities of such series to or upon the written order of the holder of Debt
Securities, at the expense of the Company. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
Upon or after the receipt of such notice, the Trustee, in the name of
the Company and as its agent, shall mail by first-class mail, postage
prepaid, to each registered holder of a Debt Security to be redeemed in whole
or in part at his last address appearing on the registration books of the
Company, a notice of redemption. Such notice of redemption shall identify
the Debt Securities to be so redeemed in whole or in part and whether such
Debt Securities are to be redeemed in whole or in part and shall state: (i)
the date fixed for redemption; (ii) the redemption price at which Debt
Securities are to be redeemed and method of payment, if other than in cash;
(iii) if applicable, the current conversion price or rate; (iv) if
applicable, that the right of the holder of Debt Securities to convert Debt
Securities called for redemption shall terminate at the close of business on
the date fixed for redemption (or such other day as may be specified as
contemplated by Section 2.2 for Debt Securities of any series); (v) if
applicable, that holders of Debt Securities who want to convert Debt
Securities called for redemption must satisfy the requirements for conversion
contained in such Debt Securities; (vi) that, subject to Section 13.4,
interest, if any, accrued to the date fixed for redemption will be paid as
specified in said notice and that on and after said date interest thereon
shall cease to accrue; (vii) the provision of the Debt Security or this
Indenture under which the redemption is being made; and (viii) that the
Company so elects to redeem such Debt Securities or portions thereof at the
place or places specified in such notice. Such notice shall be mailed not
later than the tenth, and not earlier than the sixtieth, day before the date
fixed for redemption. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or
not the holder receives such notice; and failure duly to give such notice by
mail, or any defect in such notice, to the holder of any series of Debt
Securities designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Debt
Security.
The Company shall pay to the Trustee the cost of mailing notices of
redemption and any other necessary expenses incurred by the Trustee in
connection therewith.
SECTION 5.3. Debt Securities called for redemption to become due -
rights of holders of redeemed Debt Securities - return of funds on
conversion. The notice of election to redeem having been mailed as
hereinbefore provided, the Debt Securities or portions thereof called for
redemption shall become due and payable on the redemption date at the
applicable redemption price, together with interest accrued to the date fixed
for redemption, at the place or places specified in such notice, and if cash
(or other form of payment if permitted by the terms of such Debt Securities)
in the amount necessary to redeem such Debt Securities or portions thereof
has been deposited with the Trustee, interest on such Debt Securities or
portions thereof shall cease to accrue from and after the date fixed for
redemption (unless the Company shall default in the payment of the redemption
price, plus accrued interest, if any) and the right to convert such Debt
Securities or portions thereof, if the terms of such Debt Securities provide
for conversion pursuant to Section 2.2, shall terminate at the close of
business on the date fixed for redemption or such other day as may be
specified as contemplated by Section 2.2 for Debt Securities of such series.
The respective registered holders of Debt Securities or portions thereof so
called for redemption shall be entitled to receive payment of the applicable
redemption price, together with interest accrued to the date fixed for
redemption on or after the date fixed for redemption (unless the Company
shall default in the payment of the redemption price, plus accrued interest,
if any), upon presentation and surrender at the place or places of payment
specified in such notice. Notwithstanding the foregoing, subject to Section
13.4, if the record date for payment of interest is on or prior to the
redemption date, such interest shall be payable to the persons who are
holders of such Debt Securities on such record date according to the terms of
such Debt Securities and Section 2.12.
If any series of Debt Securities called for redemption pursuant to
Section 5.1 is converted pursuant to Article XIII, any monies deposited with
the Trustee for the purpose of paying or redeeming any such Debt Security
shall be promptly paid to the Company.
SECTION 5.4. Credits against sinking fund. Against any one or more
sinking fund payments to be made pursuant to the terms of the Debt Securities
of any series providing for a sinking fund, the Company may elect, by
delivery of an Officers' Certificate to the Trustee, at least 45 days prior
to the sinking fund payment date (or such shorter period as may be acceptable
to the Trustee or is otherwise specified as contemplated by Section 2.2 for
Debt Securities of any series), to take credit for any Debt Securities of
such series or portions thereof acquired or redeemed by the Company, pursuant
to the terms of such Debt Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Debt Securities,
which have not previously been used by the Company for the purposes permitted
in this Section 5.4 and for any Debt Securities which have been converted
pursuant to the terms of such Debt Securities. 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 sinking fund payment shall be reduced
accordingly. Upon any such election the Company shall receive credit against
such sinking fund payments required to be made in the order in which they are
to be made. Any series of Debt Securities for which credit is elected to be
taken which shall not theretofore have been delivered to the Trustee for
cancellation shall at the time of such election be delivered to the Trustee
for cancellation by the Trustee.
SECTION 5.5. Redemption through sinking fund. Each sinking fund
payment made under the terms of the Debt Securities of any series established
pursuant to Section 2.2 shall be applied to the redemption of Debt Securities
of such series on the date for redemption specified in the Debt Securities of
such series next succeeding such sinking fund payment date; provided,
however, if at any time the amount of cash to be paid into the sinking fund
for such series on the next succeeding such sinking fund payment date;
provided, however, if at any time the amount of cash to be paid into the
sinking fund for such series on the next succeeding sinking fund payment
date, together with any unused balance of any preceding sinking fund payment
or payments for such series, shall not exceed in the aggregate $10,000, the
Trustee, unless requested by the Company, shall not give notice of the
redemption of Debt Securities of such series through the operation of the
sinking fund on the succeeding date for redemption specified in the Debt
Securities of such series. At least 45 days (or such lesser number of days
as the Trustee shall approve) prior to the date on which a sinking fund
payment with respect to the Debt Securities of any series is due, the Company
shall give written notice to the Trustee of the principal amount of Debt
Securities of such series registered in the name of the Company (which shall
be excluded from such redemption) and the Trustee shall select, substantially
pro rata or by lot, in such manner as it shall deem appropriate and fair, the
principal amount of Debt Securities of such series to be redeemed in
accordance with the terms of the Debt Securities of such series after
allowance for any credit elected under Section 5.4 and shall, in the name and
at the expense of the Company and as its agent, give notice of such
redemption, all in the manner provided for in Section 5.2, except that such
notice shall state that the Debt Securities of such series are being redeemed
for the sinking fund. The notice of redemption having been mailed as
hereinbefore provided, the Debt Securities or portions thereof called for
redemption shall become due and payable on the next succeeding date for
redemption specified in the Debt Securities of such series at the sinking
fund redemption price thereof, all in the manner and with the effect provided
for in Section 5.3.
Any sinking fund payment not so required to be applied to the redemption
of Debt Securities of any series on the date for redemption specified in the
Debt Securities of such series next succeeding any sinking fund payment date
may, at the direction of the Company as evidenced by a Company Order, be
applied by the Trustee prior to the forty-fifth day preceding the next
following sinking fund payment date for such series, in such manner and from
time to time, in such amount as the Company may direct the Trustee in
writing, so far as such moneys shall be adequate, to the purchase for the
sinking fund of Debt Securities of such series or portions thereof, in the
open market, from the Company or otherwise, at prices (exclusive of accrued
interest and brokerage commissions) not in excess of the sinking fund
redemption price for such series. The Company agrees to pay to the Trustee,
upon request, accrued interest and brokerage commissions paid by the Trustee
with respect to any Debt Securities of such series so purchased by the
Trustee and such accrued interest and brokerage commissions shall not be
charged against the sinking fund for such series.
Any unused balance of sinking fund moneys with respect to Debt
Securities of any series remaining in the hands of the Trustee on the forty-
fifth day preceding the sinking fund payment date for such series in any year
shall be added to any sinking fund payment for such series to be made in cash
in such year, and together with such payment, if any, shall be applied to the
redemption or purchase of Debt Securities of such series in accordance with
the provisions of this Section 5.5, provided that any sinking fund moneys so
remaining in the hands of the Trustee after the date specified in the Debt
Securities of such series and not utilized in the purchase of Debt Securities
of such series as provided in this Section 5.5 shall be applied by the
Trustee to the payment of Debt Securities at maturity.
SECTION 5.6. Debt Securities no longer Outstanding after notice to
Trustee and deposit of cash. If the Company, having given notice to the
Trustee as provided in Section 5.1 or 5.2, shall have deposited with the
Trustee or the Paying Agent, for the benefit of the holders of any Debt
Securities of any series or portions thereof called for redemption in whole
or in part cash or other form of payment if permitted by the terms of such
Debt Securities (which amount shall be immediately due and payable to the
holders of such Debt Securities or portions thereof) in the amount necessary
so to redeem all such Debt Securities or portions thereof on the date fixed
for redemption and provision satisfactory to the Trustee shall have been made
for the giving of notice of such redemption, such Debt Securities, or
portions thereof, shall thereupon, for all purposes of this Indenture, be
deemed to be no longer Outstanding, and the holders thereof shall be entitled
to no rights thereunder or hereunder, except the right to receive payment of
the applicable redemption price, together with interest accrued to the date
fixed for redemption, on or after the date fixed for redemption of such Debt
Securities or portions thereof and the right to convert such Debt Securities
or portions thereof, if the terms of such Debt Securities provide for
convertibility pursuant to Section 2.2, at or prior to the close of business
on the date fixed for redemption.
SECTION 5.7. Conversion arrangement on call for redemption. In
connection with any redemption of Debt Securities, the Company may arrange
for the purchase and conversion of any Debt Securities called for redemption
by an agreement with one or more investment bankers or other purchasers to
purchase such Debt Securities by paying to the Trustee or the Paying Agent in
trust for the holders of Debt Securities, on or before 10:00 a.m. New York
time on the redemption date, an amount no less than the redemption price,
together with interest, if any, accrued to the redemption date of such Debt
Securities, in immediately available funds. Notwithstanding anything to the
contrary contained in this Article V, the obligation of the Company and the
Guarantors to pay the redemption price of such Debt Securities, including all
accrued interest, if any, shall be deemed to be satisfied and discharged to
the extent such amount is so paid by such purchasers. If such an agreement
is entered into, any Debt Securities not duly surrendered for conversion by
the holders thereof may, at the option of the Company, be deemed, to the
fullest extent permitted by law, acquired by such purchasers from such
holders and (notwithstanding anything to the contrary contained in Article
XIII) surrendered by such purchasers for conversion, all as of immediately
prior to the close of business on the last day on which Debt Securities of
such series called for redemption may be converted in accordance with this
Indenture and the terms of such Debt Securities, subject to payment of the
above amount aforesaid. The Trustee or the Paying Agent shall hold and pay
to the holders of Debt Securities whose Debt Securities are selected for
redemption any such amount paid to it in the same manner as it would moneys
deposited with it by the Company for the redemption of Debt Securities.
Without the Trustee's and the Paying Agent's prior written consent, no
arrangement between the Company and such purchasers for the purchase and
conversion of any Debt Securities shall increase or otherwise affect any of
the powers, duties, responsibilities or obligations of the Trustee as set
forth in this Indenture, and the Company agrees to indemnify the Trustee
from, and hold it harmless against, any loss, liability or expense arising
out of or in connection with any such arrangement for the purchase and
conversion of any Debt Securities between the Company and such purchasers,
including the costs and expenses incurred by the Trustee and the Paying Agent
in the defense of any claim or liability arising out of or in connection with
the exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
ARTICLE VI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 6.1. Satisfaction and discharge of Indenture with respect to
Debt Securities of any series. If (a) the Company shall deliver to the
Trustee for cancellation all Debt Securities of any series theretofore
authenticated (other than any such Debt Securities which shall have been
destroyed, lost or stolen and in lieu of or in substitution for which other
such Debt Securities shall have been authenticated and delivered or Debt
Securities for whose payment money (or other form of payment if permitted by
the terms of such Debt Securities) has theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 6.3) and not
theretofore cancelled, or (b) the Company shall irrevocably deposit (subject
to Section 6.3) with the Trustee or Paying Agent as trust funds the entire
amount in cash or U.S. Government Obligations sufficient to pay at maturity
or upon redemption all of the Debt Securities of such series (other than any
Debt Securities which shall have been destroyed, lost or stolen and in lieu
of or in substitution for which other Debt Securities shall have been
authenticated and delivered or Debt Securities for whose payment money (or
other form of payment if permitted by the terms of such Debt Securities) has
theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 6.3) not theretofore paid, surrendered or delivered to
the Trustee for cancellation, including the principal, premium, if any, and
interest due or to become due to such date of maturity or redemption date, as
the case may be, and if in either case the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company and the Company shall
deliver to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that in the opinion of the signers all conditions precedent to
the satisfaction and discharge of this Indenture with respect to the Debt
Securities of such series have been complied with (and, in the event that
such deposit shall be made more than one year prior to the maturity of the
Debt Securities of such series, such Opinion of Counsel shall also state that
such deposit will not result in an obligation of the Company, the Trustee or
the trust fund created by such deposit to register as an investment company
under the Investment Company Act of 1940, as amended) and a certificate (upon
which the Trustee may rely) of a firm of independent public accounts of
recognized national standing selected by the Board of Directors (who may be
the regular accountants employed by the Company) stating that the cash, if
any, and U.S. Government Obligations, if any, deposited as set forth above
are sufficient to pay at maturity or upon redemption all of the Debt
Securities of such series as set forth above, then, except with respect to
the remaining rights of conversion of any Debt Securities the terms of which
provide for conversion (which shall continue in full force and effect
pursuant to the terms set forth in Article XIII to the extent provided for in
such terms) or to rights of exchange or registration of transfer or of the
Company's right of optional redemption of any Debt Securities of such series,
this Indenture shall cease to be of further effect with respect to the Debt
Securities of such series, and the Trustee, on demand of and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to the Debt
Securities of such series. Notwithstanding the satisfaction and discharge of
this Indenture with respect to the Debt Securities of such series, the
obligations of the Company and the Guarantors to the Trustee under Section
11.2 shall survive, and if moneys or U.S. Government Obligations shall have
been irrevocably deposited with the Trustee or Paying Agent pursuant to
clause (b) of this Section, the obligations of the Trustee under Section 6.2
and the first paragraph of Section 6.3 shall survive.
In order to have money available on a payment date to pay the principal
of, premium, if any, or interest, if any, on the Debt Securities, the U.S.
Government Obligations shall be payable as to principal or interest on or
before such payment date in such amounts as will provide the necessary money.
Such U.S. Government Obligations shall not be callable at the issuer's
option.
SECTION 6.2. Deposits for payment or redemption of Debt Securities to
be held in trust. Subject to the provisions hereinafter contained in this
Article VI, any moneys or U.S. Government Obligations (or other form of
payments if permitted by the terms of such Debt Security) which at any time
shall be deposited by the Company, or on its behalf with the Trustee or
Paying Agent, for the purpose of paying or redeeming any of the Debt
Securities of any series shall be held in trust and applied by the Trustee to
the payment to the holders of the particular Debt Securities for the payment
or redemption of which such moneys (or other form of payments if permitted by
the terms of such Debt Security) have been deposited, of all sums due and to
become due thereon for principal, premium, if any, and interest, upon
presentation and surrender of such Debt Securities at the office or agency of
the Company maintained as provided in this Indenture. Neither the Company
nor the Trustee (except as provided in Section 11.2) nor any Paying Agent
shall be required to pay interest on any moneys so deposited.
SECTION 6.3. Repayment of moneys. Any moneys or U.S. Government
Obligations deposited with the Trustee or any Paying Agent remaining
unclaimed by the holders of Debt Securities for two years after the date upon
which the principal of or interest on such Debt Securities shall have become
due and payable, shall (unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law) be repaid to the
Company by the Trustee or Paying Agent and such holders shall (unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law) thereafter be entitled to look to the Company only
for payment thereof; provided, however, that, before being required to make
any such payment to the Company, the Trustee or Paying Agent may, at the
expense and written direction of the Company, cause to be published once, in
an Authorized Newspaper, a notice that such moneys remain unclaimed and that,
after the date set forth in said notice, the balance of such moneys then
unclaimed will be returned to the Company.
Upon satisfaction and discharge of this Indenture, all moneys then held
by any Paying Agent other than the Trustee hereunder shall, upon demand of
the Company, be repaid to it and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
The Trustee or any Paying Agent shall deliver or pay to the Company from
time to time upon a request in writing by the Company any moneys or U.S.
Government Obligations (or the principal or interest on such U.S. Government
Obligations) held by it as provided in Section 6.1 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof to the Trustee, are then in excess of the
amount thereof which then would have been required to be deposited for the
purpose for which such money or U.S. Government Obligations were deposited or
received.
ARTICLE VII
REMEDIES UPON DEFAULT
SECTION 7.1. Events of Default defined -- acceleration of maturity upon
default -- waiver of default after acceleration. The following events are
hereby defined for all purposes of this Indenture (except where the term is
otherwise defined for specific purposes) as Events of Default with respect to
Debt Securities of a particular series, unless it is either inapplicable to a
particular series or is specifically deleted or modified as contemplated by
Section 2.2 for the Debt Securities of such series, in addition to any other
events as may be defined as Events of Default pursuant to Section 2.2 for the
Debt Securities of such series:
(a) Failure of the Company to pay or provide for payment of the
principal of or premium, if any, on any of the Debt Securities of such
series, when and as the same shall become due and payable, whether at
maturity thereof, by call for redemption, through any mandatory sinking
fund, by redemption at the option of the holder of any series of Debt
Securities pursuant to the terms of such Debt Security, by declaration
of acceleration or otherwise; or
(b) Failure of the Company to pay or provide for payment of any
installment of interest on any of the Debt Securities of such series,
when and as the same shall become due and payable, which failure shall
have continued for a period of 30 days; or
(c) Failure of the Company or the Guarantors to perform or observe
any other of the covenants or agreements on the part of the Company or
the Guarantors in this Indenture or in the Debt Securities of such
series (other than a covenant or agreement which has expressly been
included in this Indenture solely for the benefit of Debt Securities of
any series other than that series or is expressly made inapplicable to
the Debt Securities of such series pursuant to Section 2.2) or in the
Guarantees, which failure shall have continued for a period of 90 days
after written notice by certified or registered mail given to the
Company or the Guarantors, as the case may be, by the Trustee hereunder
or to the Company and to the Trustee from the holders of not less than
25% of the aggregate principal amount of Debt Securities then
Outstanding of such series under this Indenture specifying such Event of
Default or failure and requesting that it be remedied and stating that
such notice is a notice of an event which, if continued for 90 days
after such written notice, will become an Event of Default;
(d) The institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking relief under any
Bankruptcy Law or the consent by it to the institution of proceedings
thereunder or consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by the Company of an
assignment for the benefit of creditors, or the admission by the Company
in writing of its inability to pay its debts generally as they become
due;
(e) The entry of a decree or order by a court having jurisdiction
for relief in respect of the Company, or adjudging the Company a
bankruptcy or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any Bankruptcy Law or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or
ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 180 consecutive days; or
(f) any Guarantee of any Guarantor that is a Significant
Subsidiary shall for any reason cease to be, or be asserted in
writing by any such Guarantor thereof or the Company not to be, in
full force and effect and enforceable in accordance with its terms
(other than by reason of the termination of this Indenture or the
release of any such Guarantee in accordance with this Indenture),
provided, however, that if the Company or any Guarantor asserts in
writing that any Guarantee is not in full force and effect and
enforceable in accordance with its terms, such assertion shall not
constitute an Event of Default for purposes of this subsection (f)
if (i) such written assertion is accompanied by an Opinion of
Counsel to the effect that, as a matter of law, the defect or
defects rendering such Guarantee unenforceable can be remedied
within 10 days of the date of such assertion, (ii) the Company or
such Guarantor delivers an Officers' Certificate to the effect that
the Company or such Guarantor represents that such defect or
defects shall be so remedied within such 10-day period, and (iii)
such defect or defects are in fact so remedied within such 10-day
period: and provided, further, that notwithstanding anything to the
contrary in this subsection (f), any reduction in the maximum
amount of any such Guarantee in accordance with Article V shall not
be an Event of Default hereunder.
If one or more Events of Default shall occur and be continuing with
respect to Debt Securities then Outstanding of any series, then, and in each
and every such case, either the Trustee, by notice in writing to the Company,
or the holders of not less than 25% in aggregate principal amount of the Debt
Securities then Outstanding of such series, by notice in writing to the
Company and to the Trustee, may declare the principal amount (or, if the Debt
Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of the Debt
Securities of such series) of all Debt Securities of such series and/or such
other amount or amounts as the Debt Securities or supplemental indenture with
respect to such series may provide, if not already due and payable, to be
immediately due and payable; and upon any such declaration all Debt
Securities of such series shall become and be immediately due and payable,
anything in this Indenture or in any of the Debt Securities of such series
contained to the contrary notwithstanding. This provision, however, is
subject to the condition that if, at any time after the principal of (and/or
such other specified amount on) the Debt Securities of such series shall so
become due and payable, and before any judgement or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Debt Securities of such
series and the principal of (and/or such other specified amount) and premium,
if any, on any and all Debt Securities of such series which shall have become
due otherwise than by acceleration, with interest on such principal (and/or
such other specified amount) and premium, if any, and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest, at the rate specified in the Debt Securities of such
series (or, if no such rate is specified, at the rate borne by the Debt
Securities of such series), to the date of such payment or deposit, and the
reasonable compensation and expenses of the Trustee, and any and all defaults
under this Indenture with respect to the Debt Securities of such series,
other than the nonpayment of principal of (and/or such other specified
amount) or premium, if any, and accrued interest on Debt Securities of such
series which shall have become due by acceleration, shall have been remedied,
then and in every such case the Trustee shall, upon written request or
consent of the holders of a majority in aggregate principal amount of the
Debt Securities then Outstanding of such series delivered to the Company and
to the Trustee, waive such default and its consequences and rescind or annul
such declaration and its consequences, but no such waiver, rescission or
annulment shall extend to or affect any subsequent default, or impair any
right consequent thereon.
For all purposes under this Indenture, if the portion of the principal
amount as may be specified in the terms of any Original Issue Discount
Securities shall have been accelerated and declared due and payable pursuant
to the provisions hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, payment of such portion of the
principal amount thereof, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
SECTION 7.2. Covenant of Company to pay to Trustee whole amount due on
default in payment of Principal or interest - Trustee may recover judgment
for whole amount due - application of moneys received by the Trustee. In
case the Company or any Guarantor shall commit an Event of Default with
respect to the Debt Securities of any series described in Section 7.1(a) or
(b) or any Guarantee, then, upon demand of the Trustee, the Company and the
Guarantors shall pay to the Trustee, for the benefit of the holders of the
Debt Securities then Outstanding of such series, the whole amount which then
shall have become due on all such Debt Securities of such series for
principal, premium, if any, and interest, with interest on the overdue
principal and premium, if any, and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue installments of
interest, at the rate specified in the Debt Securities of such series (or, if
no such rate is specified, at the rate borne by the Debt Securities of such
series), and in addition thereto, such additional amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, liabilities, disbursements and advances of
the Trustee, any predecessor Trustee, their agents and counsel. In case the
Company or the Guarantors shall pay the same in accordance with the
provisions of this Section 7.2 and, prior to such payment neither the Trustee
nor the holders of the Debt Securities then Outstanding of such series shall
have taken any steps to begin enforcing their rights under this Indenture and
so long as no additional Event of Default with respect to the Debt Securities
of such series shall have occurred, from and after such payment, the Event of
Default giving rise to the demand by the Trustee pursuant to this Section 7.2
shall be deemed to be no longer continuing and shall be deemed to have
thereupon been remedied, cured or waived without further action upon the part
of either the Trustee or any of the holders of Debt Securities. In case the
Company or the Guarantors shall fail to pay the same forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute any judicial proceedings at law or in equity for the collection of
the sums so due and unpaid and may prosecute such proceedings to judgment or
final decree, and may enforce the same against the Company or the Guarantors
or any other obligor upon the Debt Securities of such series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or the Guarantors or any other obligor upon the
Debt Securities of such series, wherever situated. The right of the Trustee
to recover such judgment shall not be affected by the exercise of any other
right, power or remedy for the enforcement of the provisions of this
Indenture.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, the Guarantors or any other
obligor upon the Debt Securities or the property of the Company, the
Guarantors or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of any 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 to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of the
Debt Securities of any series for which it serves as Trustee 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, any
predecessor Trustee, their agents and counsel) and of the holders of Debt
Securities of such series allowed in such judicial proceeding, and to receive
payment of or on account of such claims and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any judicial
proceeding is hereby irrevocably authorized and instructed by each of the
holders of Debt Securities of such series to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of
such payments directly to the holders of Debt Securities of such series, to
pay to the Trustee any amount due it or any predecessor Trustee, for
compensation and expenses, including counsel fees incurred up to the date of
such distribution. Nothing contained in this Indenture shall be deemed to
give to the Trustee any right to accept or consent to any plan of
reorganization, arrangement, adjustment or composition affecting the holders
of Debt Securities or the rights of any holder of Debt Securities, or to
authorize the Trustee to vote in respect of the claim of any holder of Debt
Securities in any such proceeding; provided, however, that the Trustee may,
on behalf of the holders of Debt Securities, vote for the election of a
trustee in bankruptcy or similar official and may be a member of any
creditors' committee.
Any moneys or property received by the Trustee under this Section 7.2
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys or property on
account of principal, premium, if any, or interest, upon presentation of the
several Debt Securities of the series in respect of which such moneys were
received, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
First: To the payment of costs and expenses of collections, and
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all advances made and expenses and liabilities incurred by
the Trustee, except as a result of its negligence or bad faith and all
other amounts owing to the Trustee or any predecessor Trustee pursuant
to Section 11.2 hereof;
Second: In case the principal of the Outstanding Debt Securities
in respect of which such moneys were received shall not have become due
and be unpaid, to the payment of interest on such Debt Securities, in
the order of the maturity of the installments of such interest, with
interest (so far as may be lawful) upon the overdue installments of
interest at the rate specified in such Debt Securities (or, if no such
rate is specified, at the rate borne by the Debt Securities of such
series), such payments to be made ratably to the persons entitled
thereto;
Third: In case the principal of the Outstanding Debt Securities in
respect of which such moneys were received and/or such other amount or
amounts as the Debt Securities or supplemental indenture with respect to
such series shall provide, shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon
such Debt Securities for principal (and/or such other specified amount),
premium, if any, and interest, with interest on the overdue principal
(and/or such other specified amount), premium, if any, and (so far as
may be lawful) upon overdue installments of interest, at the rate
specified in such Debt Securities (or, if no such rate is specified, at
the rate borne by the Debt Securities of such series), and in case such
moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon such Debt Securities, then to the payment of such principal
(and/or such other specified amount), premium, if any, and interest,
with interest on the overdue principal (and/or such other specified
amount), premium, if any, and (so far as may be lawful) upon overdue
installments of interest, at the rate specified in such Debt Securities
(or, if no such rate is specified, at the rate borne by the Debt
Securities of such series), without preference or priority of principal
(and/or such other specified amount) and premium, if any, over interest,
or of interest over principal (and/or specified amount) and premium, if
any, or of any installment of interest over any other installment of
interest, or of any such Debt Security over any other such Debt
Security, ratably to the aggregate of such principal (and/or such other
specified amount), premium, if any, and accrued and unpaid interest; and
Fourth: To the payment of the remainder, if any, to the Company,
its successors or assigns, or to whomever may be so lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 7.3. Trustee may enforce rights of action without possession of
Debt Securities. All rights of action under this Indenture or any of the
Debt Securities Outstanding of any series hereunder enforceable by the
Trustee may be enforced by the Trustee without the possession of any of the
Debt Securities or the production thereof at the trial or other proceedings
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought for the ratable benefit of the holders of the Debt
Securities with respect to which the rights are being exercised, subject to
the provisions of this Indenture.
SECTION 7.4. Delays or omissions not to impair any rights or powers
accruing upon default. No delay or omission of the Trustee or of the holders
of Debt Securities to exercise any rights or powers accruing upon any default
which shall not have been remedied shall impair any such right or power, or
shall be construed to be a waiver of any such default or acquiescence
therein; and every power and remedy given by this Article VII to the Trustee
and the holders of the Debt Securities of any series may be exercised from
time to time and as often as may be deemed expedient by the Trustee or by the
holders of the Debt Securities of such series.
SECTION 7.5. In Event of Default Trustee may protect and enforce its
rights by appropriate proceedings - holders of majority in aggregate
Principal amount of Debt Securities of a series may waive default. If any
one or more Events of Default shall happen and be continuing, the Trustee
may, in its discretion, proceed to protect and enforce the rights vested in
it by this Indenture by such appropriate judicial proceedings as the Trustee,
being advised by its counsel, shall deem most effectual to protect and
enforce any of said rights, either by suit in equity or by action at law or
by proceeding in bankruptcy or otherwise, whether for the specific
performance of any covenant or agreement contained in this Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
Provided the Debt Securities of any series shall not then be due and
payable by reason of a declaration pursuant to Section 7.1 hereof, the
holders of a majority in aggregate principal amount of the Debt Securities of
such series then Outstanding may on behalf of the holders of all of the Debt
Securities of such series waive by written notice any past default hereunder
and its consequences, except a default in the payment of interest on or
principal and premium, if any, of any of the Debt Securities of such series.
In the case of any such waiver, the Company, the Guarantors, the Trustee and
the holders of the Debt Securities of such series shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 7.6. holders of majority in aggregate principal amount of Debt
Securities of any series may direct exercise of remedies. The holders of a
majority in aggregate principal amount of the Debt Securities then
Outstanding of any series shall have the right, by an instrument in writing
executed and delivered to the Trustee, to direct the time, method and place
of conducting any proceedings for any remedy available to the Trustee, or of
exercising any power or trust conferred upon the Trustee under this
Indenture, with respect to the Debt Securities of such series; provided,
however, that subject to the provisions of Section 11.1 of this Indenture,
the Trustee shall have the right to decline to follow any such direction if
the Trustee, being advised by counsel, determines that the action or
proceedings so directed may not lawfully be taken or if the Trustee in good
faith shall, by Responsible Officers, determine that the action or
proceedings so directed would involve the Trustee in personal liability, or
would be unduly prejudicial to the holders of the Debt Securities of such
series not joining in such direction, it being understood that the Trustee
(subject to Section 11.1) shall have no duty to ascertain whether or not such
actions or forebearances are unduly prejudicial to such holders, and the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 7.7. Limitation on suits by holders of Debt Securities. No
holder of any Debt Security of any series shall have the right to institute
any suit, action or proceeding, in equity or at law for the execution of any
trust or power hereof, or for the enforcement of any other remedy under or
upon this Indenture or the Debt Securities of such series, unless the holders
of a majority in aggregate principal amount of the Debt Securities then
Outstanding of such series shall have made written request upon the Trustee
and shall have afforded to it a reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such suit, action or
proceeding in its own name, as Trustee hereunder, and shall have offered to
the Trustee reasonable indemnity against the costs, expenses and liabilities
to be incurred therein or thereby, and the Trustee shall have refused or
neglected to comply with such request for 60 days after its receipt of such
request and no direction inconsistent with such request shall have been given
to the Trustee pursuant to Section 7.6; it being understood and intended that
no one or more holders of Debt Securities of any series shall have any right
under this Indenture or under the Debt Securities, by his or their action, to
enforce any right hereunder except in the manner herein provided, and that
all proceedings hereunder, at law or in equity, shall be instituted, had and
maintained in the manner herein provided and for the ratable benefit of all
holders of the Debt Securities of such series. Notwithstanding any provision
of this Indenture to the contrary, the right, which is absolute and
unconditional, of any holder of Debt Securities to receive the payment of the
principal of, premium, if any, and interest on his Debt Securities at and
after the respective due dates (including maturity by call for redemption,
through any sinking fund, declaration unless annulled pursuant to Section 7.1
hereof, or otherwise), of such principal, premium, if any, or interest, or
the right, which is also absolute and unconditional, of any holder of Debt
Securities to require conversion of his Debt Securities pursuant to Article
XIII hereof if the terms of such Debt Securities provide for convertibility
pursuant to Section 2.2, or the right to institute suit for the enforcement
of any such payment at or after such due dates or of such right to convert,
shall not be impaired or affected without the consent of such holder, and the
obligation of the Company, which is also absolute and unconditional, to pay
the principal of, premium, if any, and interest on each of the Debt
Securities to the respective holders thereof at the times and places in the
Debt Securities expressed shall not be impaired or affected.
Notwithstanding anything to the contrary contained in this Section 7.7,
the parties to this Indenture and the holders of Debt Securities agree as
follows:
Any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and 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; provided, however, that the provisions
of this paragraph shall not apply to any suit instituted, directly or through
an agent or agents, by the Trustee, to any suit instituted by any holder of
Debt Securities of any series, or group of holders of Debt Securities of any
series, holding in the aggregate more than 10% in aggregate principal amount
of the Debt Securities then Outstanding of such series or to any suit
instituted by any holder of Debt Securities of any series for the enforcement
of the payment of the principal of, premium, if any, or interest on, any Debt
Security of such series at or after the respective due dates of such
principal, premium, if any, or interest expressed in his Debt Security of
such series.
SECTION 7.8. No Debt Securities owned or held by, for the account of or
for the benefit of the Company to be deemed Outstanding for purpose of
payment or distribution. No Debt Securities owned or held by, for the
account of or for the benefit of the Company or any Affiliate (other than
Debt Securities pledged in good faith which would be deemed Outstanding under
the provisions of Section 3.3) shall be deemed Outstanding for the purpose of
any payment or distribution provided for in this Article VII.
SECTION 7.9. Company and Trustee restored to former position on
discontinuance or abandonment of proceedings. If the Trustee shall have
proceeded to enforce any right under this Indenture with respect to the Debt
Securities of any series, and such proceedings shall have been discontinued
or abandoned because of waiver, or for any other reason, or shall have been
determined adversely to the Trustee, then, and in any such case, the Company,
the Guarantors, the Trustee and the holders of Debt Securities of such series
shall each be restored to their former positions and rights hereunder, and
all rights, remedies and powers of the Trustee shall continue as though no
such proceeding had been taken.
ARTICLE VIII
EVIDENCE OF ACTION BY HOLDERS OF DEBT SECURITIES
SECTION 8.1. Evidence of action by holders of Debt Securities. Any
demand, request, consent, proxy or other instrument which this Indenture may
require or permit to be signed and executed by the holders of Debt Securities
of any series may be in any number of concurrent instruments of similar
tenor, and may be signed or executed by such holders of Debt Securities in
person or by an attorney duly authorized in writing. Proof of the execution
of any such demand, request, consent, proxy or other instrument, or of a
writing appointing any such attorney, shall be sufficient for any purpose of
this Indenture if made in the following manner: the fact and date of the
execution by any person of such demand, request, consent, proxy or other
instrument or writing may be proved by the certificate of any notary public,
or other officer authorized to take acknowledgments of deeds to be recorded
in any state or country, that the person signing such request or other
instrument or writing acknowledged to him the execution thereof, or by an
affidavit of a witness of such execution. 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, or by a trustee or
other fiduciary, such certificate or affidavit shall also constitute
sufficient proof of his authority. The Trustee may nevertheless in its
discretion accept such other proof or require further proof of any matter
referred to in this Section 8.1 as it shall deem reasonable. The ownership
of Debt Securities shall be proved by the registry books or by a certificate
of the registrar thereof.
The Trustee shall not be bound to recognize any person as a holder of
Debt Securities of any series unless and until his title to the Debt
Securities of such series held by him is proved in the manner in this Article
VIII provided.
Any demand, request, discretion, waiver, consent, vote or other action
of the holder of any series of Debt Securities shall be conclusive and shall
bind all future holders of the same Debt Security and of any series of Debt
Securities issued in exchange or substitution therefor irrespective of
whether or not any notation in regard thereto is made upon such Debt
Security. Any such holder, however, may revoke the consent as to his Debt
Security or portion thereof. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment,
supplement, waiver or other action becomes effective. An amendment,
supplement, waiver or other action shall become effective on receipt by the
Trustee of written consents from the holders of Debt Securities of the
requisite percentage in aggregate principal amount of the Outstanding Debt
Securities of the relevant series. After an amendment, supplement, waiver or
other action becomes effective, it shall bind every holder of Debt Securities
of each series of Debt Securities so affected.
The Company or the Trustee, as applicable, may set a date for the
purpose of determining the holders of Debt Securities entitled to consent,
vote or take any other action referred to in this Section 8.1, which date
shall be not less than 10 days nor more than 60 days prior to the taking of
the consent, vote or other action.
ARTICLE IX
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 9.1. Immunity of incorporators, stockholders, officers,
directors and employees. No recourse shall be had for the payment of the
principal of, premium, if any, or interest on any series of Debt Securities
or for any claim based thereon or otherwise in any manner in respect thereof,
or in respect of this Indenture, to or against any subsidiary, incorporator,
stockholder, officer, director or employee, as such, past, present or future,
of the Company or any subsidiary, incorporator, stockholder, officer,
director or employee, as such, past, present or future, of any predecessor or
successor corporation, partnership or limited liability company either
directly or through the Company or such predecessor or successor corporation,
partnership or limited liability company, whether by virtue of any
constitutional provision or statute or rule of law, or by the enforcement of
any assessment or penalty, or in any other manner, all such liability being
expressly waived and released by the acceptance of any series of Debt
Securities and as part of the consideration for the issue thereof.
ARTICLE X
MERGER, CONSOLIDATION, SALE OR LEASE
SECTION 10.1. Documents required to be filed with the Trustee upon
consolidation, merger, sale, transfer or lease - execution of supplemental
indentures - acts of successor corporation. Nothing in this Indenture or in
the Debt Securities shall prevent any consolidation or merger of the Company
or the Guarantors with or into any other corporation, partnership or limited
liability company, or any consolidation or merger of any other corporation,
partnership or limited liability company with or into the Company or any
Guarantor, or any sale, transfer or lease of all or substantially all of the
property and assets of the Company or any Guarantor to any other corporation,
partnership or limited liability company lawfully entitled to acquire the
same; provided, however, and the Company and the Guarantors hereby covenant
and agree, that any consolidation or merger of the Company or the Guarantors
with or into any other corporation, partnership or limited liability company
or the sale, transfer or lease of all or substantially all of the property
and assets of the Company and its subsidiaries on a consolidated basis shall
be upon the condition that (a) the due and punctual payment of the principal
of, premium, if any, and interest on all the Debt Securities according to
their tenor, and the due and punctual performance and observance of all the
terms, covenants and conditions of this Indenture to be kept or performed by
the Company and the Guarantors shall, by an indenture supplemental hereto
complying with the provisions of Section 12.1, executed and delivered to the
Trustee, be expressly assumed by the corporation, partnership or limited
liability company (other than the Company or the Guarantors) formed by or
resulting from any such consolidation or merger, or which shall have received
the transfer or lease of all or substantially all of the property and assets
of the Company and its subsidiaries on a consolidated basis, just as fully
and effectually as if such successor corporation, partnership or limited
liability company had been an original party hereto; and (b) the Company, the
Guarantor or such successor corporation, partnership or limited liability
company, as the case may be, shall not, immediately after such consolidation,
merger, sale, transfer or lease be in default in the performance of any such
covenant or condition. Thereafter, unless otherwise specified pursuant to
Section 2.2 for the Debt Securities of any series, all obligations of the
predecessor corporation, partnership or limited liability company under the
Debt Securities of such series shall terminate. In the event of any such
sale, transfer or lease, the predecessor Company or the Guarantor may be
dissolved, wound up and liquidated at any time thereafter.
Every such successor corporation, partnership or limited liability
company, upon executing an indenture supplemental hereto as provided in this
Section 10.1 in form satisfactory to the Trustee, shall succeed to and be
substituted for the Company and the Guarantors, as the case may be, with the
same effect as if it had been named herein as the Company and the Guarantors;
and any order, certificate or resolution of the Board or officers of the
Company or the a Guarantor provided for in this Indenture may be made by like
officials of such successor corporation, partnership or limited liability
company. Such successor corporation, partnership or limited liability
company may thereupon cause to be signed, either in its own name or in the
name of the Company or the Guarantors, with such suitable reference, if any,
to such consolidation, merger, sale, transfer or lease as may be required by
the Trustee, any or all of the Debt Securities or Guarantees which shall not
theretofore have been signed by the Company or the Guarantors and
authenticated by the Trustee or any Authenticating Agent; and upon the
written order of such successor corporation, partnership or limited liability
company in lieu of the Company or any Guarantor, as the case may be, signed
by the President or any Vice President (regardless of Vice Presidential
designation) and the Chief Financial Officer, Treasurer or any Assistant
Treasurer of such successor corporation, partnership or limited liability
company, and subject to all the terms, conditions and restrictions herein
prescribed with respect to the authentication and delivery of the Debt
Securities and Guarantees, the Trustee or any Authenticating Agent shall
authenticate and deliver any and all Debt Securities and Guarantees which
shall have been previously signed by the proper officers of the Company and
the Guarantors and delivered to the Trustee or any Authenticating Agent for
authentication and any of such Debt Securities and Guarantees which such
successor corporation, partnership or limited liability company shall
thereafter, in accordance with the provisions of this Indenture, cause to be
signed and delivered to the Trustee or any Authenticating Agent for such
purpose. All Debt Securities of any series so authenticated and delivered
shall in all respects have the same rank as the Debt Securities of such
series theretofore or thereafter authenticated and delivered in accordance
with the terms of this Indenture.
SECTION 10.2. Trustee may rely upon Opinion of Counsel. The Trustee
may receive and shall, subject to the provisions of Section 11.1 of this
Indenture, be fully protected in relying upon an Officers' Certificate and
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed under the foregoing Section 10.1 complies with the foregoing
conditions and provisions of this Article X.
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.1. Acceptance of Trust - responsibilities of Trustee. (a)
The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture or in the Trust Indenture Act of 1939, and no
implied covenants or conditions shall be read into this Indenture against the
Trustee. In case an Event of Default with respect to the Debt Securities of
a particular series has occurred (but only during the continuance thereof),
the Trustee shall exercise with respect to the Debt Securities of such series
such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee pursuant to any provision of this Indenture, shall examine them to
determine whether they conform to the requirements of this Indenture.
(b) 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
(i) prior to the occurrence of an Event of Default with
respect to the Debt Securities of any series hereunder and after
the curing or waiving of all Events of Default with respect to the
Debt Securities of such series which may have occurred, the Trustee
shall not be liable with respect to the Debt Securities of such
series except for the performance of 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, but the duties and obligations of the Trustee with respect
to the Debt Securities of such series, prior to the occurrence of
an Event of Default with respect to the Debt Securities of such
series and after the curing or waiving of all Events of Default
with respect to the Debt Securities of such series which may have
occurred, shall be determined solely by the express provisions of
this Indenture;
(ii) Subject to the limitations contained in subsection (a)
of this Section 11.1, prior to the occurrence of an Event of
Default with respect to the Debt Securities of any series hereunder
and after the curing or waiving of all Events of Default with
respect to the Debt Securities of such series which may have
occurred, and in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed herein,
upon certificates or opinions conforming to the requirements of
this Indenture;
(iii) the Trustee shall not be personally liable for any
error of judgment made in good faith by a Responsible Officer or
Officers of the Trustee unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iv) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the holders of not less
than a majority in aggregate principal amount of the Debt
Securities then Outstanding of any series relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to
the Debt Securities of such series.
(c) Subject to the limitations contained in subsections (a) and (b) of
this Section 11.1, the recitals contained herein and in the Debt Securities
(except in the Trustee's certificate of authentication) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Debt Securities except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture and to perform its obligations hereunder.
(d) Subject to the limitations contained in subsections (a) and (b) of
this Section 11.1:
(i) the Trustee may rely and shall be protected in acting or
refraining from action upon any resolution, certificate, opinion,
notice, consent, request, order, appraisal, report, bond or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) before the Trustee acts or refrains from acting, 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 accordance with such advice or
Opinion of Counsel;
(iii) whenever in the administration of the trusts of this
Indenture, prior to an Event of Default hereunder and after the
curing or waiving of all Events of Default which may have occurred,
the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate shall be full
warrant to the Trustee for any action taken, suffered or omitted by
it under the provisions of this Indenture upon the faith thereof;
(iv) the Trustee shall be under no obligation to exercise any
of the trusts or powers hereof at the request, order or direction
of any of the holders of Debt Securities, pursuant to the
provisions of this Indenture, unless such holders of Debt
Securities shall have offered to the Trustee reasonable indemnity
against all the costs, expenses and liabilities which might be
incurred therein;
(v) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or power conferred upon it by
this Indenture;
(vi) prior to the occurrence of an Event of Default with
respect to the Debt Securities of any series hereunder and after
the curing or waiving of all Events of Default with respect to the
Debt Securities of such series which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, opinion, notice,
consent, request, order, appraisal, report, bond or other document
or instrument concerning such series, unless requested in writing
to do so by the holders of not less than a majority in aggregate
principal amount of the Debt Securities then Outstanding of such
series; provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the
opinion of the Trustee (subject to the limitations contained in
subsections (a) and (b) of this Section 11.1), not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity
against such expense or liability as a condition to so proceeding;
and provided, further, that nothing in this subdivision (d)(vi)
shall require the Trustee to give the holders of Debt Securities
any notice other than that required by Section 11.3 hereof. The
reasonable expense of every such investigation shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the Company
upon demand;
(vii) the Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties
hereunder;
(viii) except for (i) a default under Sections 7.1(a) or (b)
hereof, or (ii) any other event which the Trustee has "actual
knowledge" and which event, with the giving of notice or the
passage of time or both, would constitute an Event of Default under
this Indenture, the Trustee shall not be deemed to have notice of
any default or Event of Default unless specifically notified in
writing of such event by the Company or the holders of not less
than 25% aggregate principal amount of the Debt Securities then
outstanding; as used herein, the term "actual knowledge" means the
actual fact or statement of knowing, without any duty to make any
investigation with regard thereto;
(ix) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(x) none of the provisions of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any
personal financial liability in the performance of any 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.
SECTION 11.2. Trustee to be entitled to compensation - Trustee not to
be accountable for application of proceeds - moneys held by Trustee to be
trust funds. The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for services rendered by it in
the execution of the trusts hereby created, and shall also be entitled to
payment of reasonable expenses and disbursements actually made or incurred
hereunder, including the reasonable fees and expenses of counsel, accountants
and of all persons not regularly in its employ, and all taxes which may have
been assessed against the Trustee as such or any funds on deposit with the
Trustee. The Company also agrees to indemnify each of the Trustee and any
predecessor Trustee for and hold it harmless against loss, liability or
expense incurred arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder,
including the cost and expenses of defending itself against any claim of
liability in the premises, except to the extent that such loss, liability or
expense is incurred due to the negligence or willful misconduct of the
Trustee or predecessor Trustee. If any property other than cash shall at any
time be subject to a lien in favor of the holders of Debt Securities, the
Trustee, if and to the extent authorized by a receivership or bankruptcy
court of competent jurisdiction or by the supplemental instrument subjecting
such property to such lien, shall be entitled to make advances for the
purpose of preserving such property or of discharging tax liens or other
prior liens or encumbrances thereon. The obligations of the Company under
this Section 11.2 to compensate the Trustee and to indemnify, pay or
reimburse the Trustee or any predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge or any other termination pursuant to
any Bankruptcy Law hereof. Such additional indebtedness shall be secured by
a lien prior to that of the Debt Securities of all series with respect to
which the Trustee acts as Trustee upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit
of the holders of particular Debt Securities.
The Trustee shall not be accountable for the use or application by the
Company of any Debt Securities authenticated and delivered hereunder or of
the proceeds of such Debt Securities, or for the use or application of any
moneys paid over by the Trustee in accordance with any provision of this
Indenture, or for the use or application of any moneys received by any paying
agent.
All moneys received by the Trustee in trust under or pursuant to any
provision of this Indenture shall constitute trust funds for the purposes for
which they were paid or were held, but need not be segregated in any manner
from any other moneys and may be deposited by the Trustee, under such
conditions as may be prescribed by law, in its general banking department,
and the Trustee shall not be liable for any interest thereon, except as
otherwise agreed with the Company.
The parties hereto, and the holders of Debt Securities by their
acceptance of their Debt Securities, hereby agree, that when the Trustee
incurs expenses and renders services after an Event of Default occurs, such
expenses and the compensation for such services are intended by the holders
of the Debt Securities and Company to constitute expenses of administration
under any Bankruptcy Law.
SECTION 11.3. Trustee to give holders of Debt Securities notice of
default. The Trustee shall give to the holders of Debt Securities of any
series notice of the happening of all defaults with respect to the Debt
Securities of such series known to it, within 90 days after the occurrence
thereof unless such defaults shall have been cured before the giving of such
notice; provided, however, that, except in the case of a default resulting
from the failure to make any payment of principal of, premium, if any, or
interest on the Debt Securities of any series, or in the payment of any
mandatory sinking fund installment with respect to the Debt Securities of
such series, the Trustee may withhold the giving of 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 of such series. For the purpose of this Section
11.3, the term "DEFAULT" means any event which is, or after notice or lapse
of time or both would become, an Event of Default. Such notice shall be
given to the holders of Debt Securities of such series in the manner and to
the extent provided in subsection (c) of Section 11.10.
SECTION 11.4. Trustee acquiring conflicting interest must eliminate it
or resign. Reference is made to Section 310(b) of the Trust Indenture Act of
1939, as amended. There shall be excluded under Section 310(b)(1) thereof
this Indenture with respect to the Debt Securities of any series other than
the Debt Securities of the first series.
SECTION 11.5. Eligibility of Trustee. There shall at all times be a
corporate Trustee under this Indenture which shall be a bank or trust company
organized and doing business under the laws of the United States or of any
State or the District of Columbia and having a combined capital and surplus
of not less than $50,000,000 which is authorized under the laws of its
jurisdiction of incorporation to exercise corporate trust powers and is
subject to supervision or examination by Federal, State or District of
Columbia authority and which has an office or agency in New York, New York.
If the Trustee publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, the combined capital of the Trustee shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If the Trustee shall at any time cease to meet the
foregoing standards of eligibility, then such Trustee shall resign
immediately in the manner and with the effect specified in Section 11.6.
SECTION 11.6. Resignation or removal of Trustee. (a) Subject to the
limitations contained in subsection (d) of this Section 11.6, the Trustee may
resign and be discharged from the trust hereby created with respect to the
Debt Securities of one or more series by giving notice thereof to the Company
and by giving notice thereof to the holders of Debt Securities of such
series, in the manner and to the extent provided in subsection (c) of Section
11.10. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee or trustees (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 with respect to which the resigning trustee has
resigned and that at any time there shall be only one trustee with respect to
the Debt Securities of any particular series) by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 60 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any holder of
Debt Securities of such series who has been a bona fide holder of a Debt
Security or Debt Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 11.4 with respect to the Debt Securities of any series after
written request therefor by the Company or by any holder of Debt
Securities of such series who has been a bona fide holder of a Debt
Security or Debt Securities of such series for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 11.5 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 of Debt Securities; 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
then, in any such case, the Company may remove the Trustee with respect to
all Debt Securities of such series and appoint a duly qualified successor
trustee by written instrument, in duplicate, executed by order of the Board
of Directors of the Company, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee so appointed,
or, subject to the provisions of Section 7.7, any holder of Debt Securities
who has been a bona fide holder of a Debt Security or Debt Securities of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Debt Securities of such series and
the appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a duly qualified successor trustee with respect to the Debt
Securities of such series.
(c) The holders of a majority in aggregate principal amount of the Debt
Securities then Outstanding of any series may at any time remove the Trustee
and appoint a duly qualified successor trustee with respect to such series by
delivery to the Trustee so removed, to the successor trustee and to the
Company of the evidence provided for in Section 8.1 of the action in that
regard taken by holders of Debt Securities.
(d) Any resignation or removal of the Trustee and any appointment of a
duly qualified successor trustee pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 11.7.
SECTION 11.7. Acceptance by successor Trustee.
(a) In case of the appointment hereunder of a successor trustee with
respect to all Debt Securities, every duly qualified successor trustee so
appointed under any of the methods herein provided shall execute, acknowledge
and deliver to its predecessor trustee and to the Company an instrument in
writing accepting such appointment hereunder and thereupon such successor
trustee, without any further act, deed or conveyance, shall become fully
vested with the rights, powers, trusts, duties and obligations of its
predecessor in the trust hereunder with like effect as if originally named as
Trustee herein. The predecessor trustee shall, nevertheless, at the written
request of the successor trustee, pay over to the successor trustee all
moneys at the time held by it herein; and the Company and the predecessor
trustee upon payment or provision therefor of any amounts then due the
predecessor trustee pursuant to the provisions of Section 11.2, shall execute
and deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, trusts, duties and obligations. The Company
shall promptly give notice of the appointment of such successor trustee to
the holders of Debt Securities in the manner and to the extent provided in
subsection (c) of Section 11.10.
(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 predecessor trustee and each successor trustee with respect to
the Debt Securities of such series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (i) 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 predecessor trustee
with respect to the Debt Securities of such series to which the appointment
of such successor trustee relates, (ii) if the predecessor trustee is not
retiring with respect to all Debt Securities of such series, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor trustee with respect
to the Debt Securities of such series as to which the predecessor trustee is
not retiring shall continue to be vested in the predecessor trustee, and
(iii) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the predecessor
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 predecessor
trustee with respect to the Debt Securities of such series to which the
appointment of such successor trustee relates; but, on request of the Company
or any successor trustee, such predecessor trustee upon payment of its
charges shall duly assign, transfer and deliver to such successor trustee all
property and money held by such predecessor trustee hereunder with respect to
the Debt Securities of such series to which the appointment of such successor
trustee relates. Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, powers and trusts
referred to in this subsection (b) of this Section.
SECTION 11.8. Successor to Trustee by merger or consolidation, etc.
Any corporation or national banking association into which the Trustee may be
merged, or with which it may be consolidated, or to which the Trustee
transfers all or substantially all of its corporate trust assets, or any
corporation or national banking association resulting from any merger or
consolidation or conversion to which the Trustee shall be a party, shall be
the successor trustee under this Indenture without the execution or filing of
any instruments or any further act on the part of any of the parties hereto.
In case at the time such successor trustee shall succeed to the trusts
created by this Indenture any of the Debt Securities shall have been
authenticated but not delivered, any such successor trustee may adopt the
certificate of authentication of its predecessor trustee, and deliver such
Debt Securities so authenticated; and in case at that time any of the Debt
Securities shall not have been authenticated, any successor trustee may
authenticate such Debt Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Debt
Securities or in this Indenture provided that the certificate of
authentication of the Trustee shall have; provided, however, that the right
to adopt the certificate of authentication of any predecessor trustee or
authenticate Debt Securities in the name of any predecessor trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 11.9. Limitations on right of Trustee as a creditor to obtain
payment of certain claims. Reference is made to Section 311 of the Trust
Indenture Act of 1939, as amended, for purposes of which the following terms
shall have the following meanings:
(i) the term "CASH TRANSACTION" shall mean 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 or bankers and payable
upon demand; and
(ii) the term "SELF-LIQUIDATING PAPER" shall mean 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.
SECTION 11.10. Trustee to make annual report to holders of Debt
Securities - Trustee to make other reports to holders of Debt Securities -
holders of Debt Securities to whom reports to be transmitted. (a) The
Trustee shall, so long as any Debt Securities are Outstanding of any series
with respect to which it acts as Trustee, transmit to the holders of Debt
Securities of such series, any report which is required to be transmitted to
the holders of Debt Securities of such series pursuant to Section 313(a) of
the Trust Indenture Act of 1939, as amended.
(b) The Trustee shall, so long as any Debt Securities of any series
with respect to which it acts as Trustee shall be Outstanding, also transmit
to the holders of Debt Securities of such series, as hereinafter provided,
within the times hereinafter specified, 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 the
provisions of subsection (a) of this Section 11.10 (or if no such report has
been so transmitted, since the date of the execution of this Indenture), 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 the Trustee, as such, and which it has not previously reported
pursuant to this subsection (b), if such advances remaining unpaid at any
time aggregate more than 10% of the principal amount of the Debt Securities
of such series then Outstanding, such report to be so transmitted within 90
days after such time.
(c) All reports required by this Section 11.10, and all other reports
or notices which are required by any other provision of this Indenture to be
transmitted in accordance with the provisions of this Section 11.10, shall be
transmitted by mail: (i) to all registered holders of Debt Securities of
such series, as the names and addresses of such holders appear upon the Debt
Security register; (ii) to such holders of Debt Securities of such series as
have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and (iii) except in the case of
reports pursuant to subsection (b) of this Section 11.10, to all holders of
Debt Securities of such series whose names and addresses have been furnished
to or received by the Trustee pursuant to Section 4.6(d).
(d) The Trustee shall, at the time of the transmission to the holders
of Debt Securities of any report or notice pursuant to this Section 11.10,
file a copy thereof with the Securities and Exchange commission. The Company
will notify the Trustee if and when the Debt Securities of any series become
listed on any stock exchange and the Trustee will thereafter file a copy of
any such report or notice with such stock exchange.
SECTION 11.11. Preservation of information by Trustee - Trustee to give
certain information to holders of Debt Securities upon application. The
Trustee shall preserve, in as current a form as is reasonably practicable,
all information furnished it pursuant to Section 4.6(d) hereof or received by
it as Debt Security registrar hereunder. The Trustee may destroy such
information upon receipt of new information updating information previously
furnished.
Within five Business days after receipt by the Trustee or its designee
of a written application by any three or more holders of Debt Securities
stating that the applicants desire to communicate with other holders of Debt
Securities with respect to their rights under this Indenture or under the
Debt Securities, and accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, and by reasonable
proof that each such applicant has owned a Debt Security or Debt Securities
for a period of at least six months preceding such application, the Trustee
or its designee shall, at its election, either (a) afford to such applicants
access to all information so furnished to or received by the Trustee or its
designee and not destroyed pursuant to the provisions of this Section 11.11,
or (b) inform such applicants as to the approximate number of holders of Debt
Securities according to the most recent information so furnished to or
received by the Trustee or its designee, and as to the approximate cost of
mailing to the holders of Debt Securities the form of proxy or other
communication, if any, specified in such application. If the Trustee or its
designee shall elect not to afford to such applicants access to such
information, the Trustee or its designee shall, upon the written request of
such applicants, mail to all holders of Debt Securities whose names and
addresses are contained in the then current information filed with the
Trustee or its designee as aforesaid copies of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee or its designee of the material to be mailed
and the payment, or provision for the payment, of the reasonable expenses of
such mailing, unless within five business days after such tender, the Trustee
or its designee shall mail to such applicants, and file with the Securities
and Exchange Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee or its
designee, such mailing would be contrary to the best interests of the holders
of Debt Securities or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Securities and
Exchange Commission, after granting opportunity for a hearing upon the
objections specified in said written statement and on notice to the Trustee
or its designee, 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 Securities and Exchange Commission shall find, after
notice and opportunity for a hearing, that all objections sustained have been
met and shall enter an order so declaring, the Trustee or its designee shall
mail copies of such material to all such holders of Debt Securities with
reasonable promptness after such determination and the renewal of the
aforesaid tender; otherwise the Trustee or its designee shall be relieved of
any obligation or duty to such applicants respecting their application.
Neither the Company, the Trustee or its designee nor any person acting
as Debt Security registrar or paying agent shall be liable or accountable to
the Company or to any holder of Debt Securities by reason of the disclosure
of any such information as to the names and addresses of holders of Debt
Securities in accordance with the provisions of this Section 11.11,
regardless of the source from which such information was derived, nor by
reason of the mailing of any material pursuant to a request made under this
Section 11.11.
SECTION 11.12. Trustee may hold Debt Securities and otherwise deal with
Company. The Trustee, the Debt Security registrar, any paying agent or any
other agent of the Company in its individual or any other capacity may buy,
own, hold and sell any of the Debt Securities or any other evidences of
indebtedness or other securities, whether heretofore or hereafter created or
issued, of the Company or any subsidiary or Affiliate with the same rights it
would have if it were not Trustee, Debt Security registrar, paying agent or
such other agent; and subject to the provisions of this Article XI, the
Trustee may engage or be interested in any financial or other transaction
with the Company or any subsidiary or Affiliate, including, without
limitation, secured and unsecured loans to the Company or any subsidiary or
Affiliate; and may maintain any and all other general banking and business
relations with the Company and any subsidiary or Affiliate with like effect
and in the same manner and to the same extent as if the Trustee were not a
party to this Indenture; and no implied covenant shall be read into this
Indenture against the Trustee in respect of any such matters.
SECTION 11.13. Trustee may comply with any rule, regulation or order of
the Securities and Exchange Commission. The Trustee may comply in good faith
with any rule, regulation or order of the Securities and Exchange Commission
made pursuant to the terms and provisions of the Trust Indenture Act of 1939
and shall be fully protected in so doing notwithstanding that such rule,
regulation or order may thereafter be amended or rescinded or determined by
judicial or other authority to be invalid for any reason, but nothing herein
contained shall require the Trustee to take any action or omit to take any
action in accordance with such rule, regulation or order, except as is in
this Indenture otherwise required.
SECTION 11.14. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series
of Debt Securities which shall be authorized to act on behalf of the Trustee
to authenticate Debt Securities of such series issued upon exchange,
registration of transfer or partial redemption or partial conversion thereof,
and if the Trustee is required to appoint one or more Authenticating Agents
with respect to any series of Debt Securities, to authenticate Debt
Securities of such series and to take such other actions as are specified in
Sections 2.4, 2.8, 2.11, 5.2 and 13.3, and Debt Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Debt Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent (except in respect of original issue and Section 2.9).
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $1,000,000 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 the
purposes of this Section 11.14, 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 11.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section
11.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of such Authenticating Agent, shall continue to
be an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section 11.14, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice or resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 11.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall
provide notice to the holders of the Debt Securities of the series as to
which the Authenticating Agent will serve as provided in Section 3.9. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section 11.14.
The Trustee agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 11.2.
If an appointment with respect to one or more series is made pursuant to
this Section 11.14, 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 Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Harris Trust and Savings Bank, as Trustee
By:
As Authenticating Agent
By:
Authorized Officer
If all of the Debt Securities of a series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Debt Securities upon original issuance located where the
Company wishes to have Debt Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 3.8 and need not be accompanied
by an Opinion of Counsel), shall appoint in accordance with this Section
11.14 an Authenticating Agent having an office in a place designated by the
Company with respect to such series of Debt Securities.
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.1. Company and Trustee may enter into supplemental indenture
for special purposes. Without the consent of any of the holders of Debt
Securities, the Company, when authorized by resolution of its Board of
Directors, and, upon receipt of an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture, is duly authorized by all necessary corporate action, constitutes
the legal, valid and binding obligation of the Company and is in compliance
with applicable law, the Trustee from time to time and at any time, subject
to the conditions and restrictions in this Indenture contained, may enter
into an indenture or indentures supplemental hereto in form satisfactory to
the Trustee, which thereafter shall form a part hereof, for any one or more
of the following purposes:
(a) to add to the covenants and agreements of the Company and the
Guarantors in this Indenture contained, other covenants and agreements
thereafter to be observed for the benefit of the holders of all or any
series of Debt Securities (and if such covenants and agreements are to
be for the benefit of less than all series of Debt Securities, stating
that such covenants and agreements are expressly being included solely
for the benefit of such series) or to surrender any right or power
herein reserved to or conferred upon the Company or the Guarantors; or
(b) to cure any ambiguity or to cure, correct or supplement any
defect or inconsistent provision contained in this Indenture or in any
supplemental indenture; or
(c) to make such provisions in regard to matters or questions
arising under this Indenture which may be necessary or desirable, or
otherwise change this Indenture in any manner which shall not adversely
affect the interests of the holders of Debt Securities of any series; or
(d) to evidence the succession of another corporation to the
Company or any Guarantor, or successive successions, and the assumption
by the successor corporation of the covenants, agreements and
obligations of the Company or any Guarantor pursuant to Article X and to
provide for the adjustment of conversion rights pursuant to Section
13.7; or
(e) to establish the form or terms of the Debt Securities of any
series as permitted by Sections 2.1 and 2.2; or
(f) to change or eliminate any of the provisions of this
Indenture, provided that, except as otherwise contemplated by Section
2.2(11), any such change or elimination shall become effective only when
there is no Debt Security outstanding of any series created prior
thereto which is entitled to the benefit of such provision; or
(g) 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 in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to provide for
uncertificated Debt Securities in addition to certificated Debt
Securities (so long as any "REGISTRATION-REQUIRED OBLIGATION" within the
meaning of Section 163(f)(2) of the Code is in registered form for
purposes of the Code); or
(h) to amend or supplement any provision contained herein, which
was required to be contained herein in order for this Indenture to be
qualified under the Trust Indenture Act of 1939, if the Trust Indenture
Act of 1939 or regulations thereunder change what is so required to be
included in qualified indentures, in any manner not inconsistent with
what then may be required for such qualification; or
(i) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely
to be applicable to such series); or
(j) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Debt Securities of one or more series any property
or assets; or
(k) to add a Guarantor; or
(l) to add to or change any of the provisions of this Indenture as
contemplated in Section 11.7(b);
and the Company hereby covenants that it will fully perform all the
requirements of any such supplemental indenture which may be in effect from
time to time. Nothing in this Article XII contained shall affect or limit
the right or obligation of the Company to execute and deliver to the Trustee
any instrument of further assurance or other instrument which elsewhere in
this Indenture it is provided shall be delivered to the Trustee.
The Trustee shall join with the Company in the execution of any such
supplemental indenture, make any further appropriate agreements and
stipulations which may be therein contained and accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which adversely affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
12.1 may be executed by the Company, the Guarantors and the Trustee without
the consent of the holders of any of the Debt Securities at the time
Outstanding, notwithstanding any of the provisions of Section 12.2.
SECTION 12.2. Modification of Indenture with consent of holders of Debt
Securities. With the consent (evidenced as provided in Section 8.1) of the
holders of more than 50% in aggregate principal amount of the Debt Securities
at the time Outstanding of each series affected by such supplement, the
Company and the Guarantors, when authorized by a resolution of each of their
respective Board of Directors, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provision to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the holders of such series of the
Debt Securities; provided, however, that no such supplemental indenture shall
(i) extend the time or times of payment of the principal of, premium, if any,
or the interest on, any series of Debt Securities, or reduce the principal
amount of, premium, if any, or the rate of interest on, any series of Debt
Securities (and/or such other amount or amounts as any Debt Securities or
supplemental indentures with respect thereto may provide to be due and
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 7.1) or change the currency of payment of principal of, premium, if
any, or interest on, any series of Debt Securities or reduce any amount
payable on redemption thereof or alter or impair the right to convert the
same at the rate and upon the terms provided in the Indenture or alter or
impair the right to require redemption at the option of the holder, without
the consent of the holder of each Debt Security so affected, or (ii) reduce
the percentage of Debt Securities of any series, the vote or consent of the
holders of which is required for such modifications and alterations, without
the consent of the holders of all Debt Securities then Outstanding of such
series under the Indenture. Notwithstanding the foregoing, no consent of the
holders of Debt Securities shall be necessary to permit the execution of
supplemental indentures pursuant to Section 13.7.
Upon the request of the Company, accompanied by a copy of a resolution
of its Board of Directors certified by the Secretary or an Assistant
Secretary of the Company authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
holders of Debt Securities as aforesaid, the Trustee shall join with the
Company and the Guarantors, as the case may be, in the execution of such
supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may, in its discretion, but shall not be obligated,
to enter into such supplemental indenture.
It shall not be necessary for the consent of the holders of Debt
Securities under this Section 12.2 to approve the particular form of any
proposed supplemental indenture, but is shall be sufficient if such consent
shall approve the substance thereof.
A supplemental indenture which changes or eliminates any provision of
this Indenture which has expressly been included solely for the benefit of
one or more particular series of Debt Securities, or which modifies the
rights of the holders of Debt Securities of such series with respect to such
provision, shall be deemed not to affect the rights under this Indenture of
the holders of Debt Securities of any other series.
SECTION 12.3. Effect of supplemental indentures. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article XII,
this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debt Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Section 11.1 may receive an
Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the provisions of this Article XII.
SECTION 12.4. Supplemental indentures to conform to Trust Indenture
Act. Any supplemental indenture executed and delivered pursuant to the
provisions of this Article XII shall conform in all respects to the
requirements of the Trust Indenture Act of 1939 as then in effect.
SECTION 12.5. Notation on or exchange of Debt Securities. If an
amendment, supplement or waiver changes the terms of a Debt Security of any
series, the Trustee may require the holder of the Debt Security to deliver it
to the Trustee. The Trustee may place an appropriate notation on the Debt
Security about the changed terms and return it to the holder. Alternatively,
if the Company or the Trustee so determines, the Company in exchange for the
Debt Security of any series shall issue and the Trustee shall authenticate a
new Debt Security of such series that reflects the changed terms.
ARTICLE XIII
CONVERSION OF DEBT SECURITIES
SECTION 13.1. Applicability of Article. Debt Securities of any series
which are convertible into Capital Stock at the option of the holder of Debt
Securities shall be convertible in accordance with their terms and (unless
otherwise specified as contemplated by Section 2.2 for Debt Securities of any
series) in accordance with this Article. Each reference in this Article XIII
to "A DEBT SECURITY" or "THE DEBT SECURITIES" refers to the Debt Securities
of the particular series that is convertible into Capital Stock. Each
reference in this Article to "CAPITAL STOCK" into which Debt Securities of
any series are convertible refers to the class of Capital Stock into which
the Debt Securities of such series are convertible in accordance with their
terms (as specified as contemplated by Section 2.2). If more than one series
of Debt Securities with conversion privileges are outstanding at any time,
the provisions of this Article XIII shall be applied separately to each such
series.
SECTION 13.2. Right of holders of Debt Securities to convert Debt
Securities. Subject to and upon compliance with the terms of the Debt
Securities and the provisions of Section 5.7 and this Article XIII, at the
option of the holder thereof, any series of Debt Securities of any series of
any authorized denomination, or any portion of the principal amount thereof
which is $1,000 or any integral multiple of $1,000, may, at any time during
the period specified in the Debt Securities of such series, or in case such
Debt Security or portion thereof shall have been called for redemption, then
in respect of such Debt Security or portion thereof until and including, but
not after (unless the Company shall default in payment due upon the
redemption thereof) the close of business on the date fixed for redemption
except that in the case of redemption at the option of the holder of Debt
Securities, if specified in the terms of such Debt Securities, such right
shall terminate upon receipt of written notice of the exercise of such
option, be converted into duly authorized, validly issued, fully paid and
nonassessable shares of the class of Preferred Stock or Class A Common Stock,
or combination thereof, as specified in such Debt Security, at the conversion
rate for each $1,000 principal amount of Debt Securities (such initial
conversion rate reflecting an initial conversion price specified in such Debt
Security) in effect on the conversion date, or, in case an adjustment in the
conversion rate has taken place pursuant to the provisions of Section 13.5,
then at the applicable conversion rate as so adjusted, upon surrender of the
Debt Security or Debt Securities, the principal amount of which is so to be
converted, to the Company at any time during usual business hours at the
office or agency to be maintained by it in accordance with the provisions of
Section 4.2, accompanied by a written notice of election to convert as
provided in Section 13.3 and, if so required by the Company and the Trustee,
by a written instrument or instruments of transfer in form satisfactory to
the Company and the Trustee duly executed by the registered holder or his
attorney duly authorized in writing. All Debt Securities surrendered for
conversion shall, if surrendered to the Company or any conversion agent, be
delivered to the Trustee for cancellation and cancelled by it, or shall, if
surrendered to the Trustee, be cancelled by it, as provided in Section 2.11.
The initial conversion price or conversion rate in respect of a series
of Debt Securities shall be as specified in the Debt Securities of such
series. The conversion price or conversion rate will be subject to
adjustment on the terms set forth in Section 13.5 or such other or different
terms, if any, as may be specified by Section 2.2 for Debt Securities of such
series. Provisions of this Indenture that apply to conversion of all of a
Debt Security also apply to conversion of a portion of it.
SECTION 13.3. Issuance of shares of Capital Stock on conversion. As
promptly as practicable after the surrender, as herein provided, of any
series of Debt Securities or Debt Securities for conversion, the Company
shall deliver or cause to be delivered at its said office or agency to or
upon the written order of the holder of the Debt Security or Debt Securities
so surrendered a certificate or certificates representing the number of duly
authorized, validly issued, fully paid and nonassessable shares of Capital
Stock into which such Debt Security or Debt Securities may be converted in
accordance with the terms thereof and the provisions of this Article XIII.
Prior to delivery of such certificate or certificates, the Company shall
require a written notice at its said office or agency from the holder of the
Debt Security or Debt Securities so surrendered stating that the holder
irrevocably elects to convert such Debt Security or Debt Securities, or, if
less than the entire principal amount thereof is to be converted, stating the
portion thereof to be converted. Such notice shall also state the name or
names (with address and social security or other taxpayer identification
number) in which said certificate or certificates are to be issued. Such
conversion shall be deemed to have been made at the time that such Debt
Security or Debt Securities shall have been surrendered for conversion and
such notice shall have been received by the Company or the Trustee, the
rights of the holder of such Debt Security or Debt Securities as a holder of
Debt Securities shall cease at such time, the person or persons entitled to
receive the shares of Capital Stock upon conversion of such Debt Security or
Debt Securities shall be treated for all purposes as having become the record
holder or holders of such shares of Capital Stock at such time and such
conversion shall be at the conversion rate in effect at such time. In the
case of any series of Debt Securities of any series which is converted in
part only, upon such conversion, the Company shall execute and the Trustee or
an Authenticating Agent shall authenticate and deliver to the holder thereof,
as requested by such holder, a new Debt Security or Debt Securities of such
series of authorized denominations in aggregate principal amount equal to the
unconverted portion of such Debt Security.
If the last day on which a Debt Security may be converted is not a
Business day in a place where a conversion agent is located, the Debt
Security may be surrendered to that conversion agent on the next succeeding
day that is a Business day.
The Company will not be required to deliver certificates for shares of
Capital Stock upon conversion while its stock transfer books are closed for a
meeting of stockholders or for the payment of dividends or for any other
purpose, but certificates for shares of Capital Stock shall be delivered as
soon as the stock transfer books shall again be opened.
SECTION 13.4. No payment or adjustment for interest or dividends.
Unless otherwise specified as contemplated by Section 2.2 for Debt Securities
of such series, Debt Securities surrendered for conversion during the period
from the close of business on any regular record date (or special record date
for payment of defaulted interest) next preceding any interest payment date
to the opening of business on such interest payment date (except Debt
Securities called for redemption on a redemption date within such period)
when surrendered for conversion must be accompanied by payment of an amount
equal to the interest thereon which the registered holder is to receive on
such interest payment date. Payment of interest shall be made, as of such
interest payment date or such date, as the case may be, to the holder of
record of the Debt Securities as of such regular, or special record date, as
applicable. Except where Debt Securities surrendered for conversion must be
accompanied by payment as described above, no interest on converted Debt
Securities will be payable by the Company on any interest payment date
subsequent to the date of conversion. No other payment or adjustment for
interest or dividends is to be made upon conversion. Notwithstanding the
foregoing, upon conversion of any series of Debt Securities with original
issue discount, the fixed number of shares of Capital Stock into which such
Debt Security is convertible delivered by the Company to the holder thereof
shall be applied, first, to pay the accrued original issue discount
attributable to the period from the date of issuance to the date of
conversion of such Debt Security, and, second, to pay the balance of the
principal amount of such Debt Security.
SECTION 13.5. Adjustment of conversion rate. Unless otherwise
specified as contemplated by Section 2.2 for Debt Securities of such series,
the conversion rate for Debt Securities in effect at any time shall be
subject to adjustment as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on the class of Capital Stock into which Debt Securities of
such series are convertible in shares of its Capital Stock, (ii)
subdivide the outstanding shares of the class of Capital Stock into
which Debt Securities of such series are convertible into a greater
number of shares, (iii) combine the outstanding shares of the class of
Capital Stock into which Debt Securities of such series are convertible
into a smaller number of shares, or (iv) issue by reclassification of
the shares of the class of Capital Stock into which Debt Securities of
such series are convertible (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing corporation) any shares, the conversion rate for the Debt
Securities of such series in effect at the time of the record date for
such dividend or distribution, or the effective date of such
subdivision, combination or reclassification, shall be proportionately
adjusted so that the holder of any series of Debt Securities of such
series surrendered for conversion after such time shall be entitled to
receive the number and kind of shares which he would have owned or have
been entitled to receive had such Debt Security been converted
immediately prior to such time. Similar adjustments shall be made
whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the issuance
of rights or warrants to all holders of the class of Capital Stock into
which Debt Securities of such series are convertible entitling them (for
a period expiring within 45 days after such record date) to subscribe
for or purchase shares of such class of Capital Stock (or securities
convertible into shares of such class of Capital Stock) at a price per
share (or, in the case of a right or warrant to purchase securities
convertible into such class of Capital Stock, having a conversion price
per share, after adding thereto the exercise price, computed on the
basis of the maximum number of shares of such class of Capital Stock
issuable upon conversion of such convertible securities, per share of
such class of Capital Stock, so issuable) less than the current market
price per share of such class of Capital Stock (as defined in subsection
(d) below) on the date on which such issuance was declared or otherwise
announced by the Company (the "DETERMINATION DATE"), the number of
shares of such class of Capital Stock into which each $1,000 principal
amount of Debt Securities shall be convertible after such record date
shall be determined by multiplying the number of shares of such class of
Capital Stock into which such principal amount of Debt Securities was
convertible immediately prior to such record date by a fraction, of
which the numerator shall be the number of shares of such class of
Capital Stock outstanding on the Determination Date plus the number of
additional shares of such class of Capital Stock offered for
subscription or purchase (or in the case of a right or warrant to
purchase securities convertible into such class of Capital Stock, the
aggregate number of additional shares of such class of Capital Stock
into which the convertible securities so offered are initially
convertible), and of which the denominator shall be the number of shares
of such class of Capital Stock outstanding on the Determination Date
plus the number of shares of such class of Capital Stock obtained by
dividing the aggregate offering price of the total number of shares so
offered (or, in the case of a right or warrant to purchase securities
convertible into such class of Capital Stock, the aggregate initial
conversion price of the convertible securities so offered, after adding
thereto the aggregate exercise price of such rights or warrants computed
on the basis of the maximum number of shares of such class of Capital
Stock issuable upon conversion of such convertible securities) by such
current market price. Shares of such class of Capital Stock of the
Company owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is
fixed; and to the extent that shares of such class of Capital Stock are
not delivered (or securities convertible into shares of such class of
Capital Stock are not delivered) after the expiration of such rights or
warrants (or, in the case of rights or warrants to purchase securities
convertible into such class of Capital Stock once exercised, the
expiration of the conversion right of such securities) the conversion
rate shall be readjusted to the conversion rate which would then be in
effect had the adjustments made upon the issuance of such rights or
warrants (or securities convertible into shares) been made upon the
basis of delivery of only the number of shares actually delivered. In
the event that such rights or warrants are not so issued, the conversion
rate shall again be adjusted to the conversion rate which would then be
in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of
a distribution to all holders of the class of Capital Stock into which
Debt Securities of such series are convertible (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation) of evidences of its
indebtedness or assets (excluding any cash dividends paid from retained
earnings and dividends payable in Capital Stock for which adjustment is
made pursuant to subsection (a) above) or subscription rights or
warrants (excluding subscription rights or warrants to purchase the
class of Capital Stock into which Debt Securities of such series are
convertible), the number of shares of such class of Capital Stock into
which each $1,000 principal amount of Debt Securities of such series
shall be convertible after such record date shall be determined by
multiplying the number of shares of such class of Capital Stock into
which such principal amount of Debt Securities was convertible
immediately prior to such record date by a fraction, of which the
numerator shall be the fair market value of the assets of the Company,
after deducting therefrom all liabilities of the Company and all
preferences (including accrued but unpaid dividends) in respect of
classes of Capital Stock having a preference with respect to the assets
of the Company over such class of Capital Stock (all as determined by
the Board of Directors, whose determination shall be conclusive, and
described in a certificate signed by any Chairmen of the Board,
President or any Vice President (regardless of Vice Presidential
designation) and the Chief Financial Officer or Treasurer of the
Company, filed with the Trustee and each conversion agent) on such
record date, and of which the denominator shall be such fair market
value after deducting therefrom such liabilities and preferences, less
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive, and described in a statement filed
with the Trustee and each conversion agent) of the assets or evidences
of indebtedness, so distributed or of such subscription rights or
warrants applicable, so distributed. Such adjustment shall be made
successively whenever such a record date is fixed; and in the event that
such distribution is not so made, the conversion rate shall again be
adjusted to the conversion rate which would then be in effect if such
record date had not been fixed.
(d) For the purpose of any computation under subsection (b) above
and Section 13.6, the current market price per share of the Capital
Stock on any date as of which such price is to be computed shall mean
the average of the Closing Prices for the 30 consecutive Business days
commencing 45 Business days before such date.
(e) No adjustment in the conversion rate shall be required unless
such adjustment would require a cumulative increase or decrease of at
least 1% in such rate; provided, however, that any adjustments which by
reason of this subsection (e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment, and
provided, further, that adjustments shall be required and made in
accordance with the provisions of this Article XIII (other than this
subsection (e)) not later than such time as may be required in order to
preserve the tax-free nature of a distribution for United States income
tax purposes to the holders of Debt Securities or the class of Capital
Stock into which such Debt Securities are convertible. All calculations
under this Article XIII shall be made to the nearest cent or to the
nearest one-thousandth of a share, as the case may be. Anything in this
Section 13.5 to the contrary notwithstanding, the Company shall be
entitled to make such adjustments in the conversion rate, in addition to
those required by this Section 13.5, as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision
of shares, distribution of rights to purchase stock or securities, or
distribution of securities convertible into or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable
for United States income tax purposes.
(f) Whenever the conversion rate is adjusted, as herein provided,
the Company shall promptly file with the Trustee and with the office or
agency maintained by the Company for the conversion of Debt Securities
of such series pursuant to Section 4.2, a certificate of a firm of
independent public accountants of recognized national standing selected
by the Board of Directors (who may be the regular accountants employed
by the Company) setting forth the conversion rate after such adjustment
and setting forth a brief statement of the facts requiring such
adjustment and a computation thereof. Such certificate shall be
conclusive evidence of the correctness of such adjustment. Neither the
Trustee nor any conversion agent shall be under any duty or
responsibility with respect to any such certificate or any facts or
computations set forth therein, except to exhibit said certificate from
time to time to any holder of Debt Securities of such series desiring to
inspect the same. The Company shall promptly cause a notice setting
forth the adjusted conversion rate to be mailed to the holders of Debt
Securities of such series, as their names and addresses appear upon the
registration books of the Company.
(g) In the event that at any time, as a result of shares of any
other class of Capital Stock becoming issuable in exchange or
substitution for or in lieu of shares of the class of Capital Stock into
which such Debt Securities are convertible or as a result of an
adjustment made pursuant to subsection (a) above, the holder of any
series of Debt Securities of such series thereafter surrendered for
conversion shall become entitled to receive any shares of the Company
other than shares of the class of Capital Stock into which the Debt
Securities of such series are convertible, thereafter the number of such
other shares so receivable upon conversion of any series of Debt
Securities 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 the class of Capital Stock into which the Debt Securities of
such series are convertible contained in subsections (a) to (f),
inclusive, above, and the provisions of this Article XIII with respect
to the class of Capital Stock into which the Debt Securities of such
series are convertible shall apply on like terms to any such other
shares.
(h) The conversion rate with respect to any Debt Securities with
original issue discount, the terms of which provide for convertibility,
shall not be adjusted during the term of such Original Issue Discount
Securities for accrued original issue discount.
(i) In the event that the Debt Securities of any series are
convertible into more than one class of Capital Stock, the provisions of
this Section 13.5 shall apply separately to events affecting each such
class.
SECTION 13.6. No fractional shares to be issued. No fractional shares
of Capital Stock shall be issued upon conversions of Debt Securities. If
more than one Debt Security of any series shall be surrendered for conversion
at one time by the same holder, the number of full shares which shall be
issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of Debt Securities of such series (or specified
portions thereof to the extent permitted hereby) so surrendered. Instead of
a fraction of a share of Capital Stock which would otherwise be issuable
upon conversion of any series of Debt Securities or Debt Securities (or
specified portions thereof), the Company shall pay a cash adjustment in
respect of such fraction of a share in an amount equal to the same fractional
interest of the current market price (as defined in Section 13.5) per share
of Capital Stock on the Business day next preceding the day of conversion.
SECTION 13.7. Preservation of conversion rights upon consolidation,
merger, sale or conveyance. In case of any consolidation of the Company
with, or merger of the Company into, any other corporation (other than a
consolidation or merger in which the Company is the continuing corporation),
or in the case of any sale or transfer of all or substantially all of the
assets of the Company, the corporation formed by such consolidation or the
corporation into which the Company shall have been merged or the corporation
which shall have acquired such assets, as the case may be, shall execute and
deliver to the Trustee, a supplemental indenture, subject to the provisions
of Article X and XII as they relate to supplemental indentures, providing
that the holder of each Debt Security then Outstanding of a series which was
convertible into Capital Stock shall have the right thereafter to convert
such Debt Security into the kind and amount of shares of stock and other
securities and property, including amount of shares of stock and other
securities and property, including cash, receivable upon such consolidation,
merger, sale or transfer by a holder of the number of shares of Capital Stock
of the Company into which such Debt Securities might have been converted
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental indenture shall conform to the provisions of the Trust Indenture
Act of 1939 as then in effect and shall provide for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for
in this Article XIII. Neither the Trustee nor any conversion agent shall be
under any responsibility to determine the correctness of any provision
contained in any such supplemental indenture relating either to the kind or
amount of shares of stock or other securities or property receivable by
holders of Debt Securities upon the conversion of their Debt Securities after
any such consolidation, merger, sale or transfer, or to any adjustment to be
made with respect thereto and, subject to the provisions of Section 11.1, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, an Opinion of Counsel with respect
thereto. If in the case of any such consolidation, merger, sale or transfer,
the stock or other securities and property receivable by a holder of the Debt
Securities includes stock or other securities and property of a corporation
other than the successor or purchasing corporation, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the holders of the
Debt Securities as the Board of Directors shall reasonably consider
necessary. The above provisions of this Section 13.7 shall similarly apply
to successive consolidations, mergers, sales or transfers.
SECTION 13.8. Notice to holders of Debt Securities of a series prior to
taking certain types of action. With respect to the Debt Securities of any
series, in case:
(a) the Company shall authorize the issuance to all holders of the
class of Capital Stock into which Debt Securities of such series are
convertible of rights or warrants to subscribe for or purchase shares of
its Capital Stock or of any other right:
(b) the Company shall authorize the distribution to all holders of
the class of Capital Stock into which Debt Securities of such series are
convertible of evidences of its indebtedness or assets (except for the
exclusions with respect to certain dividends set forth in Section
13.5(c));
(c) of any subdivision, combination or reclassification of the
class of Capital Stock into which Debt Securities of such series are
convertible or of any consolidation or merger to which the Company is a
party and for which approval by the stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and at the office
or agency maintained for the purpose of conversion of Debt Securities of such
series pursuant to Section 4.2, and shall cause to be mailed to the holders
of Debt Securities of such series, at their last addresses as they shall
appear upon the registration books of the Company, at least ten days prior to
the applicable record date hereinafter specified, a notice stating (i) the
date as of which the holders of such class of Capital Stock to be entitled to
receive any such rights, warrants or distribution are to be determined, or
(ii) the date on which any such subdivision, combination, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation, winding up
or other action is expected to become effective, and the date as of which it
is expected that holders of record of such class of Capital Stock shall be
entitled to exchange their Capital Stock of such class for securities or
other property, if any, deliverable upon such subdivision, combination,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action. The failure to give the notice
required by this Section 13.8 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action, or the vote upon any of
the foregoing. Such notice shall also be published by and at the expense of
the Company not later than the aforesaid filing date at least once in an
Authorized Newspaper.
SECTION 13.9. Covenant to reserve shares for issuance on conversion of
Debt Securities. The Company covenants that at all times it will reserve and
keep available out of each class of its authorized Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of Debt
Securities of any series as herein provided, such number of shares of Capital
Stock of such class as shall then be issuable upon the conversion of all
Outstanding Debt Securities of such series. The Company covenants that all
shares of Capital Stock which shall be so issuable shall, when issued or
delivered, be duly and validly issued shares of the class of authorized
Capital Stock into which Debt Securities of such series are convertible, and
shall be fully paid and nonassessable, free of all liens and charges and not
subject to preemptive rights and that, upon conversion, the appropriate
capital stock accounts of the Company will be duly credited.
SECTION 13.10. Compliance with governmental requirements. The Company
covenants that if any shares of Capital Stock required to be reserved for
purposes of conversion of Debt Securities hereunder require registration or
listing with or approval of any governmental authority under any Federal or
State law, pursuant to the Securities Act of 1933, as amended, or the
Securities Exchange Act, or any national or regional securities exchange on
which such Capital Stock is listed at the time of delivery of any shares of
such Capital Stock, before such shares may be issued upon conversion, the
Company will use its best efforts to cause such shares to be duly registered,
listed or approved, as the case may be.
SECTION 13.11. Payment of taxes upon certificates for shares issued
upon conversion. The issuance of certificates for shares of Capital Stock
upon the conversion of Debt Securities shall be made without charge to the
converting holders of Debt Securities for any tax (including, without
limitation, all documentary and stamp taxes) in respect of the issuance and
delivery of such certificates, and such certificates shall be issued in the
respective names of, or in such names as may be directed by, the holders of
the Debt Securities converted; provided, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificate in a name other
than that of the holder of the Debt Security converted, and the Company shall
not be required to issue or deliver such certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid.
SECTION 13.12. Trustee's duties with respect to conversion provisions.
The Trustee and any conversion agent shall not at any time be under any duty
or responsibility to any holder of Debt Securities to determine whether any
facts exist which may require any adjustment of the conversion rate, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any
conversion agent shall be accountable with respect to the registration under
securities laws, listing, validity or value (or the kind or amount) of any
shares of Capital Stock, or of any other securities or property, which may at
any time be issued or delivered upon the conversion of any series of Debt
Securities; and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to make any cash
payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any series
of Debt Securities for the purpose of conversion; and the Trustee, subject to
the provisions of Section 11.1, and any conversion agent shall not be
responsible for any failure of the Company to comply with any of the
covenants of the Company contained in this Article XIII.
ARTICLE XIV
GUARANTEES
SECTION 14.1. Guarantee. If any of the Guarantors guarantee any series
of Debt Securities, such series of Debt Securities shall be guaranteed,
jointly and severally, by each Guarantor. Subject to the provisions of this
Article XIV and the terms of a Debt Security of any series, each Guarantor
hereby irrevocably and unconditionally guarantees, jointly and severally, to
each holder of Debt Securities and the Trustee, on behalf of the holders of
Debt Securities, (a) the due and punctual payment of the principal of,
premium if any, and interest on each Debt Security, when and as the same
shall become due and payable, whether at stated maturity, acceleration, or
otherwise, the due and punctual payment of interest on the overdue principal
of and interest, if any, on the Debt Securities, to the extent lawful, and
the due and punctual performance of all other obligations of the Company to
the holders of Debt Securities or the Trustee all in accordance with the
terms of such Debt Security and this Indenture provided that this Guarantee
shall not be applicable to, or guarantee the Company's obligation with
respect to the conversion of Debt Securities into Preferred Stock or Class A
Common Stock if applicable to the Debt Securities of such series, and (b) in
the case of any extension of time of payment or renewal of any Debt
Securities or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, at stated maturity, by declaration of acceleration or
otherwise (the obligations in subsections (a) and (b) hereof being the
"GUARANTEED OBLIGATIONS"). Without limiting the generality of the foregoing,
each Guarantor's liability shall extend to all amounts that constitute part
of the Guaranteed Obligations and would be owed by the Company to the holders
of Debt Securities, or the Trustee under the Debt Securities and this
Indenture but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding
involving the Company. The Guarantors hereby agree that their obligations
hereunder shall be absolute and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any such
Debt Security or this Indenture, any failure to enforce the provisions of any
such Debt Security or this Indenture, any waiver, modification or indulgence
granted to the Company with respect thereto, by any Guaranteed Party or any
other circumstances which may otherwise constitute a legal or equitable
discharge or defense of the Company or a surety or guarantor. The Guarantors
hereby waive diligence, presentment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a
proceeding first against the Company, the benefit of discussion, protest or
notice with respect to any such Debt Security or the indebtedness evidenced
thereby and all demands whatsoever (except as specified above), and covenant
that this Guarantee will not be discharged as to any such Debt Security
except by payment in full of the Guaranteed Obligations, pursuant to
Article X, or upon conversion of such Debt Security in accordance with
Article XIII. Each Guarantor further agrees that, as between such Guarantor
and the Guaranteed Parties, (x) the maturity of Guaranteed Obligations may be
accelerated as provided in Article VII for the purpose of the Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations, and (y) in the event
of any declaration of acceleration of such Guaranteed Obligations as provided
in Article VII, such Guaranteed Obligations (whether or not due and payable)
shall forthwith become due and payable by each Guarantor for the purpose of
this Guarantee. In addition, without limiting the foregoing provisions, upon
the effectiveness of an acceleration under Article VII, the Trustee shall
promptly make a demand for payment on the Debt Securities under each
Guarantee provided for in this Article XIV and not discharged.
Each Guarantor hereby irrevocably waives any claim or other rights that
it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Guarantor's
obligations under this Indenture, or any other document or instrument
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any
claim or remedy of the Guaranteed Parties against the Company, whether or not
such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or in any
other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and the Guaranteed Obligations shall not have been paid in full,
such amount shall be deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Guaranteed Parties, and
shall forthwith be paid to the Trustee. Each Guarantor acknowledges that it
will receive direct and indirect benefits from the issuance of the Debt
Securities and that the waiver set forth in this Section is knowingly made in
contemplation of such benefits.
SECTION 14.2. Obligations of the Guarantors Unconditional. Nothing
contained in this Article XIV elsewhere in this Indenture or in any series of
Debt Securities or in the Guarantee is intended to or shall impair, as
between the Guarantors and the holders of Debt Securities, the obligations of
the Guarantors, which obligations are independent of the obligations of the
Company under the Debt Securities and this Indenture and are absolute and
unconditional, to pay to the holders of Debt Securities the Guaranteed
Obligations as and when the same shall become due and payable in accordance
with the provisions of this Guarantee and this Indenture, nor shall anything
herein or therein prevent the Trustee or any holder of Debt Securities from
exercising all remedies otherwise permitted by applicable law upon an Event
of Default under this Indenture. Each payment to be made by any Guarantor
hereunder in respect of the Guaranteed Obligations shall be payable in the
currency or currencies in which such Guaranteed Obligations are denominated.
SECTION 14.3. Execution of Guarantee. To evidence its obligations
under this Article XIV, each Guarantor hereby agrees to execute a guarantee
in a form set forth in the supplemental indenture for such series of Debt
Securities, to be endorsed on each Debt Security authenticated and delivered
by the Trustee and that this Indenture shall be executed on behalf of the
Guarantors by their respective Presidents or Vice Presidents (regardless of
Vice Presidential designation), under their corporate seals reproduced
thereon attested by their respective Secretaries or Assistant Secretaries.
The signature of any of these officers on the Debt Securities may be manual
or facsimile. Each Guarantor hereby agrees that its Guarantee set forth in
this Article XIV shall remain in full force and effect notwithstanding any
failure to endorse such Guarantee on any series of Debt Securities.
If an officer whose signature is on this Indenture no longer holds that
office at the time the Trustee authenticates a Debt Security on which this
Guarantee is endorsed, the Guarantee shall be valid nevertheless.
SECTION 14.4. Withholding. All payments made by a Guarantor with
respect to the Guarantees will be made without withholding or deduction for,
or on account of, any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of
any country (other than the United States) or any political subdivision
thereof or any authority therein or thereof, having power to tax, unless the
withholding or deduction of such taxes, duties, assessments or governmental
charges is then required by law. In the event that any country (other than
the United States) or any political subdivision thereof or any authority
therein or thereof, imposes any such withholding or deduction on (a) any
payments made by a Guarantor with respect to the Guarantees or (b) any net
proceeds on the sale to or exchange with any Guarantor of the Debt
Securities, such Guarantor will pay such additional amounts (the "ADDITIONAL
AMOUNTS") as may be necessary in order that the net amounts received in
respect of such payments or sale or exchange by the holders of the Debt
Securities or the Trustee, as the case may be, after such withholding or
deduction shall equal the respective amounts that would have been received in
respect of such payments or sale or exchange in the absence of such
withholding or deduction; except that no such Additional Amounts shall be
payable with respect to any series of Debt Securities held by or on behalf of
a holder who is liable for such taxes, duties, assessments or governmental
charges in respect of such Debt Security by reason of his being a citizen or
resident of, or carrying on a business in, the country of residence of any
Guarantor. Notwithstanding the foregoing, a Guarantor making a payment on
the Debt Securities pursuant to the Guarantee shall not be required to pay
any Additional Amounts if (x) the beneficial holder of a Debt Security
receives by certified mail (evidenced by a return receipt signed by such
beneficial holder) (i) written notice from such Guarantor no less than 60
days in advance of making such payment and (ii) the appropriate forms or
instructions necessary to enable such beneficial holder to certify or
document the availability of an exemption from, or reduction of, the
withholding or deduction of such taxes under applicable law, which such
instructions shall clearly specify that Additional Amounts hereunder may not
be paid if such forms are not completed by such beneficial holder, and (y)
the Guarantor that would otherwise have to pay such Additional Amounts
establishes to the satisfaction of the Trustee that the obligation to pay
such Additional Amounts would not have arisen but for the failure of such
beneficial holder to (i) duly complete such forms as were actually received
by such beneficial holder or respond to such instructions and (ii) provide to
such Guarantor such duly completed forms or responses to instructions.
Without prejudice to the survival of any of the agreements of the Guarantors
hereunder, the agreements and obligations of the Guarantors contained in this
Section 14.4 shall survive the payment in full of the Guaranteed Obligations
and all other amounts payable under this Guarantee.
SECTION 14.5. Limitation of Guarantee. The Company and each holder of
a Debt Security by his or her acceptance thereof, hereby confirm that it is
the intention of all such parties that any Guarantee of the Guaranteed
Obligations executed by a Guarantor pursuant to this Indenture and the terms
of a supplemental indenture for any series of Debt Securities not constitute
a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act or any similar federal or state law. To
effectuate the foregoing intention, the holders of Debt Securities hereby
irrevocably agree that in the event that any such Guarantee would constitute
or result in a violation of any applicable fraudulent conveyance or similar
law of any relevant jurisdiction, the liability of the Guarantor under such
Guarantee shall be reduced to the maximum amount, after giving effect to all
other contingent and fixed liabilities of such Guarantor, permissible under
the applicable fraudulent conveyance or similar law.
SECTION 14.6. Release of Guarantee. (a) Concurrently with the payment
in full of all of the Guaranteed Obligations, the Guarantors shall be
released from and relieved of their obligations under this Article XIV. Upon
the delivery by the Company to the Trustee of an Officers' Certificate and,
if requested by the Trustee, an Opinion of Counsel to the effect that the
transaction giving rise to the release of such obligations was made by the
Company in accordance with the provisions of this Indenture and the Debt
Securities, the Trustee shall execute any documents reasonably required in
order to evidence the release of the Guarantors from their obligations. If
any of the Guaranteed Obligations are revived and reinstated after the
termination of this Guarantee, then all of the obligations of the Guarantors
under this Guarantee shall be revived and reinstated as if this Guarantee had
not been terminated until such time as the Guaranteed Obligations are paid in
full, and the Guarantors shall enter into an amendment to this Guarantee,
reasonably satisfactory to the Trustee, evidencing such revival and
reinstatement.
(b) Upon the sale or disposition of all the Capital Stock of a
Guarantor (by merger or otherwise) to a Person other than the Company or any
other Guarantor and which sale or disposition is otherwise in compliance with
the terms of this Indenture, such Guarantor shall be deemed released from all
obligations under this Article XIV; provided, however, that any such
termination upon such sale or disposition shall occur if and only to the
extent that all obligations of such Guarantor under all of its guarantees of,
and under all of its pledges of assets or other security interests which
secure, indebtedness of the Company or any other Guarantor shall also
terminate upon such sale or disposition. Upon the delivery by the Company to
the Trustee of an Officers' Certificate and, if requested by the Trustee, an
Opinion of Counsel to the effect that the transaction giving rise to the
release of such obligations was made in accordance with the provisions of
this Indenture and the Debt Securities, the Trustee shall execute any
documents reasonably required in order to evidence the release of such
Guarantor from its obligations. Any Guarantor not so released remains liable
for the full amount of principal of and interest on the Debt Securities as
provided in this Article XIV.
(c) With respect to any series of Debt Securities, upon conversion of
such Debt Security in accordance with the provisions of Article XIII, the
Guarantors shall be released from and relieved of their obligations with
respect to such Debt Security under this Article XIV. Upon such conversion,
if so requested by a Guarantor, the Trustee shall execute any documents
reasonably required in order to evidence the release of the Guarantors from
their obligations. If any of the Guaranteed Obligations are revived and
reinstated after the termination of this Guarantee, then all of the
obligations of the Guarantors under this Guarantee shall be revived and
reinstated as if this Guarantee had not been terminated until such time as
the Guaranteed Obligations are paid in full, and the Guarantors shall enter
into an amendment to this Guarantee, reasonably satisfactory to the Trustee,
evidencing such revival and reinstatement.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the day and year first above written.
CANANDAIGUA BRANDS, INC.
By:
Name:
Title:
Attest:
Name:
Title:
BATAVIA WINE CELLARS, INC.
By:
Name:
Title:
Attest:
Name:
Title:
BARTON INCORPORATED
By:
Name:
Title:
Attest:
Name:
Title:
BARTON BRANDS, LTD.
By:
Name:
Title:
Attest:
Name:
Title:
BARTON BEERS, LTD.
By:
Name:
Title:
Attest:
Name:
Title:
BARTON BRANDS OF CALIFORNIA, INC.
By:
Name:
Title:
Attest:
Name:
Title:
BARTON BRANDS OF GEORGIA, INC.
By:
Name:
Title:
Attest:
Name:
Title:
BARTON DISTILLERS IMPORT CORP.
By:
Name:
Title:
Attest:
Name:
Title:
BARTON FINANCIAL CORPORATION
By:
Name:
Title:
Attest:
Name:
Title:
STEVENS POINT BEVERAGE CO.
By:
Name:
Title:
Attest:
Name:
Title:
MONARCH IMPORT COMPANY
By:
Name:
Title:
Attest:
Name:
Title:
CANANDAIGUA WINE COMPANY, INC.
By:
Name:
Title:
Attest:
Name:
Title:
THE VIKING DISTILLERY, INC.
By:
Name:
Title:
Attest:
Name:
Title:
CANANDAIGUA EUROPE LIMITED
By:
Name:
Title:
Attest:
Name:
Title:
ROBERTS TRADING CORP.
By:
Name:
Title:
Attest:
Name:
Title:
HARRIS TRUST AND SAVINGS BANK, as
Trustee
By:
Name:
Title:
Attest:
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF _______________ )
On the ____ day of ____________, ____ 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 CANANDAIGUA BRANDS, INC., a
Delaware corporation, the corporation described in and which executed the
above instrument; that he knows the corporate seal of said corporation;
that the seal affixed to the 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.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the ____ day of ______________, ____ before me
personally came ______________ to me known, who, being by me duly sworn,
did depose and say that she resides at _________________, that he or she is
______________________ of BATAVIA WINE CELLARS, INC., a New York
corporation, the corporation described in and which executed the above
instrument; that he or she knows the seal of said corporation; that the
seal affixed to the said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he or she
signed his or her name thereto by like authority.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the ____ day of ____________, ____ 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 BARTON INCORPORATED, a Delaware corporation, the
corporation described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the
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.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the _____ day of ________________, ____ before me
personally came ______________ to me known, who, being by me duly sworn,
did depose and say that she resides at ___________, that he or she is
______________________ of BARTON BRANDS, LTD., a Delaware corporation, the
corporation described in and which executed the above instrument; that he or
she knows the seal of said corporation; that the seal affixed to the said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he or she signed his or her name
thereto by like authority.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the ____ day of ____________, ____ 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 BARTON BEERS, LTD., a Maryland corporation, the
corporation described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the
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.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the _____ day of ________________, ____ before me
personally came ______________ to me known, who, being by me duly sworn, did
depose and say that she resides at _______________, that he or she is
______________________ of BARTON BRANDS OF CALIFORNIA, INC., a Connecticut
corporation, the corporation described in and which executed the above
instrument; that he or she knows the seal of said corporation; that the seal
affixed to the said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he or she
signed his or her name thereto by like authority.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the ____ day of ____________, ____ 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 BARTON BRANDS OF GEORGIA, INC., a Georgia corporation,
the corporation described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the
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.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the _____ day of ________________, ____ before me
personally came ______________ to me known, who, being by me duly sworn, did
depose and say that she resides at _______________, that he or she is
______________________ of BARTON DISTILLERS IMPORT CORP., a New York
corporation, the corporation described in and which executed the above
instrument; that he or she knows the seal of said corporation; that the seal
affixed to the said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he or she
signed his or her name thereto by like authority.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the ____ day of ____________, ____ 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 BARTON FINANCIAL CORPORATION, a Delaware corporation,
the corporation described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the
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.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the _____ day of ________________, ____ before me
personally came ______________ to me known, who, being by me duly sworn, did
depose and say that she resides at _______________, that he or she is
______________________ of STEVENS POINT BEVERAGE CO., a Wisconsin
corporation, the corporation described in and which executed the above
instrument; that he or she knows the seal of said corporation; that the seal
affixed to the said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he or she
signed his or her name thereto by like authority.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the _____ day of ________________, ____ before me
personally came ______________ to me known, who, being by me duly sworn, did
depose and say that she resides at _______________, that he or she is
______________________ of MONARCH IMPORT COMPANY, an Illinois corporation,
the corporation described in and which executed the above instrument; that he
or she knows the seal of said corporation; that the seal affixed to the said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he or she signed his or her name
thereto by like authority.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the _____ day of ________________, ____ before me
personally came ______________ to me known, who, being by me duly sworn, did
depose and say that she resides at _______________, that he or she is
______________________ of CANANDAIGUA WINE COMPANY, INC., a New York
corporation, the corporation described in and which executed the above
instrument; that he or she knows the seal of said corporation; that the seal
affixed to the said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he or she
signed his or her name thereto by like authority.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the _____ day of ________________, ____ before me
personally came ______________ to me known, who, being by me duly sworn, did
depose and say that she resides at _________________, that he or
she is ______________________ of THE VIKING DISTILLERY, INC., a Georgia
corporation, the corporation described in and which executed the above
instrument; that he or she knows the seal of said corporation; that the seal
affixed to the said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he or she
signed his or her name thereto by like authority.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the _____ day of ________________, ____ before me
personally came ______________ to me known, who, being by me duly sworn, did
depose and say that she resides at _________________, that he or she
is ______________________ of CANANDAIGUA EUROPE LIMITED, a New
York corporation, the corporation described in and which executed the
above instrument; that he or she knows the seal of said corporation; that the
seal affixed to the said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he or she
signed his or her name thereto by like authority.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the ____ day of ____________, ____, 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 ROBERTS TRADING CORP., a New York corporation, the
corporation described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the
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.
[NOTARIAL SEAL]
STATE OF ________________ )
) ss.:
COUNTY OF _______________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say
that he or she resides at _________________, that he or she is
______________________ of HARRIS TRUST AND SAVINGS BANK, an Illinois banking
corporation described in and which executed the above instrument; that she
knows the seal of said corporation; that the seal affixed to the said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he or she signed his or her name
thereto by like authority.
[NOTARIAL SEAL]
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Amendment No. 1 to the Registration Statement on Form S-3
(Reg. No. 333-40571) of our report dated April 25, 1997 included in
Canandaigua Brands, Inc.'s (formerly Canandaigua Wine Company, Inc.)
Form 10-K for the year ended February 28, 1997 and to all references to our
Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Rochester, New York
December 17, 1997
