As filed with the Securities and Exchange Commission on March 11, 1994
Registration Statement No. 33-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________________
ConAgra, Inc. ConAgra Capital, L.C.
(Exact name of registrant (Exact name of coregistrant
as specified in its charter) as specified in its charter)
Delaware Iowa
(State or other jurisdiction of (State of other jurisdiction
of
incorporation or organization) incorporation or organization)
47-0248710 Applied For
(I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.)
One ConAgra Drive
Omaha, Nebraska 68102-5001
(402) 595-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Stephen L. Key
Executive Vice President and Chief Financial Officer
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
(402) 595-4000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
______________________
Copies to:
David L. Hefflinger John M. Brandow
McGrath, North, Mullin & Kratz, P.C. Davis Polk & Wardwell
Suite 1400 450 Lexington Avenue
One Central Park Plaza New York, NY 10017
Omaha, NE 68102
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration
statement.
If the 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 being
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/ ____________________
CALCULATION OF REGISTRATION FEE
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-
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH AMOUNT OFFERING AGGREGATE AMOUNT OF
CLASS OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SECURITY(1) PRICE(2) FEE
ConAgra, Inc. Debt
Securities.............
ConAgra Capital, L.C.
Preferred Securities...
ConAgra, Inc. Backup
Undertakings consisting {$450,000,000 100% $450,000,000 $155,173
of certain obligations
to be incurred by
ConAgra, Inc. with
respect to ConAgra
Capital L.C. Preferred
Securities(2)..........
_____________________
---------------
(1) Estimated solely for the purposes of calculating the registration fee.
(2) Backup Undertakings consist of certain obligations which may be
incurred by ConAgra, Inc. in connection with ConAgra Capital, L.C.
securities, including debentures of ConAgra, Inc., a ConAgra Guarantee
Agreement, and a ConAgra Expense Payment Agreement. No separate
consideration will be received for the Backup Undertakings offered
with respect to the ConAgra Capital, L.C. Preferred Securities.
The registrants hereby amend this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrants shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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 BUT HAS NOT YET BECOME EFFECTIVE. 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.
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SUBJECT TO COMPLETION, DATED MARCH __, 1994
PROSPECTUS [ConAgra Logo]
$450,000,000
CONAGRA CAPITAL, L.C.
Preferred Securities
and
CONAGRA, INC.
Debt Securities
______________________
ConAgra, Inc. ("ConAgra") from time to time may offer its
debt securities (the "Debt Securities"), at an aggregate initial
offering price not to exceed the equivalent of $450,000,000, in
separate series in amounts and prices and on terms to be
determined at the time of sale. The Debt Securities may be
denominated in U.S. dollars or in any other currency, including
composite currencies such as the European Currency Unit, as may
be designated by ConAgra (the "Specified Currency"). Debt
Securities may be sold for U.S. dollars or any other currency,
including composite currencies and the principal of and any
interest on Debt Securities may likewise be payable in U.S.
dollars, or in any other currency, including composite
currencies, in each case, as ConAgra specifically designates.
ConAgra Capital, L.C. ("ConAgra Capital"), an indirectly
wholly-owned finance subsidiary of ConAgra, may also offer from
time to time its preferred interests ("Preferred Securities"), in
one or more series, at an aggregate initial public offering price
not to exceed $450,000,000 at the time of sale. Any issue of
Preferred Securities shall correspondingly reduce the amount of
Debt Securities available for offer and sale hereunder. The
payment of distributions (herein referred to as "dividends"), if
and to the extent declared out of moneys held by ConAgra Capital
and legally available therefor, and to the extent funds are
legally available therefor payments on liquidation or redemption
with respect to the Preferred Securities are guaranteed on a
subordinated basis (the "Guarantee") by ConAgra to the extent set
forth herein. No portion of the dividends received by a holder
of the Preferred Securities will be eligible for the dividends
received deduction for federal income tax purposes. The
Guarantee will rank subordinate and junior in right of payment to
all other liabilities of ConAgra and pari passu to the most
senior preferred stock issued by ConAgra and senior to ConAgra's
common stock. See "ConAgra", "Description of Preferred
Securities--Miscellaneous," "Description of the Guarantee" and
"Description of the Debentures" for a description of the various
contractual backup obligations of ConAgra relating to the
Preferred Securities.
Specific terms of the securities in respect of which this
Prospectus is being delivered ("Offered Securities") will be set
forth in an accompanying Prospectus Supplement ("Prospectus
Supplement"), together with the terms of the offering of the
Offered Securities, the initial price thereof and the net
proceeds from the sale thereof. The Prospectus Supplement will
set forth with regard to the particular Offered Securities,
without limitation, the following: (i) in the case of Debt
Securities, the specific designation, aggregate principal amount,
authorized denomination, maturity, rate (which may be fixed or
variable) or method of calculation of interest and dates for
payment thereof, and any exchangeability, conversion, redemption,
prepayment or sinking fund provisions and any listing on a
securities exchange, and (ii) in the case of Preferred
Securities, the designation, number of shares or fractional
interests therein, liquidation preference per security, initial
public offering price, dividend rate (or method of calculation
thereof), dates on which dividends shall be payable and dates
from which dividends shall accrue, any voting rights, any
redemption or exchange provisions, any other rights, preferences,
privileges, limitations and restrictions relating to the
Preferred Securities of a specific series, the terms upon which
the proceeds of the sale of the Preferred Securities will be
loaned to ConAgra, and any listing on a securities exchange.
________________
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 COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
_______________
The Offered Securities may be offered directly, through
agents designated from time to time, through dealers or through
underwriters. Such agents or underwriters may act alone or with
other agents or underwriters. See "Plan of Distribution". Any
such agents, dealers or underwriters are set forth in the
Prospectus Supplement. If an agent of ConAgra or a dealer or
underwriter is involved in the offering of the Offered
Securities, the agent's commission, dealer's purchase price,
underwriter's discount and net proceeds to ConAgra will be set
forth in, or may be calculated from, the Prospectus Supplement.
Any underwriters, dealers or agents participating in the offering
may be deemed "underwriters" within the meaning of the Securities
Act of 1933.
This Prospectus may not be used to consummate sales of
Offered Securities unless accompanied by a Prospectus Supplement.
_______________
Smith Barney Shearson Inc.
_______________
The date of this Prospectus is March __, 1994
IN CONNECTION WITH AN OFFERING, THE UNDERWRITERS FOR SUCH
OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICE OF THE OFFERED SECURITIES AT LEVELS
ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE,
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No dealer, salesman or other person has been authorized to
give any information or to make any representation not contained
or incorporated by reference in this Prospectus or any Prospectus
Supplement, and, if given or made, such information or
representation must not be relied upon as having been authorized
by ConAgra, ConAgra Capital or by any underwriter, agent or
dealer. This Prospectus and any Prospectus Supplement shall not
constitute an offer to sell or a solicitation of an offer to buy
any of the securities offered hereby in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation
in such jurisdiction. Neither the delivery of this Prospectus
and any Prospectus Supplement nor any sale made thereunder shall,
under any circumstances, create any implication that the
information therein is correct as of any time subsequent to the
date thereof.
_______________
AVAILABLE INFORMATION
ConAgra 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"). The registration statement of which this
Prospectus forms a part, as well as reports, proxy statements and
other information filed by ConAgra, may be inspected and copied
at the public reference facilities maintained by the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Commission's regional offices at 500 West Madison Street,
Chicago, Illinois 60661-2511 and 7 World Trade Center, New York,
New York 10048. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
Reports and other information herein and therein concerning
ConAgra can also be inspected at the office of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of Registration Statement
on Form S-3 (together with all amendments and exhibits thereto,
the "Registration Statement") filed with the Commission under the
Securities Act of 1933 (the "Securities Act") with respect to the
Offered Securities. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain
parts of which are omitted in accordance with the rules and
regulations of the Commission. Reference is made to such
Registration Statement and to the exhibits relating thereto for
further information with respect to ConAgra and the Offered
Securities. Any statements contained herein concerning the
provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission or
incorporated by reference herein are not necessarily complete,
and in each instance reference is made to the copy of such
document so filed for a more complete description of the matter
involved. Each such statement is qualified in its entirety by
such reference.
No separate financial statements of ConAgra Capital have
been included herein. ConAgra and ConAgra Capital do not
consider that such financial statements would be material to
holders of Preferred Securities of ConAgra Capital because
ConAgra Capital is a newly organized special purpose entity, has
no operating history and no independent operations and is not
engaged in, and does not propose to engage in, any activity other
than the issuance of its securities and the lending of the
proceeds thereof to ConAgra. See "ConAgra Capital, L.C.".
ConAgra Capital is a limited liability company organized under
the laws of the state of Iowa and will be managed by certain
indirect wholly-owned subsidiaries of ConAgra, which subsidiaries
beneficially own all of ConAgra Capital's common securities,
which are non-transferable.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed with the
Commission, are hereby incorporated by reference:
1. Annual Report on Form 10-K of ConAgra for the fiscal year
ended May 30, 1993; and
2. Quarterly Reports on Form 10-Q of ConAgra for the fiscal
quarters ended August 29, 1993 and November 28, 1993.
All documents filed by ConAgra after the date of this
Prospectus pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the termination of the offering of the
Offered Securities offered hereby, shall be deemed to be
incorporated herein by reference and to be a part hereof from the
date of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes
such statement. Any such statements as modified or superseded
shall be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
ConAgra will provide without charge to each person to whom a
copy of this Prospectus is delivered, upon written or oral
request of such person, a copy of any or all of the documents
referred to above which have been or may be incorporated by
reference in this Prospectus (other than certain exhibits to such
documents). Requests for such documents may be made by writing
ConAgra, Inc., One ConAgra Drive, Omaha, Nebraska 68102-5001
(Attention: Corporate Communications Department) or by calling
(402) 595-4157.
THE COMPANY
ConAgra is a diversified food company operating across the
food chain in three industry segments: Agri-Products, Trading &
Processing, and Prepared Foods.
In the Agri-Products segment, ConAgra is a leading
distributor of crop protection chemicals. ConAgra also
formulates pesticides, produces animal health care products and
markets animal health care products by direct mail. ConAgra is a
producer of formula feed and feed additives; a distributor,
merchandiser, and marketer of fertilizer; and a specialty
retailer with over 200 farm stores and fabric and crafts stores
located principally in agricultural areas.
In the Trading & Processing segment, ConAgra is a leading
U.S. flour miller. ConAgra also mills oats and dry corn;
manufactures brewers malt; packages private label flour, corn
meal, and mixes; markets specialty food ingredients; and
merchandises feed ingredients. ConAgra is a worldwide trader of
grain, oilseeds, fertilizer, edible beans and peas, sulfur, wool
and other commodities. ConAgra has processing and/or trading
operations in Canada, Australia, Europe, Asia and Latin America
as well as in the U.S.
In the Prepared Foods segment, ConAgra is a leading producer
and marketer of frozen prepared foods, shelf-stable prepared
foods, fresh red meats, branded processed red meats, chicken and
turkey products, seafood products, cheese and other dairy
products and potato products. ConAgra markets steaks and other
premium food products by direct mail and manufactures and markets
pet accessories and home sewing products. ConAgra's prepared
food brands include Armour, Chun King Frozen, Banquet, Healthy
Choice, Kid Cuisine, Country Pride, Country Skillet, Monfort,
Pfaelzer, Longmont, Morton, Patio, Taste O'Sea, Decker, Armour
Classics, Golden Star, Webber Farms, World's Fare, Cook's,
Singleton, Hunt's, Wesson, Manwich, Orville Redenbacher's, Peter
Pan, Snack Pack, Swiss Miss, La Choy, Rosarita, Gebhardt,
Butterball, Swift Premium, Eckrich, Treasure Cave, County Line,
Reddi-Wip and Act II.
ConAgra's finance businesses provide specialized, self-
financed financial services related to the food industry.
Borrowings of the finance businesses are not guaranteed by
ConAgra. The principal businesses are commodity futures
brokerage, included in the Trading & Processing segment, and
financing, leasing and insurance services for the red meat
business included in the Prepared Foods segment.
Acquisitions have contributed substantially to ConAgra's
sales and earnings growth, both in the years of acquisition and
in subsequent years. Major acquisitions have included United
Agri Products, Banquet Foods, Country Pride Foods, Peavey
Company, Monfort of Colorado, the Morton, Chun King and Patio
frozen food businesses, SIPCO (formerly Swift Independent Packing
Company), the assets of Armour Food Company, 50% of Trident
Seafoods, Pillsbury's grain merchandising business, eight U.S.
flour mills acquired from International Multifoods, Beatrice
Company, the assets of Elders' malt and wool business in
Australia, approximately 91% of Elders' beef business in
Australia, and Golden Valley Microwave Foods. ConAgra
anticipates that it will continue to grow internally and through
acquisitions.
Certain of ConAgra's businesses are subject to significant
variation in performance as a consequence of seasonal, cyclical
or other industry conditions. For example, ConAgra's fertilizer
business is seasonal, with stronger profits expected during the
spring planting season. The poultry industry has traditionally
been cyclical, with margins expanding and contracting as
production contracts and expands. ConAgra's international
trading businesses' results are affected by political, economic
and environmental factors which influence commodity prices and
markets. In the short to intermediate term, ConAgra's reported
earnings can be favorably or unfavorably impacted in a material
way if industry conditions in a number of businesses are either
positive or negative at the same time.
ConAgra's principal executive office is located at One
ConAgra Drive, Omaha, Nebraska 68102-5001, telephone (402) 595-
4000.
CONAGRA CAPITAL
ConAgra Capital, wholly-owned by two indirect wholly-owned
subsidiaries of ConAgra (the "Subsidiaries"), is a limited
liability company organized under the laws of the state of Iowa.
The principal executive offices of ConAgra Capital and its
Managing Members (as defined below) are presently located at One
ConAgra Drive, Omaha, Nebraska 68102-5001, telephone: (402) 595-
4000. The Subsidiaries own all of the common interests ("Common
Securities") of ConAgra Capital, which Common Securities are
nontransferable. The Subsidiaries have unlimited liability for
the debts, obligations and liabilities of ConAgra Capital.
ConAgra Capital exists solely for the purpose of issuing
preferred and common securities and lending the net proceeds
thereof to ConAgra.
Financial statements of ConAgra Capital will be made
available to holders of Preferred Securities annually as soon as
practicable after the end of ConAgra Capital's fiscal year.
ConAgra and ConAgra Capital have entered into an agreement
pursuant to which ConAgra has agreed to guarantee the payment of
any liabilities incurred by ConAgra Capital (other than
obligations to holders of Preferred Securities). The agreement
expressly provides that such agreement is for the benefit of, and
is enforceable by, third parties to whom ConAgra Capital owes
such obligations.
USE OF PROCEEDS
ConAgra intends to add the net proceeds from the sale of
Offered Securities to its general funds, to be used for general
corporate purposes, including working capital, capital
expenditures, the repayment of commercial paper, repayment of
loans under bank credit agreements and repayment of other short
and intermediate term borrowings. Prior to such application,
such net proceeds may be invested in short or intermediate term
securities. Except as may be indicated in the Prospectus
Supplement, no specific determination as to the use of the
proceeds of the Offered Securities in respect to which this
Prospectus is being delivered has been made. ConAgra anticipates
that it will raise additional funds from time to time through
equity or debt financing, including borrowings under its
revolving credit agreements, to finance its businesses worldwide.
ConAgra Capital will loan to ConAgra all proceeds received by
ConAgra Capital from the sale of its Preferred Securities.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to
combined fixed charges and preferred stock dividends for the
periods indicated.
Six Months
Ended Fiscal Years Ended May
Nov. 28 -------------------------------------------------
1993 1993 1992 1991 1990 1989
---------- ---- ---- ---- ---- ----
2.7 2.5 2.2 2.2 2.5 2.4
For the purpose of computing the above ratio of earnings to
combined fixed charges and preferred stock dividends, earnings
consist of income before taxes and fixed charges. Fixed charges,
for the purpose of computing earnings, are adjusted to exclude
interest capitalized and that component of fixed charges
representing ConAgra's proportionate share of the preferred stock
dividend requirement of a 50% owned subsidiary. Fixed charges
include interest on both long and short term debt (whether said
interest is expensed or capitalized and including interest
charged to cost of goods sold), a portion of noncancellable
rental expense representative of the interest factor and
ConAgra's proportionate share of the preferred stock dividend
requirement of a 50% owned subsidiary, excluding that which would
be eliminated in consolidation. Preferred stock dividend
requirements are computed by increasing preferred stock dividends
to an amount representing pre-tax earnings which would be
required to cover such dividend requirements. The ratio is
computed using the amounts for ConAgra as a whole, including its
majority-owned subsidiaries, whether or not consolidated, and its
proportionate shares of any 50% owned subsidiaries whether or not
ConAgra guarantees obligations of these subsidiaries.
DESCRIPTION OF PREFERRED SECURITIES
The following is a summary of certain terms and provisions
of the Preferred Securities of any series. Certain terms and
provisions of the Preferred Securities of a particular series
will be summarized in the Prospectus Supplement relating to the
Preferred Securities of such series. If so indicated in the
Prospectus Supplement, the terms and provisions of the Preferred
Securities of a particular series may differ from the terms set
forth below. The summaries set forth below and in the applicable
Prospectus Supplement address the material terms of the Preferred
Securities of any particular series but do not purport to be
complete and are subject to, and qualified in their entirety by
reference to, the Articles of Organization of ConAgra Capital
(the "Certificate"), the Operating Agreement of ConAgra Capital
(the "Agreement") and the resolutions adopted, or to be adopted,
by the Subsidiaries, in their capacity as the holders of all of
ConAgra Capital's Common Securities (the "Managing Members"),
establishing the rights, preferences, privileges, limitations and
restrictions relating to the Preferred Securities of any series
or of a particular series. Copies of the Certificate and the
Agreement have been filed as exhibits to the Registration
Statement of which this Prospectus forms a part. Pursuant to the
Certificate, holders of the Preferred Securities are bound by the
Agreement.
General
ConAgra Capital is authorized to issue common securities and
preferred securities. The preferred securities may be issued in
one or more series or classes, with such dividend rights,
liquidation preferences, redemption provisions, voting rights and
other rights, preferences, privileges, limitations and
restrictions as shall be set forth in the Agreement and the
resolutions providing for the issuance thereof adopted by the
Managing Members. All of the Preferred Securities, to be issued
in one or more series or classes, will rank pari passu with each
other with respect to participation in profits and assets.
The Preferred Securities of any series will be issued in
registered form only without dividend coupons. Registration of,
and registration of transfers of, the Preferred Securities of any
series will be by book entry only. The Preferred Securities of
any series will have the dividend rights, rights upon
liquidation, redemption provisions and voting rights set forth
below, unless otherwise provided in the Prospectus Supplement
relating to the Preferred Securities of a particular series.
Reference is made to the Prospectus Supplement relating to the
Preferred Securities of a particular series for specific terms,
including (i) the designation of the Preferred Securities of such
series, (ii) the price at which the Preferred Securities of such
series will be issued, (iii) the dividend rate (or method of
calculation thereof), the dates on which dividends will be
payable and the dates from which dividends shall accrue, (iv) the
voting rights, if any, (v) any redemption or exchange provisions,
which may include any exchange of the Preferred Securities as a
result of changes in or other developments in applicable tax law,
(vi) the stated liquidation preference, (vii) any other rights,
preferences, privileges, limitations and restrictions relating to
the Preferred Securities of such series and (viii) the terms upon
which the proceeds from the sale of the Preferred Securities of
such series will be loaned to ConAgra.
Dividends
Dividends on the Preferred Securities will be cumulative.
Cumulative dividends on any series of Preferred Securities will
accrue from the date specified in the applicable Prospectus
Supplement and will be payable monthly in arrears on the last day
of each calendar month of each year, commencing on the date
specified in the Prospectus Supplement relating to such series.
The dividend payable on Preferred Securities of a particular
series will be fixed at the rate per annum specified in the
Prospectus Supplement relating to such series. The amount of
dividends payable for any full monthly dividend period will be
computed on the basis of twelve 30-day months and a 360-day year
and, for any period shorter than a full monthly dividend period,
will be computed on the basis of the actual number of days
elapsed in such period. ConAgra Capital may only pay dividends
to the extent it has funds legally available to make such
payments. See "Description of the Guarantee" and "Description of
the Debentures" below.
Dividends on the Preferred Securities of any series will be
declared by the Managing Members of ConAgra Capital to the extent
that the Managing Members reasonably anticipate that at the time
of payment ConAgra Capital will have, and must be paid by ConAgra
Capital to the extent that at the time of proposed payment it
has, (i) funds legally available for the payment of such
dividends and (ii) cash on hand sufficient to permit such
payments. It is anticipated that ConAgra Capital's funds will be
limited to payments under the debentures (the "Debentures")
issued by ConAgra that will evidence the loans to be made by
ConAgra Capital to ConAgra of the proceeds of (i) Preferred
Securities of each series and (ii) ConAgra Capital's Common
Securities and related capital contributions. See "Description
of the Debentures."
Dividends declared on the Preferred Securities of any series
will be payable to the record holders thereof as they appear on
the register for the Preferred Securities of such series on the
relevant record dates, which will be, unless otherwise specified
in the Prospectus Supplement relating to each such series, one
Business Day (as hereinafter defined) prior to the relevant
payment dates. Subject to any applicable fiscal or other laws
and regulations, each such payment will be made as described
under "Book-Entry-Only Issuance; The Depository Trust Company"
below. In the event that any date on which dividends are payable
on the Preferred Securities of any series is not a Business Day,
then payment of the dividend payable on such date will be made on
the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if
made on such date. A "Business Day" shall mean any day other
than a day on which banking institutions in The City of New York
are authorized or required by law to close.
Except as described herein and in the Prospectus Supplement
relating to the Preferred Securities of a particular series,
holders of the Preferred Securities of any series will have no
other right to participate in the profits of ConAgra Capital.
Certain Restrictions on ConAgra Capital
If dividends have not been paid in full on the Preferred
Securities of any series, ConAgra Capital shall not:
(i) pay, or declare and set aside for payment, any
dividends on the Preferred Securities of any other series or
any other preferred securities in ConAgra Capital ranking
pari passu with the Preferred Securities of such series as
regards participation in profits of ConAgra Capital
("ConAgra Capital Dividend Parity Securities"), unless the
amount of any dividends declared on any ConAgra Capital
Dividend Parity Securities is paid on ConAgra Capital
Dividend Parity Securities and the Preferred Securities of
such series on a pro rata basis on the date such dividends
are paid on such ConAgra Capital Dividend Parity Securities,
so that
(x) (A) the aggregate amount paid as dividends on
the Preferred Securities of such series bears to (B)
the aggregate amount paid as dividends on ConAgra
Capital Dividend Parity Securities the same ratio as
(y) (A) the aggregate of all accumulated arrears
of unpaid dividends on the Preferred Securities of such
series bears to (B) the aggregate of all accumulated
arrears of unpaid dividends on ConAgra Capital Dividend
Parity Securities;
(ii) pay, or declare and set aside for payment, any
dividends on any securities in ConAgra Capital ranking
junior to the Preferred Securities of such series as to
dividends ("ConAgra Capital Dividend Junior Securities"); or
(iii) redeem, purchase or otherwise acquire any
ConAgra Capital Dividend Parity Securities or ConAgra
Capital Dividend Junior Securities;
until, in each case, such time as all accumulated arrearages of
unpaid dividends on the Preferred Securities of such series shall
have been paid in full for all dividend periods terminating on or
prior to, in the case of clauses (i) and (ii), such payment, and
in the case of clause (iii), the date of such redemption,
purchase or other acquisition. So long as the Preferred
Securities of any series are represented by one or more global
certificates, dividends on such series of Preferred Securities
shall have been paid in full with respect to any dividend payment
date for such series when the amount of dividends payable on such
date has been paid to The Depository Trust Company ("DTC"). See
"Book-Entry-Only Issuance; The Depository Trust Company." As of
the date of this Prospectus, there are no ConAgra Capital
Dividend Parity Securities outstanding.
ConAgra Capital may not consolidate or merge with, or
convey, transfer or lease its properties and assets substantially
as an entirety to any corporation or other body, except as
described below. ConAgra Capital may, for purposes of changing
its state of domicile, without the consent of the holders of the
Preferred Securities of any series, consolidate or merge with or
into a limited liability company or limited partnership formed
under the laws of any state of the United States of America;
provided that (i) such successor limited liability company or
limited partnership expressly assumes all of the obligations of
ConAgra Capital under each series of Preferred Securities then
outstanding, (ii) ConAgra expressly acknowledges such successor
as the holder of all of the Debentures relating to each series of
Preferred Securities then outstanding, (iii) such merger or
consolidation does not cause any series of Preferred Securities
then outstanding to be delisted by any national securities
exchange or other organization on which such series is then
listed, (iv) holders of outstanding Preferred Securities do not
suffer any adverse tax consequences as a result of such merger or
consolidation, (v) such merger or consolidation does not cause
any series of Preferred Securities to be downgraded by any
"nationally recognized statistical rating organization," as that
term is defined by the Commission for purposes of Rule 436(g)(2)
under the Securities Act and (vi) following such merger or
consolidation, ConAgra and such successor limited liability
company or limited partnership are in compliance with the
Investment Company Act of 1940, as amended.
The Managing Members are authorized and directed to conduct
their affairs and to operate ConAgra Capital in such a way that
ConAgra Capital would not be deemed to be an "investment company"
for purposes of the Investment Company Act of 1940, as amended.
In this connection, the Managing Members are authorized to take
any action not inconsistent with applicable law, the Certificate
or the Agreement which they determine in their discretion to be
necessary or desirable for such purposes.
Redemption
The Preferred Securities of a series will be redeemable at
the option of ConAgra Capital and subject to the prior consent of
ConAgra, in whole or in part from time to time, on or after the
date specified in the Prospectus Supplement relating to such
series, at the stated liquidation preference per security for
such series, plus accumulated and unpaid dividends (whether or
not declared) (the "Redemption Price") to the date fixed for
redemption (the "Redemption Date"). The Preferred Securities of
any series may also be redeemed at the option of ConAgra on such
terms and conditions as may be set forth in the Prospectus
Supplement relating to such series.
In the event that fewer than all the outstanding Preferred
Securities of a particular series are to be redeemed, except as
described below, the Preferred Securities of such series to be
redeemed will be selected as described under "Book-Entry-Only
Issuance; The Depository Trust Company" below.
The Preferred Securities of any series will also be redeemed
at the Redemption Price with the proceeds from the repayment by
ConAgra when due or prepayment by ConAgra as described under
"Description of the Debentures -- Optional Prepayment" of the
Debentures relating to such series, subject to the provisions in
clause (iii) under "Certain Restrictions on ConAgra Capital"
above. Notwithstanding the foregoing, the Preferred Securities
of any series will not be redeemed when the Debentures relating
to the Preferred Securities of such series are due if ConAgra
elects to exchange such Debentures for new debentures or to repay
such Debentures and reborrow the proceeds from such repayment nor
will such Preferred Securities be redeemed if such Debentures are
prepaid as described under "Description of the Debentures --
Optional Prepayment" and ConAgra elects to reborrow the proceeds
from such prepayment; provided that ConAgra may not so elect to
exchange any such Debentures or to reborrow the proceeds from any
repayment or prepayment of such Debentures, unless at the time of
each such exchange or reborrowing ConAgra Capital owns all of
such Debentures and, as determined in the judgment of the
Managing Members and ConAgra Capital's financial advisor
(selected by the Managing Members and who shall be unaffiliated
with ConAgra and shall be among the 30 largest investment banking
firms, measured by total capital, in the United States at the
time new debentures are to be issued in connection with such
exchange or reborrowing), (a) ConAgra is not bankrupt, insolvent
or in liquidation, (b) ConAgra is not in default on any Debenture
pertaining to Preferred Securities of any series, (c) ConAgra has
made timely payments on the repaid Debentures for the immediately
preceding 18 months, (d) ConAgra Capital is not in arrears on
payments of dividends on the Preferred Securities of such series,
(e) there is no then present reason to believe ConAgra will be
unable to make timely payment of principal and interest on such
new debentures, (f) such new loan is being made on terms, and
under circumstances, that are consistent with those which a
lender would then require for a loan to an unrelated party, (g)
such new loan is being made at a rate sufficient to provide
payments equal to or greater than the amount of dividend payments
required under the Preferred Securities of such series, (h) such
new loan is being made for a term that is consistent with market
circumstances and ConAgra's financial condition, (i) immediately
prior to the making of such new loan, the senior unsecured long-
term debt of ConAgra is (or if no such debt is outstanding, would
be) rated not less than BBB (or the equivalent) by Standard &
Poor's Corporation and Baa1 (or the equivalent) by Moody's
Investors Service, Inc. (or if either of such rating
organizations is not then rating ConAgra's senior unsecured long-
term debt, the equivalent of such rating by any other "nationally
recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under
the Securities Act) and any subordinated long-term debt of
ConAgra or, if there is no such debt then outstanding, the
Preferred Securities of such series, are rated not less than BBB-
(or the equivalent) by Standard & Poor's Corporation or Baa3 (or
the equivalent) by Moody's Investors Service, Inc. or the
equivalent of either such rating by any other "nationally
recognized statistical rating organization" and (j) such new
debentures will have a final maturity no later than the one
hundredth anniversary of the issuance of the Preferred Securities
of the first series issued.
ConAgra Capital may not redeem any Preferred Securities of
any series unless all accumulated arrearages of unpaid dividends
have been paid on all Preferred Securities of all series for all
monthly dividend periods terminating on or prior to the date of
redemption.
If ConAgra Capital gives a notice of redemption in respect
of Preferred Securities of a particular series, then, by 12:00
noon, New York time, on the applicable Redemption Date, ConAgra
Capital will irrevocably deposit with DTC funds sufficient to pay
the applicable Redemption Price and will give DTC irrevocable
instructions and authority to pay the Redemption Price to the
holders thereof. See "Book-Entry-Only Issuance; The Depository
Trust Company." If notice of redemption shall have been given
and funds deposited as required, then upon the date of such
deposit, all rights of holders of such Preferred Securities of a
series so called for redemption will cease, except the right of
the holders of such securities to receive the Redemption Price,
but without interest, and such securities will cease to be
outstanding. In the event that any date on which any payment in
respect of the redemption of Preferred Securities of any series
is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will
be made on the immediately preceding Business Day. In the event
that payment of the Redemption Price in respect of Preferred
Securities of any series is improperly withheld or refused and
not paid either by ConAgra Capital or by ConAgra pursuant to the
Guarantee, dividends on such securities will continue to accrue,
at the then applicable rate, from the Redemption Date originally
established by ConAgra Capital for such securities to the date
such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes
of calculating the Redemption Price.
Subject to the foregoing and applicable law (including,
without limitation, U.S. federal securities laws) ConAgra or its
subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities of any series by tender, in the
open market or by private agreement.
Liquidation Distribution
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of ConAgra Capital, the holders of
Preferred Securities of each series at the time outstanding will
be entitled to receive out of the assets of ConAgra Capital
legally available for distribution to securityholders, before any
distribution of assets is made to holders of common securities of
ConAgra Capital or any other class of securities in ConAgra
Capital ranking junior to the Preferred Securities as regards
participation in assets of ConAgra Capital, but together with the
holders of Preferred Securities of any other series or any other
preferred securities of ConAgra Capital outstanding ranking pari
passu with the Preferred Securities as regards participation in
the assets of ConAgra Capital ("ConAgra Capital Liquidation
Parity Securities"), an amount equal, in the case of the holders
of the Preferred Securities of such series, to the aggregate of
the stated liquidation preference for Preferred Securities of
such series as set forth in the Prospectus Supplement and all
accumulated and unpaid dividends (whether or not declared) to the
date of payment (the "Liquidation Distribution"). If, upon any
such liquidation, the Liquidation Distributions can be paid only
in part because ConAgra Capital has insufficient assets available
to pay in full the aggregate Liquidation Distributions and the
aggregate maximum liquidation distributions on ConAgra Capital
Liquidation Parity Securities, then the amounts payable directly
by ConAgra Capital on the Preferred Securities of such series and
on such ConAgra Capital Liquidation Parity Securities shall be
paid on a pro rata basis, so that
(i)(x) the aggregate amount paid as Liquidation
Distributions on the Preferred Securities of such
series bears to (y) the aggregate amount paid as
liquidation distributions on ConAgra Capital
Liquidation Parity Securities the same ratio as
(ii)(x) the aggregate Liquidation Distribution
bears to (y) the aggregate maximum liquidation
distributions on ConAgra Capital Liquidation Parity
Securities.
Pursuant to the Agreement, ConAgra Capital will
automatically dissolve and be liquidated (i) when the period
fixed for the life of ConAgra Capital expires, (ii) if the
Managing Members by resolution require ConAgra Capital to be
wound up and dissolved (subject to the voting rights of the
holders of the Preferred Securities described in "Voting Rights")
or (iii) upon the bankruptcy, insolvency or liquidation of either
Managing Member.
Voting Rights
The holders of the Preferred Securities have no voting
rights except as described herein or in the applicable Prospectus
Supplement. If (i) ConAgra Capital fails to pay dividends in
full on the Preferred Securities of any series for 18 consecutive
monthly dividend periods; (ii) an Event of Default (as defined in
the Debentures) occurs and is continuing on the Debentures; or
(iii) ConAgra is in default on any of its payment or other
obligations under the Guarantee (as described under "Description
of the Guarantee -- Certain Covenants of ConAgra"), then the
holders of a majority in stated liquidation preference of the
outstanding Preferred Securities of such series, together with
the holders of any other preferred securities in ConAgra Capital
having the right to vote for the appointment of a trustee in such
event, acting as a single class, will be entitled to appoint and
authorize a trustee to enforce ConAgra Capital's rights under the
Debentures against ConAgra, enforce the obligations undertaken by
ConAgra under the Guarantee and declare and pay dividends on the
Preferred Securities of such series. For purposes of determining
whether ConAgra Capital has failed to pay dividends in full for
18 consecutive monthly dividend periods, dividends shall be
deemed to remain in arrears, notwithstanding any payments in
respect thereof, until full cumulative dividends have been or
contemporaneously are declared and paid with respect to all
monthly dividend periods terminating on or prior to the date of
payment of such full cumulative dividends. Not later than 30
days after such right to -appoint a trustee arises, the Managing
Members will convene a meeting for the above purpose. If the
Managing Members fail to convene such meeting within such 30-day
period, the holders of 10% in stated liquidation preference of
the outstanding Preferred Securities of such series and such
other preferred securities will be entitled to convene such
meeting. The provisions of the Agreement relating to the
convening and conduct of meetings of securityholders will apply
with respect to any such meeting. Any trustee so appointed shall
vacate office immediately, subject to the terms of such other
preferred securities, if ConAgra Capital shall have paid in full
all accumulated and unpaid dividends on the Preferred Securities
of such series or such default or breach by ConAgra shall have
been cured.
If any resolution is proposed for adoption by the
securityholders of ConAgra Capital providing for, or the Managing
Members propose to take any action to effect, (x) any variation
or abrogation of the rights, preferences and privileges of the
Preferred Securities of any series by way of amendment of the
Agreement or otherwise (including, without limitation, the
authorization or issuance of any securities in ConAgra Capital
ranking, as to participation in the profits or assets of ConAgra
Capital, senior to the Preferred Securities) which variation or
abrogation adversely affects the holders of Preferred Securities
of such series, (y) the liquidation, dissolution or winding up of
ConAgra Capital or (z) the commencement of any bankruptcy,
insolvency, reorganization or other similar proceeding involving
ConAgra Capital in the United States or any state thereof, then
the holders of outstanding Preferred Securities of such series
(and, in the case of a resolution described in clause (x) above
which would adversely affect the rights, preferences or
privileges of any ConAgra Capital Dividend Parity Securities or
any ConAgra Capital Liquidation Parity Securities, such ConAgra
Capital Dividend Parity Securities or such ConAgra Capital
Liquidation Parity Securities, as the case may be, or, in the
case of any resolution described in clause (y) above, all ConAgra
Capital Liquidation Parity Securities or, in the case of any
resolution described in clause (z) above, other than holders of
any Preferred Securities of such series that are also creditors
of ConAgra or any of its subsidiaries) will be entitled to vote
together as a class on such resolution or action of the Managing
Members (but not any other resolution or action) and such
resolution or action shall not be effective except with the
approval of the holders of 66 2/3% in stated liquidation
preference of such outstanding securities (or, under certain
circumstances, 100% in stated liquidation preference of such
outstanding securities); provided, however, that no such approval
shall be required under clauses (y) and (z) if the liquidation,
dissolution or winding up of ConAgra Capital is proposed or
initiated upon the initiation of proceedings, or after
proceedings have been initiated, for the liquidation,
dissolution, or winding up of either of the Managing Members.
The rights attached to the Preferred Securities of any
series will be deemed not to be varied by the creation or issue
of, and no vote will be required for the creation or issue of,
any further securities in ConAgra Capital ranking pari passu with
or junior to the Preferred Securities of any series with regard
to participation in the profits or assets of ConAgra Capital.
Any required approval of holders of Preferred Securities may
be given at a separate meeting of such holders convened for such
purpose or at a meeting of securityholders of ConAgra Capital or
pursuant to written consent. ConAgra Capital will cause a notice
of any meeting at which holders of the Preferred Securities of a
series are entitled to vote, or of any matter upon which action
may be taken by written consent of such holders, to be mailed to
each holder of record of the Preferred Securities of such series.
Each such notice will include a statement setting forth (i) the
date of such meeting or the date by which such action is to be
taken, (ii) a description of any resolution proposed for adoption
at such meeting on which such holders are entitled to vote or of
such matters upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
Notwithstanding that holders of Preferred Securities of any
series are entitled to vote or consent under any of the
circumstances described above, any of the Preferred Securities of
any series that are owned by ConAgra or any entity owned more
than 50% by ConAgra, either directly or indirectly, shall not be
entitled to vote or consent and shall, for the purposes of such
vote or consent, be treated as if they were not outstanding.
Book-Entry-Only Issuance; The Depository Trust Company
DTC, New York, New York, will act as securities depository
for the Preferred Securities. The Preferred Securities will be
issued only as fully-registered securities registered in the name
of Cede & Co. (DTC's partnership nominee). One or more fully-
registered global Preferred Securities certificates will be
issued for each series of Preferred Securities, representing all
of the Preferred Securities of such series, and will be deposited
with DTC.
DTC is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning
of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates.
Direct participants include securities brokers and dealers,
banks, trust companies, clearing corporations, and certain other
organizations ("Direct Participants"). DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange,
Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the DTC system
is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain
a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The Rules
applicable to DTC and its Participants are on file with the
Commission.
Purchases of Preferred Securities under the DTC system must
be made by or through Direct Participants, which will receive a
credit for the Preferred Securities on DTC's records. The
ownership interest of each actual purchaser of each Preferred
Securities ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners
will not receive written confirmation from DTC of their purchase,
but Beneficial Owners are expected to receive written
confirmations providing details of their transactions, as well as
periodic statements of their holdings, from the Direct or
Indirect Participant through which the Beneficial Owner purchased
Preferred Securities. Transfers of ownership interests in the
Preferred Securities are to be accomplished by entries made on
the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing
their ownership interests in Preferred Securities, except in the
event that use of the book-entry system for the Preferred
Securities is discontinued.
To facilitate subsequent transfers, all Preferred Securities
deposited by Participants with DTC are registered in the name of
Cede & Co. The deposit of Preferred Securities with DTC and
their registration in the name of Cede & Co. effect no change in
beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Preferred Securities; DTC's records
reflect only the identity of the Direct Participants to whose
accounts such Preferred Securities are credited, which may or may
not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of
their customers.
Conveyance of notices and other communications by DTC to
Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. If less then
all of the Preferred Securities of any series are being redeemed,
DTC's practice is to determine by lot the amount of the interest
of each Direct Participant in such series to be redeemed.
Although voting with respect to the Preferred Securities is
limited, in those cases where a vote is required, neither DTC nor
Cede & Co. will consent or vote with respect to Preferred
Securities. Under its usual procedures, DTC mails an Omnibus
Proxy to ConAgra Capital as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those Direct Participants to whose accounts the
Preferred Securities are credited on the record date (identified
in a listing attached to the Omnibus Proxy).
Dividend payments on the Preferred Securities will be made
to DTC. DTC's practice is to credit Direct Participants'
accounts on the relevant payable date in accordance with their
respective holdings shown on DTC's records unless DTC has reason
to believe that it will not receive payments on such payable
date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices and
will be the responsibility of such Participant and not of DTC,
ConAgra Capital or ConAgra, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Payment of dividends to DTC will be the responsibility of ConAgra
Capital, disbursement of such payments to Direct Participants
will be the responsibility of DTC and disbursement of such
payments to the Beneficial Owners will be responsibility of
Direct and Indirect Participants.
DTC may discontinue providing its services as securities
depository with respect to the Preferred Securities of any series
at any time by giving reasonable notice to ConAgra Capital and
ConAgra. Under such circumstances, in the event that a successor
securities depository is not obtained, Preferred Securities
certificates for such series are required to be printed and
delivered.
The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that ConAgra
Capital believes to be reliable, but neither ConAgra Capital nor
ConAgra takes responsibility for the accuracy thereof.
Registrar, Transfer Agent and Paying Agent
ConAgra will initially act as registrar, transfer agent and
paying agent for the Preferred Securities.
Registration of transfers of Preferred Securities of any
series will be effected without charge by or on behalf of ConAgra
Capital, but upon payment (with the giving of such indemnity as
ConAgra Capital or ConAgra may require) in respect of any tax or
other governmental charges which may be imposed in relation to
it.
ConAgra Capital will not be required to register or cause to
be registered the transfer of Preferred Securities of a
particular series after such Preferred Securities have been
called for redemption.
Miscellaneous
The Preferred Securities are not subject to any sinking fund
provisions. Holders of Preferred Securities of any series have
no preemptive rights.
ConAgra and ConAgra Capital will enter into an agreement
(the "Expense Agreement") pursuant to which ConAgra will agree to
guarantee the payment of any liabilities incurred by ConAgra
Capital other than obligations to holders of Preferred
Securities, which will be separately guaranteed to the extent set
forth in the Guarantee. See "Description of the Guarantee." The
Expense Agreement will expressly provide that it is for the
benefit of, and is enforceable by, third parties to whom ConAgra
Capital owes such obligations. A copy of the form of Expense
Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part.
DESCRIPTION OF THE GUARANTEE
Set forth below is condensed information concerning the
guarantee (the "Guarantee") which will be executed and delivered
by ConAgra for the benefit of the holders from time to time of
Preferred Securities. This summary contains all material
information concerning the Guarantee but does not purport to be
complete. References to provisions of the Guarantee are
qualified in their entirety by reference to the text of the
Guarantee, a form of which has been filed as an exhibit to the
Registration Statement of which this Prospectus forms a part.
General
ConAgra will irrevocably and unconditionally agree, to the
extent set forth herein, to pay in full, to the holders of the
Preferred Securities of any series, the Guarantee Payments (as
defined below) (except to the extent paid by ConAgra Capital), as
and when due, regardless of any defense, right of set-off or
counterclaim which ConAgra Capital may have or assert. The
following payments to the extent not paid by ConAgra Capital (the
"Guarantee Payments") will be subject to the Guarantee (without
duplication): (i) any accumulated and unpaid dividends which
have been theretofore declared on the Preferred Securities of
such series out of funds legally available therefor, (ii) the
redemption price (including all accumulated unpaid dividends)
payable out of funds legally available therefor with respect to
Preferred Securities of any series called for redemption by
ConAgra Capital and (iii) upon the liquidation of ConAgra
Capital, the lesser of (a) the aggregate of the stated
liquidation preference and all accumulated and unpaid dividends
(whether or not declared) to the date of payment and (b) the
amount of assets of ConAgra Capital legally available for
distribution to holders of Preferred Securities of such series in
liquidation. ConAgra's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by
ConAgra to the holders of Preferred Securities of any series or
by causing ConAgra Capital to pay such amounts to such holders.
Certain Covenants of ConAgra
In the Guarantee, ConAgra will covenant that, so long as any
Preferred Securities of any series remain outstanding, neither
ConAgra nor any majority owned subsidiary of ConAgra will declare
or pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of ConAgra's capital
stock or make any guarantee payments with respect to the
foregoing (other than payments under the Guarantee, payments to
redeem common share purchase rights under ConAgra's shareholder
rights plan dated July 10, 1986, as amended, or the declaration
of a dividend of similar share purchase rights in the future), if
at such time ConAgra will be in default with respect to its
payment or other obligations under the Guarantee or the Expense
Agreement or there shall have occurred any event that, with the
giving of notice or the lapse of time or both, would constitute
an Event of Default under the Debentures then outstanding.
In the Guarantee, ConAgra will also covenant that, so long
as Preferred Securities of any series remain outstanding, it will
(i) not cause or permit any Common Securities of ConAgra Capital
to be transferred, (ii) maintain direct or indirect 100%
ownership of all outstanding securities of ConAgra Capital other
than the Preferred Securities and any other securities permitted
to be issued by ConAgra Capital that would not cause it to become
an "investment company" under the Investment Company Act of 1940,
as amended, (iii) cause at least 21% of the total value of
ConAgra Capital and at least 21% of all interests in the capital,
income, gain, loss, deduction and credit of ConAgra Capital to be
represented by Common Securities, (iv) not voluntarily dissolve,
windup or liquidate ConAgra Capital or either of the Managing
Members, (v) cause the Subsidiaries to remain the Managing
Members of ConAgra Capital and timely perform all of their
respective duties as Managing Members of ConAgra Capital and (vi)
use reasonable efforts to cause ConAgra Capital to remain a
limited liability company and otherwise continue to be treated as
a partnership for U.S. federal income tax purposes; provided that
ConAgra may permit ConAgra Capital to consolidate or merge with
or into another limited liability company or limited partnership
as described above under "Description of Preferred Securities --
Certain Restrictions on ConAgra Capital" so long as ConAgra
agrees to comply with the covenants described in clauses (i)
through (vi) above with respect to such successor limited
liability company or limited partnership.
Amendments and Assignment
Except with respect to any changes which do not adversely
affect the rights of holders of the Preferred Securities (in
which case no vote will be required), the Guarantee may be
amended only with the prior approval of the holders of not less
than 66 2/3% in stated liquidation preference of all Preferred
Securities of all series then outstanding. The manner of
obtaining any such approval of holders of the Preferred
Securities will be as set forth under "Description of Preferred
Securities -- Voting Rights." All guarantees and agreements
contained in the Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of ConAgra and shall
inure to the benefit of the holders of the Preferred Securities
then outstanding.
Termination of the Guarantee
The Guarantee will terminate and be of no further force and
effect as to any series of Preferred Securities upon full payment
of the Redemption Price of all Preferred Securities of such
series or upon the retirement of all Preferred Securities of such
series, and shall terminate completely upon full payment of the
amounts payable upon liquidation of ConAgra Capital. The
Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of Preferred
Securities of any series must restore payment of any sums paid
under the Preferred Securities of such series or the Guarantee.
Status of the Guarantee
The Guarantee will constitute an unsecured obligation of
ConAgra and will rank (i) subordinate and junior in right of
payment to all other liabilities of ConAgra, (ii) pari passu with
the most senior preferred stock now or hereafter issued by
ConAgra and with any guarantee now or hereafter entered into by
ConAgra in respect of any preferred or preference stock of any
affiliate of ConAgra and (iii) senior to ConAgra's common stock.
The Guarantee will constitute a guarantee of payment and not
of collection. A holder of Preferred Securities may enforce the
Guarantee directly against ConAgra, and ConAgra will waive any
right or remedy to require that any action be brought against
ConAgra Capital or any other person or entity before proceeding
against ConAgra. The Guarantee will not be discharged except by
payment of the Guarantee Payments in full to the extent not paid
by ConAgra Capital.
Since ConAgra is a holding company, the rights of ConAgra
and hence the rights of creditors of ConAgra (including the
rights of holders of Preferred Securities under the Guarantee),
to participate in any distribution of the assets of any
subsidiary upon its liquidation or reorganization or otherwise is
necessarily subject to the prior claims of creditors of the
subsidiary, except to the extent that claims of ConAgra itself as
a creditor of the subsidiary may be recognized.
Governing Law
The Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF THE DEBENTURES
Set forth below is condensed information concerning the
Debentures that will evidence the loans to be made by ConAgra
Capital to ConAgra of the proceeds of (i) Preferred Securities of
each series and (ii) ConAgra Capital's Common Securities and
related capital contributions ("Common Securities Payments"). See
"Description of the Indentures" for a summary of the material
provisions of the subordinated indenture dated March 10, 1994
between ConAgra and First Trust National Association as Trustee
(the "Subordinated Indenture"). References to provisions of the
Subordinated Indenture are qualified in their entirety by
reference to the text of the Subordinated Indenture, a form of
which has been filed as an exhibit to the Registration Statement
of which this Prospectus forms a part. All Debentures will be
issued under the Subordinated Indenture.
General
The aggregate dollar amount of the Debentures relating to
Preferred Securities of any series will be set forth in the
Prospectus Supplement for such series and will be equal to the
aggregate liquidation preference of the Preferred Securities of
such series, together with the related Common Interest Payments.
The entire principal amount of all Debentures will become
due and payable, together with any accrued and unpaid interest
thereon, including Additional Interest (as herein defined) if
any, on the earliest of (i) the date that is the fiftieth
anniversary of the issuance of the Preferred Securities of the
first series issued, subject to ConAgra's right to exchange such
Debentures for new debentures or reborrow the proceeds from the
repayment of such Debentures upon the terms and subject to the
conditions set forth under "Description of Preferred Securities -
- Redemption" or (ii) the date upon which ConAgra Capital is
dissolved, wound up or liquidated.
Mandatory Prepayment
If ConAgra Capital redeems Preferred Securities of any
series in accordance with the terms thereof, the Debentures
relating to such series will become due and payable in a
principal amount equal to the aggregate stated liquidation
preference of the Preferred Securities of such series so redeemed
(together with any accrued but unpaid interest, including
Additional Interest, if any, on the portion being prepaid). Any
payment pursuant to this provision shall be made prior to 12:00
noon, New York time, on the date of such redemption or at such
other time on such earlier date as ConAgra Capital and ConAgra
shall agree.
Optional Prepayment
ConAgra has the right to prepay the Debentures relating to
Preferred Securities of a series, without premium or penalty, in
whole or in part (together with any accrued but unpaid interest,
including Additional Interest, if any, on the portion being
prepaid) at any time following the date, if any, set forth in the
Prospectus Supplement for such series.
Interest
The Debentures relating to Preferred Securities of a series
shall bear interest at the annual rate set forth in the
Prospectus Supplement for such series, accruing from the date
they are issued until maturity. Such interest shall be payable
monthly on the last day of each calendar month, commencing on the
date specified in the Prospectus Supplement relating to such
series. In the event that any date on which interest is payable
on such Debentures is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date; provided that ConAgra shall have the right at any time or
times during the term of such Debentures, so long as ConAgra is
not in default in the payment of interest under the Debentures,
to extend the interest payment period up to 18 months, at the end
of which period ConAgra will pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for
such Debentures to the extent permitted by applicable law);
provided further that, during any such extended interest period,
neither ConAgra nor any majority owned subsidiary of ConAgra
shall pay or declare any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its
capital stock (other than payments to redeem common share
purchase rights under ConAgra's shareholder rights plan dated
July 10, 1986, as amended, or to declare a dividend of similar
share purchase rights in the future); and provided further that
any such extended interest period may only be selected with
respect to any Debenture if an extended interest period of
identical length is simultaneously selected for all Debentures.
Prior to the termination of any such extended interest payment
period ConAgra may further extend the interest payment period;
provided that such extended interest payment period, together
with all such further extensions thereof, may not exceed 18
months. Following the termination of any extended interest
payment period, if ConAgra has paid all accrued and unpaid
interest required by the Debentures for such period, then ConAgra
shall have the right to again extend the interest payment period
up to 18 months as herein described. ConAgra shall give ConAgra
Capital notice of its selection of such extended interest payment
period one Business Day prior to the earlier of (i) the date
ConAgra Capital declares the related dividend or (ii) the date
ConAgra Capital is required to give notice of the record or
payment date of such related dividend to the New York Stock
Exchange or other applicable self-regulatory organization or to
holders of the Preferred Securities, but in any event not less
than two Business Days prior to such record date. ConAgra will
cause ConAgra Capital to give such notice of ConAgra's selection
of such extended interest payment period to the holders of the
Preferred Securities.
Additional Interest
In addition, if at any time following the date of the
Prospectus Supplement relating to the Preferred Securities of a
series, ConAgra Capital shall be required to pay, with respect to
its income derived from the interest payments on the Debentures
relating to the Preferred Securities of such series, any amounts
for or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed by the United
States, or any other taxing authority, then, in any such case,
ConAgra will pay as interest such additional amounts ("Additional
Interest") as may be necessary in order that the net amounts
received and retained by ConAgra Capital after the payment of
such taxes, duties, assessments or governmental charges shall
result in ConAgra Capital's having such funds as it would have
had in the absence of the payment of such taxes, duties,
assessments or governmental charges.
Method and Date of Payment
Each payment by ConAgra of principal and interest
(including Additional Interest, if any) on the Debentures shall
be made to ConAgra Capital in lawful money of the United States,
at such place and to such account as may be designated by ConAgra
Capital.
Set-off
Notwithstanding anything to the contrary in the Subordinated
Indenture or Debentures, ConAgra shall have the right to set-off
any payment it is otherwise required to make thereunder with and
to the extent ConAgra has theretofore made, or is concurrently on
the date of such payment making, a payment under the Guarantee.
Subordination
The Subordinated Indenture will provide that ConAgra and
ConAgra Capital covenant and agree (and each holder of Preferred
Securities by acceptance thereof agrees) that each of the
Debentures is subordinate and junior in right of payment to all
Senior Indebtedness as provided in the Subordinated Indenture.
The Subordinated Indenture defines "Senior Indebtedness" as
obligations (other than non-recourse obligations and the
indebtedness issued under the Subordinated Indenture) of, or
guaranteed or assumed by, ConAgra for borrowed money (including
both senior and subordinated indebtedness for borrowed money
(other than the Debentures)), or evidenced by bonds, debentures,
notes or other similar instruments, and amendments, renewals,
extensions, modifications and refundings of any such indebtedness
or obligation, whether existing as of the date of the
Subordinated Indenture or subsequently incurred by ConAgra.
In the event (a) of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, or any proceedings
for liquidation, dissolution or other winding up of ConAgra or a
substantial part of its property, whether or not involving
insolvency or bankruptcy, or (b) that (i) a default shall have
occurred with respect to the payment of principal of (and
premium, if any) or interest on or other monetary amounts due and
payable on any Senior Indebtedness or (ii) there shall have
occurred an event of default (other than a default in the payment
of principal (or premium, if any) or interest, or other monetary
amounts due and payable) with respect to any Senior Indebtedness,
as defined therein or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof (with notice or lapse of time, or
both), and such event of default shall have continued beyond the
period of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default or event
of default shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of or the accrued
interest on the Debentures shall have been declared due and
payable upon an Event of Default and such declaration shall not
have been rescinded and annulled as provided therein, then the
holders of all Senior Indebtedness shall first be entitled to
receive payment of the full amount due thereon, or provision
shall be made for such payment in money or money's worth, before
the holders of any of the Debentures are entitled to receive a
payment on account of the principal of (and premium, if any) or
any interest on the indebtedness evidenced by the Debentures.
Since ConAgra is a holding company, the rights of ConAgra
and hence the rights of creditors of ConAgra (including the
rights of holders of the Debentures), to participate in any
distribution of the assets of any subsidiary upon its liquidation
or reorganization or otherwise is necessarily subject to the
prior claims of creditors of the subsidiary, except to the extent
that claims of ConAgra itself as a creditor of the subsidiary may
be recognized.
Covenants
In the Debentures, ConAgra will covenant that, so long as
any Preferred Securities of any series remain outstanding,
neither ConAgra nor any majority owned subsidiary of ConAgra will
declare or pay any dividend on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of ConAgra's
capital stock or make any guarantee payments with respect to the
foregoing (other than payments under the Guarantee, payments to
redeem common share purchase rights under ConAgra's shareholder
rights plan dated July 10, 1986, as amended, or the declaration
of a dividend of similar share purchase rights in the future) if
at such time ConAgra will be in default with respect to its
payment or other obligations under the Guarantee or the Expense
Agreement or there shall have occurred any event that, with the
giving of notice or the lapse of time or both, would constitute
an Event of Default under the Debentures.
In the Debentures, ConAgra will also covenant that, so long
as Preferred Securities of any series remain outstanding, it will
(i) not cause or permit any Common Securities of ConAgra Capital
to be transferred, (ii) maintain direct or indirect ownership of
all outstanding securities in ConAgra Capital other than the
Preferred Securities and any other securities permitted to be
issued by ConAgra Capital that would not cause it to become an
"investment company" under the Investment Company Act of 1940, as
amended, (iii) cause at least 21% of the total value of ConAgra
Capital and at least 21% of all interests in the capital, income,
gain, loss, deduction and credit of ConAgra Capital to be
represented by Common Securities, (iv) not voluntarily dissolve,
windup or liquidate ConAgra Capital or either of the Managing
Members, (v) cause the Subsidiaries to remain the Managing
Members of ConAgra Capital and timely perform all of their
respective duties as Managing Members of ConAgra Capital, and
(vi) use reasonable efforts to cause ConAgra Capital to remain a
limited liability company and otherwise continue to be treated as
a partnership for U.S. federal income tax purposes; provided that
ConAgra may permit ConAgra Capital to consolidate or merge with
or into another limited liability company as described above
under "Description of Preferred Securities -- Certain
Restrictions on ConAgra Capital" so long as ConAgra agrees to
comply with the covenants described in clauses (i) through (vi)
above with respect to such successor limited liability company.
So long as ConAgra Capital holds the Debentures, it may not
waive compliance or waive any default in compliance by ConAgra of
any covenant or other term in the Debentures or the Subordinated
Indenture without the approval of the same percentage of the
holders of Preferred Securities, obtained in the same manner, as
would be required for an amendment of the Debentures to the same
effect.
Events of Default
If one or more of the following events (each an "Event of
Default") shall occur and be continuing:
(a) ConAgra shall fail to pay when due any interest,
including any Additional Interest, under the Debentures of
any series and such default shall continue for 30 days
(whether or not payment is prohibited by the provisions
described above under "Subordination" or otherwise);
provided that a valid extension of the interest payment
period by ConAgra shall not constitute a default in the
payment of interest for this purpose;
(b) ConAgra shall fail to pay when due any principal
under the Debentures of any series (whether or not payment
is prohibited by the provisions described above under
"Subordination" or otherwise);
(c) ConAgra shall fail to perform or observe any other
term, covenant or agreement contained in the Debentures of
any series for a period of 90 days after written notice
thereof, as provided in the Subordinated Indenture; or
(d) certain events of bankruptcy, insolvency or
reorganization of ConAgra Capital or ConAgra;
then ConAgra Capital will have the right to declare the principal
of and the interest on the Debentures (including any Additional
Interest and any interest subject to an extension election) and
any other amounts payable under the Debentures to be forthwith
due and payable and to enforce its other rights as a creditor
with respect to the Debentures. No Debentures may be so
accelerated by ConAgra Capital unless all Debentures are so
accelerated. Under the terms of the Preferred Securities, the
holders of outstanding Preferred Securities will have the rights
referred to under "Description of Preferred Securities -- Voting
Rights," including the right to appoint a trustee, which trustee
shall be authorized to exercise ConAgra Capital's right to
accelerate the principal amount of the Debentures and to enforce
ConAgra Capital's other creditor rights under the Debentures;
provided that any trustee so appointed shall vacate office
immediately if any such Event of Default shall have been cured by
ConAgra. In addition, in the event ConAgra fails to pay any
principal or interest under the Debentures of any series when
due, holders of Preferred Securities shall, under certain
circumstances, be entitled to enforce ConAgra Capital's right to
receive such payments under all Debentures then outstanding
directly against ConAgra.
Governing Law
The Debentures and Subordinated Indenture will be governed
by and construed in accordance with the laws of the State of New
York.
Miscellaneous
ConAgra shall have the right at all times to assign any of
its rights or obligations under the Debentures to a direct or
indirect wholly owned subsidiary of ConAgra; provided that, in
the event of any such assignment, ConAgra shall remain jointly
and severally liable for all such obligations; and provided
further that ConAgra shall have received an opinion of nationally
recognized tax counsel that such assignment shall not constitute
a taxable event to the holders of Preferred Securities for
federal income tax purposes. ConAgra Capital may not assign any
of its rights under the Debentures without the prior written
consent of ConAgra. Subject to the foregoing, the Debentures
shall be binding upon and inure to the benefit of ConAgra and
ConAgra Capital and their respective successors and assigns. The
Debentures may not otherwise be assigned by ConAgra or ConAgra
Capital, except as described above under "Description of
Preferred Securities -- Certain Restrictions on ConAgra Capital."
Any assignment by ConAgra or ConAgra Capital in contravention of
these provisions will be null and void.
The Subordinated Indenture provides that ConAgra may
consolidate or merge with, or convey, transfer or lease its
properties and assets substantially as an entirety to any other
corporation, provided that such successor corporation expressly
assumes all obligations of ConAgra under the Subordinated
Indenture and certain other conditions are met.
The Debentures may be amended by mutual consent of ConAgra
and the holders thereof in the manner the parties shall agree;
provided that, so long as any of the Preferred Securities remain
outstanding, no such amendment shall be made that adversely
affects the holders of Preferred Securities then outstanding, and
no termination of the Debentures shall occur, without the prior
consent of the holders of not less than 66 2/3% in stated
liquidation preference of all Preferred Securities then
outstanding (or, under certain circumstances, 100% in stated
liquidation preference of all Preferred Securities then
outstanding), unless and until the Debentures and all accrued and
unpaid interest thereon (including Additional Interest, if any)
shall have been paid in full.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a summary of certain United
States federal income tax consequences of the purchase, ownership
and disposition of Preferred Securities and is based upon the
advice of Davis Polk & Wardwell, special United States tax
counsel, with respect to United States federal income taxes. It
deals only with Preferred Securities held as capital assets by
initial purchasers who acquire the Preferred Securities at the
original offering price, and not with special classes of holders,
such as dealers in securities or currencies, life insurance
companies, persons holding Preferred Securities as a hedge or
hedge against currency risks or as part of a straddle, or persons
whose functional currency is not the U.S. dollar. This summary
is based on tax laws in effect in the United States, regulations
thereunder and administrative and judicial interpretations
thereof, as of the date hereof, all of which are subject to
change (possibly on a retroactive basis). This summary deals
only with holders who purchase Preferred Securities of any
series, and is subject to additional discussion of material
United States federal income tax consequences that may appear in
a Prospectus Supplement delivered in connection with a particular
series of Preferred Securities.
PROSPECTIVE PURCHASERS OF PREFERRED SECURITIES ARE ADVISED
TO CONSULT THEIR OWN TAX ADVISORS AS TO THE UNITED STATES OR
OTHER TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION
OF PREFERRED SECURITIES, INCLUDING THE EFFECT OF ANY STATE OR
LOCAL TAX LAWS.
Income from the Preferred Securities
ConAgra Capital will be treated as a partnership for federal
income tax purposes. Each holder of Preferred Securities (a
"Securityholder") will be required to include in gross income the
Securityholder's distributive share of ConAgra Capital's net
income, which will generally be equal to the amount of interest
received or accrued on the Debentures (see below under "Potential
Extension of Payment Period"). Any amount so included in a
Securityholder's gross income will increase its tax basis in the
Preferred Securities, and the amount of cash dividends to the
Securityholder will reduce its tax basis in the Preferred
Securities. No portion of the amounts received on a Preferred
Securities will be eligible for the dividends received deduction.
ConAgra Capital does not presently intend to make an
election under section 754 of the Internal Revenue Code of 1986,
as amended. As a result, a subsequent purchaser of Preferred
Securities will not be permitted to adjust its taxable income
from ConAgra Capital to reflect any difference between its
purchase price for the Preferred Securities and ConAgra Capital's
underlying tax basis for its assets.
Disposition of the Preferred Securities
Gain or loss will be recognized on a sale, exchange or other
disposition of the Preferred Securities (including a distribution
of cash in redemption of all of a Securityholder's Preferred
Securities) equal to the difference between the amount realized
and the Securityholder's tax basis in the Preferred Securities
disposed of. In the case of a cash distribution in partial
redemption of a Securityholder's Preferred Securities, no loss
will be recognized, the Securityholder's tax basis in the
Preferred Securities will be reduced by the amount of the
distribution, and the Securityholder will recognize gain to the
extent, if any, that the amount of the distribution exceeds its
tax basis in the Preferred Securities. Gain or loss recognized
by a Securityholder on the sale or exchange of Preferred
Securities held for more than one year will generally be taxable
as long-term capital gain or loss although under certain
circumstances Securityholders other than initial purchasers who
acquire the Preferred Securities at the original offering price
may be required to treat a portion of the proceeds realized upon
disposition as ordinary income.
Potential Extension of Payment Period
Under the terms of any Debenture evidencing a loan that may
be made from the proceeds of the issuance of Preferred
Securities, ConAgra may be permitted to extend the interest
payment period up to 18 months. In the event that ConAgra
exercises this right, ConAgra may not declare dividends on any
shares of its preferred or common stock, and therefore, the
likelihood of extension of the payment period is, in the view of
ConAgra Capital and ConAgra, remote. In the event that the
payment period is extended, ConAgra Capital will continue to
accrue income, equal to the amount of the interest payment due at
the end of the extended payment period, over the length of the
extended payment period.
Accrued income will be allocated, but not distributed, to
holders of record on the last day of each calendar month. As a
result, beneficial owners during an extended interest payment
period will include interest in gross income in advance of the
receipt of cash and any such holders who dispose of Preferred
Securities prior to the record date for the payment of dividends
following such extended interest payment period will include
interest in gross income but will not receive from ConAgra
Capital any cash related thereto. The tax basis of a Preferred
Securities will be increased by the amount of any interest that
is included in income without a receipt of cash, and will be
decreased again when such holders of record subsequently receive
cash from ConAgra Capital.
United States Alien Holders
For purposes of this discussion, a "United States Alien
Holder" is any corporation, individual, partnership, estate or
trust that is, as to the United States, a foreign corporation, a
non-resident alien individual, a foreign partnership or a non-
resident fiduciary of a foreign estate or trust.
Under present United States federal income tax law:
(i) payments by ConAgra Capital or any of its paying
agents to any holder of a Preferred Securities who or which
is a United States Alien Holder will not be subject to
United States federal withholding tax; provided that (a) the
beneficial owner of the Preferred Securities does not
actually or constructively own 10% or more of the total
combined voting power of all classes of stock of ConAgra
entitled to vote, (b) the beneficial owner of the Preferred
Securities is not a controlled foreign corporation that is
related to ConAgra through stock ownership, and (c) either
(A) the beneficial owner of the Preferred Securities
certifies to ConAgra Capital or its agent, under penalties
of perjury, that it is not a United States holder and
provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds
customers' securities in the ordinary course of its trade or
business (a "Financial Institution") and holds the Preferred
Securities certifies to ConAgra Capital or its agent under
penalties of perjury that such statement has been received
from the beneficial owner by it or by a Financial
Institution between it and the beneficial owner and
furnishes ConAgra Capital or its agent with a copy thereof;
and
(ii) a United States Alien Holder of a Preferred
Securities will not be subject to United States federal
withholding tax on any gain realized upon the sale or other
disposition of Preferred Securities.
ConAgra Capital Information Returns
Within 90 days after the close of every taxable year of
ConAgra Capital, the Managing Members of ConAgra Capital will
furnish each holder of the Preferred Securities with a Schedule
K-1 setting forth such Securityholder's allocable share of income
for ConAgra Capital's taxable year.
Any person who holds Preferred Securities as a nominee for
another person is required to furnish to ConAgra Capital (a) the
name, address and taxpayer identification number of the
beneficial owners and the nominee; (b) notice of whether each
beneficial owner is (i) a person that is not a United States
person, (ii) a foreign government, an international organization
or any wholly owned agency or instrumentality of either of the
foregoing, or (iii) a tax-exempt entity; (c) the amount and
description of Preferred Securities held, acquired or transferred
for the beneficial owners; and (d) certain information including
the dates of acquisitions and transfers, methods of acquisition
and the costs thereof, as well as net proceeds from transfers.
Brokers and financial institutions are required to furnish
additional information, including whether they are a United
States person and certain information on Preferred Securities
they acquire, hold or transfer for their own account. A penalty
of $50 is imposed for each failure to report the above
information to ConAgra Capital, up to a maximum of $100,000 per
calendar year for all failures.
DESCRIPTION OF THE INDENTURES
The Debt Securities are to be issued under either (i) an
indenture (the "Senior Indenture"), dated as of October 8, 1990,
between ConAgra and The Chase Manhattan Bank (National
Association), as trustee, a copy of which has been filed as an
exhibit to the Registration Statement of which this Prospectus
forms a part, or (ii) the Subordinated Indenture, a copy of which
has been filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. The terms of each Indenture
are the same in all material respects, except as described below.
The following is a summary of certain provisions of each
Indenture and does not purport to be complete. Reference is made
to each Indenture for a complete statement of such provisions.
Certain capitalized terms used below are defined in each
Indenture and have the meanings given them in each Indenture.
Section references are to each Indenture. Wherever particular
sections or defined terms of each Indenture are referred to, such
sections or defined terms are incorporated by reference as part
of the statement made, and the statement is qualified in its
entirety by such reference.
The Prospectus Supplement will contain any additional or
revised information with respect to the senior and subordinated
debt outstanding as of the date of the Prospectus Supplement.
General
The Indentures do not limit the amount of debentures, notes
or other evidences of indebtedness which may be issued
thereunder. The Indentures provide that Debt Securities may be
issued from time to time in one or more series and may be
denominated and payable in foreign currencies or units based on
or relating to foreign currencies, including European Currency
Units ("ECUs"). Special United States federal income tax
considerations applicable to any Debt Securities so denominated
will be described in the relevant Prospectus Supplement. The
Debt Securities issued under the Senior Indenture will be
unsecured and will rank pari passu with all other unsecured and
unsubordinated obligations of ConAgra. The Debt Securities
issued under the Subordinated Indenture will be subordinate and
junior in right of payment to the extent and in the manner set
forth in the Subordinated Indenture to all Senior Indebtedness of
ConAgra (see "Subordination").
Reference is made to the Prospectus Supplement for the
following terms of the Debt Securities (to the extent such terms
are applicable to such Debt Securities and are not set forth
herein) offered pursuant thereto (the "Offered Debt Securities"):
(i) designation, aggregate principal amount, purchase price and
denomination; (ii) currency or currency units based on or
relating to currencies in which such Debt Securities are
denominated and/or in which principal (and premium, if any)
and/or any interest will or may be payable; (iii) the date of
maturity; (iv) interest rate or rates (or method by which such
rate will be determined), if any; (v) the dates on which any such
interest will be payable; (vi) the place or places where the
principal of and interest, if any, on the Offered Debt Securities
will be payable; (vii) any redemption or sinking fund provisions;
(viii) whether the Offered Debt Securities will be issuable in
registered form or bearer form and, if Offered Debt Securities in
bearer form are issuable, restrictions applicable to the exchange
of one form for another and to the offer, sale and delivery of
Offered Debt Securities in bearer form; (ix) whether and under
what circumstances ConAgra will pay additional amounts on Offered
Debt Securities held by a person which is not a U.S. person (as
defined in the Prospectus Supplement) in respect of any tax,
assessment or governmental charge withheld or deducted, and if
so, whether ConAgra will have the option to redeem such Debt
Securities rather than pay such additional amounts; and (x) any
other specific terms of the Offered Debt Securities, including
any additional events of default or covenants provided for with
respect to Offered Debt Securities, and any terms which may be
required by or advisable under United States laws or regulations.
Debt Securities may be presented for exchange, and
registered Debt Securities may be presented for transfer in the
manner, at the places and subject to the restrictions set forth
in the Debt Securities and the Prospectus Supplement. Such
services will be provided without charge, other than any tax or
other governmental charge payable in connection therewith, but
subject to the limitations provided in the Indenture. Debt
Securities in bearer form and the coupons, if any, appertaining
thereto will be transferable by delivery.
Debt Securities will bear interest at a fixed rate (a "Fixed
Rate Security") or a floating rate (a "Floating Rate Security").
Debt Securities bearing no interest or interest at a rate which,
at the time of issuance, is below the prevailing market rate,
will be sold at a discount below their stated principal amount.
Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been
issued at a discount for United States federal income tax
purposes will be described in the relevant Prospectus Supplement.
Debt Securities may be issued, from time to time, with the
principal amount payable on any principal payment date, or the
amount of interest payable on any interest payment date, to be
determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors. Holders of
such Debt Securities may receive a principal amount on any
principal payment date, or a payment of interest on any interest
payment date, that is greater than or less than the amount of
principal or interest otherwise payable on such dates, depending
upon the value on such dates of the applicable currency,
commodity, equity index or other factor. Information as to the
methods for determining the amount of principal or interest
payable on any date, the currencies, commodities, equity indices
or other factors to which the amount payable on such date is
linked and certain additional tax considerations will be set
forth in the applicable Prospectus Supplement.
The Indentures contain no covenants or other specific
provisions to afford protection to holders of the Debt Securities
in the event of a highly leveraged transaction or a change in
control of ConAgra, except to the limited extent (i) described
under "Limitations on Liens", "Limitation on Sale and Lease-Back
Transactions" and "Consolidation, Merger, Conveyance or Transfer"
below with respect to the Senior Indenture and (ii) described
under "Consolidation, Merger, Conveyance or Transfer" below with
respect to the Subordinated Indenture. Such covenants or
provisions are not subject to waiver by ConAgra's Board of
Directors without the consent of the holders of not less than a
majority in principal amount of Debt Securities of each series as
described under "Modification of Indenture" below.
Registered Global Securities
The registered Debt Securities of a series may be issued in
the form of one or more fully registered global Debt Securities
(a "Registered Global Security") that will be deposited with a
depositary (the "Depositary"), or with a nominee for a Depositary
identified in the Prospectus Supplement relating to such series.
In such cases, one or more Registered Global Securities will be
issued in a denomination or aggregate denominations equal to the
portion of the aggregate principal amount of outstanding
registered Debt Securities of the series to be represented by
such Registered Global Security or Securities. Unless and until
it is exchanged in whole or in part for Debt Securities in
definitive registered form, a Registered Global Security may not
be transferred except as a whole by the Depositary for such
Registered Global Security to a nominee of such Depositary or by
a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such
nominee to a successor of such Depositary or a nominee of such
successor.
The specific terms of the depositary arrangement with
respect to any portion of a series of Debt Securities to be
represented by a Registered Global Security will be described in
the Prospectus Supplement relating to such series. ConAgra
anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on
its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such
Registered Global Security to the accounts of persons that have
accounts with such Depositary ("participants"). The accounts to
be credited shall be designated by any underwriters or agents
participating in the distribution of such Debt Securities or by
ConAgra if such Debt Securities are offered and sold directly by
ConAgra. Ownership of beneficial interest in a Registered Global
Security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial
interests in such Registered Global Security will be shown on,
and the transfer of that ownership will be effected only through,
records maintained by the Depositary for such Registered Global
Security (with respect to interests of participants) or by
participants or persons that hold through participants (with
respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities
take physical delivery of such securities in definitive form.
Such limits and such laws may impair the ability to transfer
beneficial interests in a Registered Global Security.
So long as the Depositary for a Registered Global Security,
or its nominee, is the registered owner of such Registered Global
Security, such Depositary or such nominee, as the case may be,
will be considered the sole owner or holder of the Debt
Securities represented by such Registered Global Security for all
purposes under the respective Indenture. Except as set forth
below, owners of beneficial interests in a Registered Global
Security will not be entitled to have the Debt Securities
represented by such Registered Global Security registered in
their names, will not receive or be entitled to receive physical
delivery of such Debt Securities in definitive form and will not
be considered the owners or holders thereof under the respective
Indenture.
Principal, premium, if any, and interest payments on Debt
Securities represented by a Registered Global Security registered
in the name of a Depositary or its nominee will be made to such
Depositary or its nominee, as the case may be, as the registered
owner of such Registered Global Security. None of ConAgra, the
Trustee under the respective Indenture or any paying agent for
such Debt Securities will have any responsibility or liability
for any aspect of the records to or payments made on account of
beneficial ownership interests in such Registered Global Security
or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
ConAgra expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any
payment of principal, premium or interest, will immediately
credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the
principal amount of such Registered Global Security as shown on
the records of such Depositary. ConAgra also expects that
payments by participants to owners of beneficial interest in such
Registered Global Security held through such participants will be
governed by standing instructions and customary practices, as is
now the case with the securities held for the accounts of
customers in bearer form registered in "street names," and will
be the responsibility of such participants.
If the Depositary for any Debt Securities represented by a
Registered Global Security is at any time unwilling or unable to
continue as Depositary and a successor Depositary is not
appointed by ConAgra within ninety days or an Event of Default
has occurred and is continuing with respect to such Debt
Securities, ConAgra will issue such Debt Securities in definitive
form in exchange for such Registered Global Security. In
addition, ConAgra may at any time and in its sole discretion
determine not to have the Debt Securities of a series represented
by one or more Registered Global Securities and, in such event,
will issue Debt Securities of such series in definitive form in
exchange for the Registered Global Securities or Securities
representing such Debt Securities.
Further, if ConAgra so specifies with respect to the Debt
Securities of a series, an owner of a beneficial interest in a
Registered Global Securities representing such Debt Securities
may, on terms acceptable to ConAgra and the Depositary for such
Registered Global Securities, receive such Debt Securities in
definitive form. In any such instance, an owner of a beneficial
interest in such a Registered Global Securities will be entitled
to have Debt Securities equal in principal amount to such
beneficial interest registered in its name and will be entitled
to physical delivery of such Debt Securities in definitive form.
Debt Securities so issued in definitive form will, except as set
forth in the applicable Prospectus Supplement, be issued in
denominations of $100,000 and integral multiples of $1,000 in
excess thereof and will be issued in registered form only without
coupons.
Certain Covenants of ConAgra in the Senior Indenture
The following restrictions apply to the Offered Debt
Securities issued under the Senior Indenture unless the
Prospectus Supplement provides otherwise.
Limitations on Liens
The Senior Indenture states that, unless the terms of any
series of Debt Securities provide otherwise, ConAgra will not and
will not permit any Consolidated Subsidiary to issue, assume or
guarantee any indebtedness for money borrowed ("Secured
Indebtedness") secured by a mortgage, pledge security interest or
other lien (a "Lien") upon or with respect to any Principal
Property or on the capital stock of any Consolidated Subsidiary
that owns Principal Property unless (a) ConAgra makes effective
provision whereby the Offered Debt Securities shall be secured by
such Lien equally and ratably with any and all other obligations
and indebtedness thereby secured, or (b) the aggregate amount of
all such Secured Indebtedness of ConAgra and its Consolidated
Subsidiaries, together with all Attributable Debt (as defined in
the Indenture) in respect of Sale and Lease-Back Transactions
existing at such time (with the exception of transactions which
are not subject to the limitation described in "Limitation on
Sale and Lease-Back Transactions" below), would not exceed 10% of
the net tangible assets (as defined in the Indenture) of ConAgra
and the Consolidated Subsidiaries, as shown on the audited
consolidated balance sheet contained in the latest annual report
to stockholders of ConAgra.
Such limitation will not apply to (a) any Lien existing on
any Principal Property at the date of the Indenture, (b) any Lien
created by a Consolidated Subsidiary in favor of ConAgra or any
wholly-owned Consolidated Subsidiary, (c) any Lien existing on
any asset of any corporation at the time such corporation becomes
a Consolidated Subsidiary or at the time such corporation is
merged or consolidated with or into ConAgra or a Consolidated
Subsidiary, (d) any lien on any asset existing at the time of
acquisition thereof, (e) any lien on any asset securing Secured
Indebtedness incurred or assumed for the purpose of financing all
or any part of the cost of acquiring or improving such asset, if
such Lien attaches to such asset concurrently with or without 180
days after the acquisition or improvement thereof, (f) any Lien
incurred in connection with pollution control, industrial revenue
or any similar financing or (g) any refinancing, extension,
renewal or replacement of any of the Liens described in this
paragraph if the principal amount of the Secured Indebtedness
secured thereby is not increased and is not secured by any
additional assets.
The Senior Indenture defines the term "Principal Property"
to mean, as of any date, any building structure or other facility
together with the land upon which it is erected and fixtures
comprising a part thereof, used primarily for manufacturing,
processing or production, in each case located in the United
States, and owned or leased or to be owned or leased by ConAgra
or any Consolidated Subsidiary, and in each case the net book
value of which as of such date exceeds 2% of the net tangible
assets (as defined in the Indenture) of ConAgra and the
Consolidated Subsidiaries, as shown on the audited consolidated
balance sheet contained in the latest annual report to
stockholders of ConAgra, other than any such land, building,
structure or other facility or portion thereof which, in the
opinion of the Board of Directors of ConAgra, is not of material
importance to the business conducted by ConAgra and its
Consolidated Subsidiaries, considered as one enterprise.
The Senior Indenture defines the term "Consolidated
Subsidiary" to mean a subsidiary of ConAgra the accounts of which
are consolidated with those of ConAgra in accordance with
generally accepted accounting principles. (Section 3.6)
Limitation on Sale and Lease-Back Transactions
The Senior Indenture states that, unless the terms of any
series of Debt Securities provide otherwise, neither ConAgra nor
any Consolidated Subsidiary may enter into any arrangement with
any person (other than ConAgra) providing for the leasing by
ConAgra or a Consolidated Subsidiary of any Principal Property
(except for temporary leases for a term of not more than three
years), which property has been or is to be sold or transferred
by ConAgra or a Consolidated Subsidiary to such person (herein
referred as a "Sale and Lease-Back Transaction"). (Sections 3.6
and 3.7)
Such limitation will not apply to any Sale and Lease-Back
Transaction if (a) the net proceeds to ConAgra or such
Consolidated Subsidiary from the sale or transfer equal or exceed
the fair value (as determined by the Board of Directors of
ConAgra) of the property so leased, (b) ConAgra or such
Consolidated Subsidiary would be entitled to incur indebtedness
secured by a Lien on the property to be leased as described in
"Limitation on Liens" above or (c) ConAgra, within 90 days of the
effective date of any such Sale and Lease-Back Transaction,
applies an amount equal to the fair value (as determined by the
Board of Directors of ConAgra) of the property so leased to the
retirement of Funded Indebtedness of ConAgra. (Section 3.7)
Subordination Under the Subordinated Indenture
The Debt Securities issued under the Subordinated Indenture
will be subordinate and junior in right of payment, to the extent
and in the manner set forth in the Subordinated Indenture, to all
"Senior Indebtedness" of ConAgra. The Subordinated Indenture
defines "Senior Indebtedness" as obligations (other than non-
recourse obligations or Debt Securities issued under the
Subordinated Indenture) of, or guaranteed or assumed by, ConAgra
for borrowed money or evidenced by bonds, debentures, notes or
other similar instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation, whether existing as of the date of the Subordinated
Indenture or subsequently incurred by ConAgra. (Section 1.1 and
Article Thirteen)
In the event (a) of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, or any proceedings
for liquidation, dissolution or other winding up of ConAgra or a
substantial part of its property, whether or not involving
insolvency or bankruptcy, or (b) that (i) a default shall have
occurred with respect to the payment of principal of (and
premium, if any) or interest on or other monetary amounts due and
payable on any Senior Indebtedness or (ii) there shall have
occurred an event of default (other than a default in the payment
of principal (or premium, if any) or interest, or other monetary
amounts due and payable) with respect to any Senior Indebtedness,
as defined therein or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof (with notice or lapse of time, or
both), and such event of default shall have continued beyond the
period of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default or event
of default shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of or the accrued
interest on the Debt Securities of any series shall have been
declared due and payable upon an Event of Default pursuant to
Section 5.1 of the Subordinated Indenture and such declaration
shall not have been rescinded and annulled as provided therein,
then the holders of all Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or
provision shall be made for such payment in money or money's
worth, before the holders of any of the Debt Securities issued
under the Subordinated Indenture are entitled to receive a
payment on account of the principal of (and premium, if any) or
any interest on the indebtedness evidenced by the Debt
Securities. (Section 13.1)
Events of Default
An Event of Default will occur under the applicable
Indenture with respect to Debt Securities of any series if (a)
ConAgra shall fail to pay when due any installment of interest on
any of the Debt Securities of such series and such default shall
continue for 30 days, (b) ConAgra shall fail to pay when due all
or any part of the principal of (and premium, if any, on) any of
the Debt Securities of such series (whether at maturity, upon
redemption, upon acceleration or otherwise), (c) ConAgra shall
fail to perform or observe any other term, covenant or agreement
contained in the Indenture (other than a covenant included in the
Indenture solely for the benefit of a series of Debt Securities
other than such series) for a period of 90 days after written
notice thereof, as provided in the Indenture, (d) certain events
of bankruptcy, insolvency or reorganization shall have occurred
or (e) ConAgra has not complied with any other covenant the
noncompliance with which would specifically constitute an Event
of Default with respect to Debt Securities of such series.
(Section 5.1)
Each Indenture provides that (a) if an Event of Default due
to the default in payment of principal of, or interest on, any
series of Debt Securities or due to the default in the
performance or breach of any other covenant or warranty of
ConAgra applicable to the Debt Securities of such series but not
applicable to all outstanding Debt Securities shall have occurred
and be continuing, either the Trustee or the holders of 25% in
principal amount of the Debt Securities of such series may then
declare the principal of all Debt Securities of such series and
interest accrued thereon to be due and payable immediately
(provided, with respect to Debt Securities issued under the
Subordinated Indenture, that the payment of principal and
interest on such Debt Securities of such series shall remain
subordinated to the extent provided in Article Thirteen of the
Subordinated Indenture), and (b) if an Event of Default due to
default in the performance of any other of the covenants or
agreements in the Indenture applicable to all outstanding Debt
Securities or due to certain events of bankruptcy, insolvency and
reorganization of ConAgra, shall have occurred and be continuing,
either the Trustee or the holders of 25% in principal amount of
all Debt Securities then outstanding (treated as one class) may
declare the principal of all Debt Securities and interest accrued
thereon to be due and payable immediately (provided, with respect
to Debt Securities issued under the Subordinated Indenture, that
the payment of principal and interest on such Debt Securities of
such series shall remain subordinated to the extent provided in
Article Thirteen of the Subordinated Indenture), but upon certain
conditions such declarations may be annulled and past defaults
may be waived (except a continuing default in payment of
principal of (or premium, if any) or interest on the Debt
Securities) by the holders of a majority in principal amount of
the Debt Securities of such series (or all series, as the case
may be) then outstanding. (Sections 5.1 and 5.10)
The holders of a majority in principal amount of the
outstanding Debt Securities of any series may direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on the Trustee, provided that such direction shall not
be in conflict with any rule of law or the applicable Indenture.
(Section 5.9) Before proceeding to exercise any right of power
under the applicable Indenture at the direction of such holders,
the Trustee shall be entitled to receive from such holders
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with any
such direction. (Section 5.6)
ConAgra will be required to furnish to the Trustee under
each Indenture annually a statement of certain officers of
ConAgra to the effect that, to the best of their knowledge,
ConAgra is not in default of the performance of the terms of the
Indenture or, if they have knowledge that ConAgra is in default,
specifying such default. (Section 3.5)
Each Indenture provides that no holder of Debt Securities
issued under the Indenture may institute any action against
ConAgra under the Indenture (except actions for payment of
overdue principal or interest) unless (a) the holder previously
shall have given to the Trustee written notice of default and
continuance thereof and unless the holders of not less than 25%
in principal amount of the Debt Securities of such affected
series issued under the Indenture and then outstanding shall have
requested the Trustee to institute such action and shall have
offered the Trustee reasonable indemnity, (b) the Trustee shall
not have instituted such action within 60 days of such request,
and (c) the Trustee shall not have received direction
inconsistent with such written request by the holders of a
majority in principal amount of the Debt Securities of such
affected series issued under the Indenture and then outstanding.
(Sections 5.6 and 5.9)
Each Indenture requires the Trustee to give to all holders
of outstanding Debt Securities of any series notice of any
default by ConAgra with respect to that series, unless such
default shall have been cured or waived; however, except in the
case of a default in the payment of principal of (and premium, if
any) or interest on any outstanding Debt Securities of that
series or in the payment of any sinking fund installment, the
Trustee is entitled to withhold such notice in the event that the
board of directors, the executive committee or a trust committee
of directors or certain officers of the Trustee in good faith
determines that withholding such notice is in the interest of the
holders of the outstanding Debt Securities of that series.
(Section 5.11)
Defeasance and Discharge
The following defeasance provision will apply to the Offered
Debt Securities unless the Prospectus Supplement provides
otherwise.
The Indenture provides that, unless the terms of any series
of Debt Securities provide otherwise, ConAgra will be discharged
from obligations in respect of the Indenture and the outstanding
Debt Securities of such series (including, with respect to the
Senior Indenture, its obligation to comply with the provisions
referred to under "Certain Covenants of ConAgra", if applicable,
but excluding under each Indenture certain other obligations,
such as the obligation to pay principal of (and premium, if any)
and interest on the Debt Securities of such series then
outstanding and obligations to register the transfer or exchange
of such outstanding Debt Securities and to replace stolen, lost
or mutilated certificates), upon the irrevocable deposit, in
trust, of cash or, in the case of Debt Securities payable only in
U.S. dollars, U.S. Government Obligations (as defined in the
Indenture) which through the payment of interest and principal
thereof in accordance with their terms will provide cash in an
amount sufficient to pay any installment of principal of (and
premium, if any) and interest on and mandatory sinking fund
payments in respect of such outstanding Debt Securities on the
stated maturity of such payments in accordance with the terms of
the Indenture and such outstanding Debt Securities provided that
ConAgra has received an opinion of counsel or officers'
certificate to the effect that such a discharge will not be
deemed, or result in, a taxable event with respect to holders of
the outstanding Debt Securities of such series and that certain
other conditions are met. In addition, with respect to the
Subordinated Indenture, in order to be discharged (i) no event or
condition shall exist that, pursuant to certain provisions
described under "Subordination" above, would prevent ConAgra from
making payments of principal of (and premium, if any) and
interest on the Debt Securities issued under the Subordinated
Indenture at the date of the irrevocable deposit referred to
above or at any time during the period ending on the 121st day
after such deposit date, and (ii) ConAgra delivers to the Trustee
under the Subordinated Indenture an opinion of counsel to the
effect that (a) the trust funds will not be subject to any rights
of holders of Senior Indebtedness, and (b) after the 121st day
following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally except that
if a court were to rule under any such law in any case or
proceeding that the trust refunds remained the property of
ConAgra, then the Trustee under the Subordinated Indenture and
the holders of the Debt Securities issued under the Subordinated
Indenture would be entitled to certain rights as secured
creditors in such trust funds. (Section 10.1)
Modification of the Indenture
Each Indenture provides that ConAgra and the Trustee may
enter into supplemental indentures without the consent of the
holders of Debt Securities to: (a) secure any Debt Securities,
(b) evidence the assumption by a successor corporation of the
obligations of ConAgra, (c) add covenants for the protection of
the holders of Debt Securities, (d) cure any ambiguity or correct
any inconsistency in the Indenture, (e) establish the form or
terms of Debt Securities of any series, and (f) evidence the
acceptance of appointment by a successor trustee. (Section 8.1)
Each Indenture also contains provisions permitting ConAgra
and the Trustee, with the consent of the holders of not less than
a majority in principal amount of Debt Securities of each series
then outstanding and affected, to add any provisions to, or
change in any manner or eliminate any of the provisions of, the
Indenture or modify in any manner the rights of the holders of
the Debt Securities of each series so affected, provided that
ConAgra and the Trustee may not, without the consent of the
holder of each outstanding Debt Security affected thereby, (a)
extend the stated maturity of the principal of any Debt Security,
or reduce the principal amount thereof or reduce the rate or
extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof or change the currency in
which the principal thereof (including any amount in respect of
original issue discount) or interest thereon is payable or reduce
the amount of any original issue discount security payable upon
acceleration or provable in bankruptcy or alter certain
provisions of the Indenture relating to Debt Securities not
denominated in U.S. dollars or impair the right to institute suit
for the enforcement of any payment on any Debt Security when due
or (b) reduce the aforesaid percentage in principal amount of
Debt Securities of any series the consent of the holders of which
is required for any such modification. (Section 8.2)
In addition, the Subordinated Indenture may not be amended
to alter the subordination of any of the outstanding Debt
Securities issued thereunder without the written consent of each
holder of Senior Indebtedness then outstanding that would be
adversely affected thereby. (Section 8.6 of the Subordinated
Indenture).
Consolidation, Merger, Conveyance or Transfer
ConAgra may, without the consent of the Trustee under the
applicable Indenture or the holders of Debt Securities,
consolidate or merge with, or convey, transfer or lease its
properties and assets substantially as an entirety to any other
corporation, provided that any successor corporation is organized
under the laws of the United States of America or any state
thereof and expressly assumes all obligations of ConAgra under
the Debt Securities and that certain other conditions are met,
and, thereafter, except in the case of a lease, ConAgra shall be
relieved of all obligations thereunder. (Article Nine)
Applicable Law
The Debt Securities and the Indenture will be governed by
and construed in accordance with the laws of the State of New
York. (Section 11.8)
Concerning the Trustee
The Chase Manhattan Bank (National Association) is the
Trustee under the Senior Indenture and is also the trustee under
a prior indenture between ConAgra and The Chase Manhattan Bank
(National Association). The First Trust National Association is
the Trustee under the Subordinated Indenture. First Bank System,
Inc. owns substantially all of the capital stock of such Trustee
and First Bank National Association. The Chase Manhattan Bank
(National Association) and First Bank National Association are
among a number of banks with which ConAgra and its subsidiaries
maintain ordinary banking relationships and with which ConAgra
and its subsidiaries maintain credit facilities.
PLAN OF DISTRIBUTION
Offered Securities may be sold (i) through agents, (ii)
through underwriters including, Smith Barney Shearson Inc., (iii)
through dealers or (iv) directly to purchasers (through a
specific bidding or auction process or otherwise).
Offers to purchase Offered Securities may be solicited by
agents designated by ConAgra from time to time. Any such agent
involved in the offer or sale of the Offered Securities will be
named, and any commissions payable by ConAgra to such agent will
be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be
acting on a best efforts basis for the period of its appointment.
Any such agent may be deemed to be an underwriter, as that term
is defined in the Securities Act of 1933, as amended (the "1933
Act") of the Offered Securities so offered and sold. Agents may
be entitled under agreements which may be entered into with
ConAgra to indemnification by ConAgra against certain
liabilities, including liabilities under the 1933 Act, and may be
customers of, engaged in transactions with or perform services
for ConAgra in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale
of Offered Securities, ConAgra will execute an underwriting
agreement with such underwriter or underwriters at the time an
agreement for such sale is reached, and the names of the specific
managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers, if any, will be set
forth in the Prospectus Supplement, which will be used by the
underwriters to make resales of Offered Securities. The
underwriters may be entitled, under the relevant underwriting
agreement, to indemnification by ConAgra against certain
liabilities, including liabilities under the 1933 Act and such
underwriters or their affiliates may be customers of, engage in
transaction with or perform service for, ConAgra in the ordinary
course of business. Only underwriters named in the Prospectus
Supplement are deemed to be underwriters in connection with the
Offered Securities.
If a dealer is utilized in the sale of Offered Securities,
ConAgra will sell such Offered Securities to the dealer, as
principal. The dealer may then resell such Offered Securities to
the public at varying prices to be determined by such dealer at
the time of resale. Dealers may be entitled, under agreements
which may be entered into with ConAgra, to indemnification by
ConAgra against certain liabilities, including liabilities under
the 1933 Act and such dealers or their affiliates may be
customers of, extend credit to or engage in transactions with or
perform services for ConAgra in the ordinary course of business.
The name of the dealer and the terms of the transactions will be
set forth in the Prospectus Supplement relating thereto.
Offers to purchase Offered Securities may be solicited
directly by ConAgra and sales thereof may be made by ConAgra
directly to institutional investors or others. The terms of any
such sales, including the terms of any bidding or auction
process, if utilized, will be described in the Prospectus
Supplement relating thereto.
Offered Securities may also be offered and sold, if so
indicated in the Prospectus Supplement, in connection with a
remarketing upon their purchase, in accordance with a redemption
or repayment pursuant to their terms, or otherwise, by one or
more firms ("remarketing firms"), acting as principals for their
own accounts or as agents for ConAgra. Any remarketing firm will
be identified and the terms of its agreement, if any, with
ConAgra and its compensation will be described in the Prospectus
Supplement. Remarketing firms may be deemed to be underwriters
in connection with the Debt Securities remarketed thereby.
Remarketing firms may be entitled under agreements which may be
entered into with ConAgra to indemnification by ConAgra against
certain liabilities, including liabilities under the 1933 Act,
and may be customers of, engage in transactions with or perform
services for ConAgra in the ordinary course of business.
If so indicated in the Prospectus Supplement, ConAgra will
authorize agents and underwriters to solicit offers by certain
institutions to purchase Debt Securities from ConAgra at the
public offering price set forth in the Prospectus Supplement
pursuant to Delayed Delivery Contracts ("Contracts") providing
for payment and delivery on the date stated in the Prospectus
Supplement. Such Contracts will be subject to only those
conditions set forth in the Prospectus Supplement. A commission
indicated in the Prospectus Supplement will be paid to
underwriters and agents soliciting purchases of Debt Securities
pursuant to Contracts accepted by ConAgra.
EXPERTS
The financial statements and related financial statement
schedules incorporated in this prospectus by reference from
ConAgra's annual report on Form 10-K for the year ended May 30,
1993 have been audited by Deloitte & Touche, independent
auditors, as stated in their reports, which are incorporated
herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as
experts in accounting and auditing.
Documents incorporated herein by reference in the future
will include financial statements, related schedules (if
required) and auditors' reports, which financial statements and
schedules will have been examined to the extent and for the
period set forth in such reports by the firm or firms rendering
such reports, and, to the extent so examined and consent to
incorporation by reference is given, will be incorporated herein
by reference in reliance upon such reports given upon the
authority of such firms as experts in accounting and auditing.
LEGAL MATTERS
The validity of the Offered Securities other than Preferred
Securities offered hereby has been passed upon for ConAgra by
McGrath, North, Mullin & Kratz, P.C., Omaha, Nebraska 68102.
The validity of the Preferred Securities offered hereby have
been passed upon for ConAgra and ConAgra Capital by Dickinson,
Mackaman, Tyler & Hagen, P.C., Des Moines, Iowa.
Certain legal matters with respect to the Offered Securities
have been passed upon for the underwriters by Davis Polk &
Wardwell, New York, New York. Tax matters described under
"Certain United States Federal Income Tax Consequences" in this
Prospectus relating to the Preferred Securities have been passed
upon by Davis Polk & Wardwell, New York, New York.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following sets forth estimated expenses to be incurred
by ConAgra in connection with the offering described in this
Registration Statement:
Item Amount
Registration Fee $155,173
Blue Sky Fees and Expenses $ 7,500
Printing Expenses $ 45,000
Listing Fees $ 86,300
Accounting Fees and Expenses $ 20,000
Trustee Fees $ 3,000
Legal Fees and Expenses $ 75,000
Rating Agency Fees $ 70,000
Miscellaneous Expenses $ 13,027
--------
TOTAL $475,000
Item 15. Indemnification of Directors and Officers.
Pursuant to Article V of the Certificate of Incorporation of
ConAgra, ConAgra shall, to the extent required, and may, to the
extent permitted, by Section 102 and Section 145 of the General
Corporation Law of the State of Delaware, as amended from time to
time, indemnify and reimburse all persons whom it may indemnify
and reimburse pursuant thereto. No director shall be liable to
ConAgra or its stockholders for monetary damages for breach of
fiduciary duty as a director with respect to acts or omissions
occurring on or after September 18, 1986. A director shall
continue to be liable for (i) any breach of a director's duty of
loyalty to ConAgra or its stockholders; (ii) acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) paying a dividend or approving a
stock repurchase which would violate Section 174 of the General
Corporation Law of the State of Delaware; or (iv) any transaction
from which the director derived an improper personal benefit.
The by-laws of ConAgra provide for indemnification of
ConAgra officers and directors against all expenses, liabilities
or losses reasonably incurred or suffered by them, including
liability arising under the Securities Act of 1933, to the extent
legally permissible under Section 145 of the General Corporation
Law of the State of Delaware where any such person was, is, or is
threatened to be made a party to or is involved in any action,
suit or proceeding whether civil, criminal, administrative or
investigative, by reason of the fact such person was serving
ConAgra in such capacity. Generally, under Delaware law,
indemnification will only be available where an officer or
director can establish that such person acted in good faith and
in a manner such person reasonably believed to be in or not
opposed to the best interests of ConAgra.
ConAgra also maintains a director and officer insurance
policy which insures the officers and directors of ConAgra and
its subsidiaries against damages, judgments, settlements and
costs incurred by reason of certain wrongful acts committed by
such persons in their capacities as officers and directors.
Item 16. List of Exhibits.
Exhibit 1.1 - Form of Underwriting Agreement incorporated by
reference to ConAgra's Registration Statement on
Form S-3 (33-55626).
Exhibit 1.2 - Form of U.S. Distribution Agreement incorporated
by reference to ConAgra's Registration Statement
on Form S-3 (33-55626).
Exhibit 1.3 - Underwriting Agreement with respect to the
Preferred Securities.
Exhibit 4.1 - Indenture, dated as of October 8, 1990, between
ConAgra and The Chase Manhattan Bank (National
Association), Trustee incorporated by reference to
ConAgra's Registration Statement on Form S-3 (33-
36967).
Exhibit 4.2 - Forms of Notes incorporated by reference to
ConAgra's Registration Statement on Form S-3 (33-
55626).
Exhibit 4.3 - Form of ConAgra Debentures.*
Exhibit 4.4 - Articles of Organization of ConAgra Capital and
Articles of Correction.
Exhibit 4.5 - Operating Agreement of ConAgra Capital.
Exhibit 4.6 - Documents Establishing the Preferred Securities.*
Exhibit 4.7 - Form of Indenture, dated as of March 10, 1994,
between ConAgra and First Trust National
Association, Trustee.
Exhibit 5.1 - Opinion of McGrath, North, Mullin & Kratz, P.C.
Exhibit 5.2 - Opinion of Dickinson, Mackaman, Tyler & Hagen,
P.C.
Exhibit 8 - Opinion of Davis Polk & Wardwell with respect to
certain tax matters.
Exhibit 10.1 - Form of Payment and Guarantee Agreement with
respect to the Preferred Securities.
Exhibit 10.2 - Form of Agreement as to Expenses and Liabilities
with respect to the Preferred Securities.
Exhibit 12 - Statement re: Computation of Ratio of Earnings to
Fixed Charges and Preferred Stock Dividends
incorporated by reference to Exhibit 12 of
ConAgra's Annual Report on Form 10-K for the
Fiscal Year ended May 30, 1993 and Exhibit A of
ConAgra's Quarterly Report on Form 10-Q for the
quarter ended November 28, 1993.
Exhibit 24.1 - Consent of Deloitte & Touche.
Exhibit 24.2 - Consent of McGrath, North, Mullin & Kratz, P.C.
(included in Exhibit 5.1).
Exhibit 24.3 - Consent of Davis Polk & Wardwell (included in
Exhibit 8).
Exhibit 24.4 - Consent of Dickinson, Mackaman, Tyler & Hagen,
P.C. (included in Exhibit 5.2)
Exhibit 25 - Powers of Attorney.
Exhibit 26.1 - Statement of Eligibility and Qualification of the
Trustee under the Trust Indenture Act.
Exhibit 26.2 - Statement of Eligibility and Qualification of the
Trustee under the Trust Indenture Act.
_______________
* to be filed by amendment
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement to include any material
information with respect to the plan of distribution
not previously disclosed in the registration statement
or any material change to such information in the
registration statement.
(b) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(c) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(d) That, for the purposes of determining any liability
under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration
statement shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(e) That, insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be
permitted to directors, officers or persons controlling
the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been informed that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed
in the Act and is therefore unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer, or
controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is
against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(f) That, for purposes of determining any liability under
the Securities Act of 1933, the information omitted
from the form of prospectus filed as a part of this
Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
of the Securities Act of 1933 shall be deemed to part
of this Registration Statement as of the time it was
declared effective.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant, ConAgra, Inc., a Delaware corporation, certifies
that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Omaha,
State of Nebraska, on the 11th day of March, 1994.
CONAGRA, INC.
/s/ Philip B. Fletcher
By:____________________________
Philip B. Fletcher
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933
this Registration Statement has been signed below by the
following persons in the capacities with ConAgra, Inc. indicated
on the 11th day of March, 1994.
SIGNATURE TITLE
/s/ Philip B. Fletcher
__________________________________ Chief Executive Officer
Philip B. Fletcher
/s/ Stephen L. Key
__________________________________ Executive Vice President
Stephen L. Key and Chief Financial Officer
/s/ Dwight J. Goslee
__________________________________ Vice President and
Controller
Dwight J. Goslee (Principal Accounting
Officer)
C. M. Harper* Director
Robert A. Krane* Director
Gerald Rauenhorst* Director
Carl E. Reichardt* Director
Ronald W. Roskens* Director
Walter Scott, Jr.* Director
William G. Stocks* Director
Frederick B. Wells* Director
Thomas R. Williams* Director
Clayton K. Yeutter* Director
*Philip B. Fletcher, by signing his name hereto, signs the
Registration Statement on behalf of each of the persons
indicated. A Power-of-Attorney authorizing Philip B. Fletcher to
sign this Registration Statement on behalf of each of the
indicated Directors of ConAgra, Inc. is filed herewith as Exhibit
24.
/s/ Philip B. Fletcher
By:________________________________
Philip B. Fletcher
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933,
ConAgra Capital, L.C. 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 registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized in
the city of Omaha and state of Nebraska, on the 11th day of
March, 1994.
ConAgra Capital L.C.
CP Nebraska, Inc.,
as Managing Member
/s/ Stephen L. Key
By:____________________________
Stephen L. Key
President and Chief
Executive Officer
HW Nebraska, Inc.,
as Managing Member
/s/ Stephen L. Key
By:____________________________
Stephen L. Key
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities with ConAgra Capital, L.C. and the
Managing Members indicated and on the 11th day of March, 1994.
SIGNATURE TITLE
/s/ Stephen L. Key
__________________________________ President and Chief Executive
Stephen L. Key Officer of CP Nebraska, Inc.
(Principal Executive Officer)
/s/ James P. O'Donnell
__________________________________ Vice President, Finance/
James P. O'Donnell Treasurer and Chief Financial
Officer of CP Nebraska, Inc.
(Principal Financial and
Accounting Officer)
/s/ Stephen L. Key
__________________________________ President and Chief Executive
Stephen L. Key Officer of HW Nebraska, Inc.
(Principal Executive Officer)
/s/ James P. O'Donnell
__________________________________ Vice President, Finance/
James P. O'Donnell Treasurer and Chief Financial
Officer of HW Nebraska, Inc.
(Principal Financial and
Accounting Officer)
INDEX OF EXHIBITS
Number Description Page
No.
Exhibit 1.1 - Form of Underwriting Agreement
incorporated by reference to
ConAgra's Registration Statement on
Form S-3 (33-55626).
Exhibit 1.2 - Form of U.S. Distribution Agreement
incorporated by reference to
ConAgra's Registration Statement on
Form S-3 (33-55626).
Exhibit 1.3 - Form of Underwriting Agreement with
respect to the Preferred Securities .....
Exhibit 4.1 - Indenture, dated as of October 8,
1990, between ConAgra and The Chase
Manhattan Bank (National
Association), Trustee incorporated
by reference to ConAgra's
Registration Statement on Form S-3
(33-36967).
Exhibit 4.2 - Forms of Notes incorporated by
reference to ConAgra's Registration
Statement on Form S-3 (33-55626).
Exhibit 4.3 - Form of ConAgra Debentures ............. *
Exhibit 4.4 - Articles of Organization of ConAgra
Capital and Articles of Correction......
Exhibit 4.5 - Operating Agreement of ConAgra
Capital ................................
Exhibit 4.6 - Documents Establishing the
Preferred
Securities ............................. *
Exhibit 4.7 - Form of Indenture, dated as of
March 10, 1994, between ConAgra and
First
Trust National Association, Trustee ....
Exhibit 5.1 - Opinion of McGrath, North, Mullin &
Kratz, P.C..............................
Exhibit 5.2 - Opinion of Dickinson, Mackaman, Tyler &
Hagen, P.C...............................
Exhibit 8 - Opinion of Davis Polk & Wardwell with
respect to certain tax matters .........
Exhibit 10.1 - Form of Payment and Guarantee Agreement
with respect to the Preferred Securities...
Exhibit 10.2 - Form of Agreement as to Expenses and
Liabilities with respect to the
Preferred Securities ..................
Exhibit 12 - Statement re: Computation of Ratio
of Earnings to Fixed Charges and
Preferred Stock Dividends
incorporated by reference to
Exhibit 12 of ConAgra's Annual
Report on Form 10-K for the Fiscal
Year ended May 30, 1993 and Exhibit
A of ConAgra's Quarterly Report on
Form 10-Q for the quarter ended
November 28, 1993.
Exhibit 23.1 - Consent of Deloitte & Touche............
Exhibit 23.2 - Consent of McGrath, North, Mullin &
Kratz, P.C. (included in
Exhibit 5.1).
Exhibit 23.3 - Consent of Davis Polk & Wardwell
(included in Exhibit 8).
Exhibit 23.4 - Consent of Dickinson, Mackaman, Tyler &
Hagen, P.C. (included in Exhibit 5.2)...
Exhibit 24 - Powers of Attorney......................
Exhibit 26.1 - Statement of Eligibility and
Qualification of the Trustee under
the Trust Indenture Act ................
Exhibit 26.2 - Statement of Eligibility and
Qualification of the Trustee under
the Trust Indenture Act ................
____________________
*to be filed by amendment
Exhibit 1.3
UNDERWRITING AGREEMENT
________ __, 19__
ConAgra Capital, L.C.
ConAgra, Inc.
c/o ConAgra, Inc.
ConAgra Center
One Central Park Plaza
Omaha, Nebraska 68102
Dear Sirs:
We (the "Underwriters") understand that ConAgra
Capital, L.C., an Iowa limited liability company (the "Company"),
proposes to issue and sell [indicate aggregate amount of Firm
Preferred Securities] Series Preferred Membership Interests of
[Full title of Securities, including liquidation preference] (the
"Firm Offered Securities"), guaranteed by ConAgra, Inc.
("ConAgra") to the extent set forth in the Prospectus Supplement
(as defined below) and Prospectus (as defined below). The
Company also proposes to issue and sell to the several
Underwriters not more than an additional [indicate aggregate
amount of Additional Preferred Securities] Series Preferred
Membership Interests of [Full title of Securities, including
liquidation preference] (the "Additional Offered Securities" and,
together with the "Firm Offered Securities", the "Offered
Securities"), guaranteed by ConAgra as aforesaid, to the extent
Smith Barney Shearson Inc., as manager (the "Manager") of the
offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such Additional Shares
granted to the Underwriters in Article I contained in the
document entitled ConAgra Capital Underwriting Agreement Standard
Provisions (Preferred Securities) dated ________, 1994, which was
filed as an exhibit to the Company's and ConAgra's Registration
Statement (33-_____) (the "Standard Provisions").
Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to
sell, ConAgra agrees to guarantee as aforesaid and the
Underwriters agree to purchase, severally and not jointly, the
amount of such Firm Offered Securities set forth below opposite
their names at a purchase price of $_____ per Offered Security
(the "Purchase Price") plus accrued distributions from [Date of
Securities], to the date of payment and delivery:
Name Amount
Smith Barney Shearson Inc.
Total . . . . . . . . .
===========
Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to
sell to the Underwriters and ConAgra agrees to guarantee as
aforesaid the Additional Offered Securities, and the Underwriters
shall have a one-time right to purchase, severally and not
jointly, up to [aggregate amount of Additional Offered
Securities] at the Purchase Price plus accrued distributions, if
any. If any Additional Offered Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase
the amount of Additional Offered Securities (subject to such
adjustments to eliminate fractional securities as the Manager may
determine) that bears the same proportion to the total amount of
Additional Offered Securities to be purchased as the amount of
Firm Offered Securities set forth above opposite the name of such
Underwriter bears to the total amount of Firm Offered Securities.
The Underwriters will pay for such Firm Offered
Securities upon delivery thereof at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York 10017 at
A.M. (New York City time) on [Closing Date] or at such other
time, not later than ________ __, 19__ as shall be designated by
the Company and the Manager. The time and date of such payment
are hereinafter referred to as the Closing Date.
The Underwriters will pay for any such Additional
Offered Securities upon delivery thereof at the offices of Davis
Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017
at A.M. (New York City time) on such date as shall be
designated by the Manager (which may be the same as the Closing
Date but shall in no event be earlier than the Closing Date nor
later than the record date for the first distribution on the Firm
Offered Securities). The time and date of such payment are
hereinafter referred to as the Option Closing Date. The notice
of the determination to exercise the option to purchase
Additional Offered Securities and of the Option Closing Date may
be given at any time after the date of this Agreement, provided
________
that the date of such notice shall be no later than 12:00 noon,
New York time, on the business day prior the last date on which
the Option Closing Date may occur.
The Offered Securities shall have the terms set forth
in the Company's and ConAgra's Prospectus Supplement dated [Date
of Prospectus Supplement] relating to the Offered Securities and
the Prospectus dated _______ ___, 1994 particularly as follows:
Maturity: ________ __, 19__
Distribution Rate: ___% per annum
Distribution Payment
Dates: ________ __, and ______ __,
commencing ______ __, 19__
[(Distributions accrue from
________ __, 19__)]
All the provisions contained in the Standard Provisions
(Preferred Securities) a copy of which we have previously
received, are herein incorporated by reference in their entirety
and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein,
except that the term "Manager" as used therein shall, for
purposes of this Agreement, mean Smith Barney Shearson Inc.
[The following terms and conditions supplement the
Standard Provisions, and to the extent inconsistent therewith,
replace the terms and conditions of the Standard Provisions:]
Please confirm your agreement by having an authorized
officer sign a copy of this Agreement in the space set forth
below. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Very truly yours,
SMITH BARNEY SHEARSON INC.
On behalf of itself and the other
Underwriters named herein
By: SMITH BARNEY SHEARSON INC.
By:
Name:
Title:
Accepted as of the date
written above:
CONAGRA CAPITAL, L.C.
By: CP Nebraska, Inc., a Nebraska
corporation, as Managing Member
By:
Name:
Title:
By: HW Nebraska, Inc., a Nebraska
corporation, as Managing Member
By:
Name:
Title:
CONAGRA, INC.
By:
Name:
Title:
ConAgra Capital, L.C. Underwriting Agreement
Standard Provisions (Preferred Securities)
March ___, 1994
From time to time, ConAgra Capital, L.C., an Iowa
limited liability company (the "Company"), may enter into one or
more underwriting agreements that provide for the sale of
designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred
to as this Agreement. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein
defined.
I.
The Company proposes to issue from time to time Series
Preferred Membership Interests (the "Securities") in one or more
series pursuant to written action or actions of HW Nebraska,
Inc., a Nebraska corporation, and CP Nebraska, Inc., a Nebraska
corporation, as managers (the "Managing Members") of the Company,
taken under the Limited Liability Company Operating Agreement
(the "Operating Agreement") dated as of March ___, 1994, among
the Managing Members and the other members of the Company
(collectively, the "Members"). The Securities will be guaranteed
by ConAgra, Inc., a Delaware corporation ("ConAgra"), to the
extent set forth in a Payment and Guarantee Agreement (the
"Guarantee") dated as of ________ ___, 1994. The proceeds from
the sale of the Securities will be used by the Company to
purchase debentures (the "Debentures") issued by ConAgra pursuant
to the Subordinated Indenture (the "Indenture") dated as of March
10, 1994 between ConAgra and First Trust National Association, as
Trustee (the "Trustee"). The Securities may, in certain
circumstances, be exchangeable for Debentures. The Securities
will have varying designations, voting rights, distribution rates
and times of payment of distributions, liquidation preferences,
selling prices, redemption terms and exchange terms. The
Debentures will have varying designations, maturities, principal
amounts, rates and times of payment of interest, selling prices
and redemption terms.
The Company and ConAgra have filed with the Securities
and Exchange Commission (the "Commission") a registration
statement including a prospectus relating to the Securities and
have filed with or will promptly hereafter file with the
Commission a prospectus supplement specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act
of 1933. The term Registration Statement means the registration
statement, including the exhibits thereto, as amended to the date
of the Underwriting Agreement. The term Basic Prospectus means
the prospectus included in the Registration Statement. The term
Prospectus means the Basic Prospectus together with the
prospectus supplement or supplements specifically relating to the
Offered Securities, as filed with or promptly hereafter filed
with the Commission pursuant to Rule 424. The term preliminary
prospectus means a preliminary prospectus supplement specifically
relating to the Offered Securities together with the Basic
Prospectus. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "preliminary prospectus"
shall include in each case the material, if any, incorporated by
reference therein.
The term Firm Underwriters' Securities means the Firm
Offered Securities to be purchased by the Underwriters herein.
The term Additional Underwriters' Securities means the Additional
Offered Securities, if any, that the Underwriters will have the
right to purchase, severally and not jointly, solely for the
purpose of covering over-allotments made in connection with the
offering of the Firm Underwriters' Securities. The Firm
Underwriters' Securities and the Additional Underwriters'
Securities are referred to herein as the Underwriters'
Securities. The term Contract Securities means the Offered
Securities, if any, to be purchased pursuant to the delayed
delivery contracts referred to below.
II.
If the Prospectus provides for sales of Offered
Securities pursuant to delayed delivery contracts, the Company
hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions
set forth in the Prospectus pursuant to delayed delivery
contracts substantially in the form of Schedule I attached hereto
("Delayed Delivery Contracts") but with such changes therein as
the Company may authorize or approve. Delayed Delivery Contracts
are to be with institutional investors approved by the Company
and of the types set forth in the Prospectus. On the Closing
Date (as hereinafter defined), the Company will pay the Manager
as compensation, for the accounts of the Underwriters, the fee
set forth in the Underwriting Agreement in respect of the amount
of Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of
Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the Contract Securities
shall be deducted from the Offered Securities to be purchased by
the several Underwriters and the aggregate amount of Offered
Securities to be purchased by each Underwriter shall be reduced
pro rata in proportion to the amount of Offered Securities set
forth opposite each Underwriter's name in the Underwriting
Agreement, except to the extent that the Manager determines that
such reduction shall be other than pro rata and so advises the
Company.
III.
The Company is advised by the Manager that the
Underwriters propose to make a public offering of their
respective portions of the Underwriters' Securities as soon after
this Agreement is entered into as in the Manager's judgment is
advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made
by certified or official bank check or checks payable to the
order of the Company in New York Clearing House funds at the time
and place set forth in the Underwriting Agreement, upon delivery
to the Manager for the respective accounts of the several
Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Manager shall request in
writing not less than two full business days prior to the date of
delivery. The time and date of such payment and delivery with
respect to the Firm Underwriters' Securities are herein referred
to as the Closing Date. The time and date of such payment and
delivery with respect to the Additional Underwriters' Securities
are herein referred to as the Option Closing Date.
V.
The several obligations of the Underwriters hereunder
are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or
threatened by the Commission; there shall have been no
material adverse change, or any development involving a
prospective material adverse change, in the condition of
ConAgra and its subsidiaries, considered as one enterprise,
from that set forth in the Registration Statement and the
Prospectus; and there shall not have been any announcement
by any "nationally recognized statistical rating
organization", as defined for purposes of Rule 436(g) under
the Securities Act of 1933, that (i) it is downgrading its
rating assigned to any debt securities of ConAgra or any
securities of the Company or (ii) it is reviewing its rating
assigned to any debt securities of ConAgra or any securities
of the Company with a view to possible downgrading, or with
negative implications, or direction not determined; and the
Manager shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an
executive officer of ConAgra, to the foregoing effect. The
officer making such certificate may rely upon the best of
his knowledge as to proceedings pending or threatened.
(b) The Manager shall have received on the Closing
Date an opinion of counsel for ConAgra and the Company
identified in Exhibit A hereto, dated the Closing Date, to
the effect set forth in Exhibit A.
(c) The Manager shall have received on the Closing
Date an opinion of Iowa counsel for the Company identified
in Exhibit B hereto, dated the Closing Date, to the effect
set forth in Exhibit B.
(d) The Manager shall have received on the Closing
Date an opinion of counsel for the Underwriters identified
in Exhibit C hereto, dated the Closing Date, to the effect
set forth in Exhibit C.
(e) The Manager shall have received on the date of the
Underwriting Agreement and on the Closing Date, letters
dated the date of the Underwriting Agreement and the Closing
Date in form and substance satisfactory to the Manager, from
ConAgra's independent public accountants, containing
statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained or incorporated by reference in the
Registration Statement and the Prospectus.
The several obligations of the Underwriters to purchase
Additional Underwriters' Securities hereunder are subject to the
delivery to you on the Option Closing Date of such documents as
you may reasonably request with respect to the good standing of
ConAgra and the Company, the due authorization and issuance of
the Additional Underwriters' Securities and Debentures relating
thereto and other matters related to the issuance of the
Additional Underwriters' Securities.
VI.
In further consideration of the agreements of the
Underwriters contained in this Agreement, ConAgra and the Company
covenant as follows:
(a) To furnish the Manager, without charge, three
copies of the Registration Statement including exhibits and
materials, if any, incorporated by reference therein and,
during the period mentioned in paragraph (c) below, as many
copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto
as the Manager may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this
Agreement shall include all documents filed by ConAgra or
the Company with the Commission subsequent to the date of
the Basic Prospectus, pursuant to the Securities Exchange
Act of 1934, which are deemed to be incorporated by
reference in the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered
Securities, to furnish the Manager a copy of each such
proposed amendment or supplement.
(c) If, during such period after the first date of
the public offering of the Offered Securities as in the
opinion of counsel for the Underwriters the Prospectus is
required by law to be delivered, any event shall occur or
condition shall exist as a result of which it is necessary
to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus
to comply with law, forthwith to prepare and furnish, at its
own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will
comply with law.
(d) To arrange in cooperation with you to qualify the
Offered Securities for offer and sale under the securities
or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection with such
qualification.
(e) To make generally available to the Company's
security holders as soon as practicable an earning statement
of ConAgra, which may be unaudited, which shall satisfy the
provisions of Section 11(a) of the Securities Act of 1933
and the applicable rules and regulations thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the
date 90 days after the later of the Closing Date and the
Option Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any Offered Securities, any preferred
stock or any other securities (including any backup
undertakings) of ConAgra or any preferred interests or any
other securities of the Company, in each case that are
substantially similar to the Offered Securities, or any
securities convertible into or exchangeable for the Offered
Securities or such substantially similar securities of
either ConAgra or the Guarantor, without the prior written
consent of the Manager.
(g) To use its best efforts to accomplish the listing,
subject to notice of listing, of the Offered Securities on
the New York Stock Exchange.
VII.
Each of ConAgra and the Company represents and warrants
to each Underwriter that (i) each document, if any, filed or to
be filed pursuant to the Securities Exchange Act of 1934 and
incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with such Act and
the rules and regulations thereunder, (ii) each part of the
registration statement (including the documents incorporated by
reference therein), filed with the Commission pursuant to the
Securities Act of 1933 relating to the Offered Securities, when
such part became effective, did not contain any untrue statement
of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (iii) each preliminary prospectus, if any, filed
pursuant to Rule 424 under the Securities Act of 1933 complied
when so filed in all material respects with such Act and the
applicable rules and regulations thereunder, (iv) the
Registration Statement and the Prospectus comply and, as amended
or supplemented, if applicable, will comply in all material
respects with the Securities Act of 1933 and the applicable rules
and regulations thereunder and (v) the Registration Statement and
the Prospectus do not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; except that these
representations and warranties do not apply to (a) that part of
the Registration Statement that constitutes the Statements of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of 1939 of First Trust National Association, as
Trustee under the Indenture and of The Chase Manhattan Bank
(National Association), as Trustee under the indenture dated as
of October 8, 1990, or (b) statements or omissions in the
Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company in
writing by any Underwriter expressly for use therein.
Each of Conagra and the Company jointly and severally
agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls such Underwriter within the meaning
of either Section 15 of the Securities Act of 1933 or Section 20
of the Securities Exchange Act of 1934, from and against any and
all losses, claims, damages and liabilities (including the
reasonable fees and expenses of counsel in connection with any
governmental or regulatory investigation or proceeding) caused by
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (if used within the period set forth
in paragraph (c) of Article VI hereof and as amended or
supplemented if ConAgra or the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by (i) any such untrue statement or
omission or alleged untrue statement or omission based upon
information furnished to ConAgra or the Company in writing by any
Underwriter expressly for use therein or (ii) the fact that an
Underwriter, as principal, sold Offered Securities to a person,
or Offered Securities were sold to a person solicited by an
Underwriter, to whom there was not sent or given a copy of the
Prospectus as amended or supplemented to the date of such sale
(excluding documents incorporated by reference) at or prior to
the confirmation of such sale and the untrue statement or alleged
untrue statement or omission or alleged omission of a material
fact contained in the Prospectus was corrected in the Prospectus
as so amended or supplemented, provided that ConAgra or the
Company has delivered the Prospectus as so amended or
supplemented to the several Underwriters in requisite quantity on
a timely basis to permit such delivery or sending.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless ConAgra, its directors, its officers
who sign the Registration Statement, the Company, the persons who
sign the Registration Statement on the Company's behalf and each
person, if any, who controls ConAgra or the Company to the same
extent as the foregoing indemnity from ConAgra and the Company to
each Underwriter, but only with reference to (i) information
relating to such Underwriter furnished to ConAgra or the Company
in writing by such Underwriter expressly for use in the
Registration Statement, any preliminary prospectus or the
Prospectus and (ii) the omission described in (ii) of the
immediately preceding paragraph.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such person (the "indemnified
party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated
in writing by Smith Barney Shearson Inc. in the case of parties
indemnified pursuant to the second preceding paragraph and by the
Company in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such
settlement includes an unconditional release by such settling
plaintiff of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in this Article VII
under the second or third paragraphs hereof is unavailable in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by ConAgra and the Company on the one hand and the
Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of ConAgra and
the Company on the one hand and of the Underwriters on the other
in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by ConAgra and the Company on the one hand and the
Underwriters on the other in connection with the offering of the
Offered Securities shall be deemed to be in the same proportion
as the net proceeds from the offering of such Offered Securities
(before deducting expenses) received by the Company bears to the
total underwriting discounts and commissions received by the
Underwriters in respect thereof, in each case as set forth in the
table on the cover of the Prospectus. The relative fault of
ConAgra and the Company on the one hand and of the Underwriters
on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by ConAgra or the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
ConAgra, the Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
Article VII were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Article VII, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act of
1933) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Article
VII are several, in proportion to the respective amounts of
Offered Securities purchased by each of such Underwriters, and
not joint. The remedies provided for in this Article VII are not
exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in
equity.
The indemnity and contribution agreements contained in
this Article VII and the representations and warranties of
ConAgra and the Company in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of ConAgra, its
directors or officers, the Company, the persons who sign the
Registration Statement on the Company's behalf or any person
controlling ConAgra or the Company and (iii) acceptance of and
payment for any of the Offered Securities.
VIII.
This Agreement shall be subject to termination in the
absolute discretion of the Manager, by notice given to the
Company, if prior to the Closing Date (i) trading in securities
generally on the New York Stock Exchange, the American Stock
Exchange or The Nasdaq national market shall have been suspended
or materially limited, (ii) a general moratorium on commercial
banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have
occurred any material outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the
judgment of the Manager, impracticable to market the Offered
Securities or to enforce contracts for the sale of the Offered
Securities.
IX.
If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Underwriters'
Securities that it or they have agreed to purchase on such date,
and the aggregate amount of Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
amount of the Underwriters' Securities to be purchased on such
date, the other Underwriters shall be obligated severally in the
proportions that the amount of Offered Securities set forth
opposite their respect names in the Underwriting Agreement bears
to the aggregate amount of Offered Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the
Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Underwriters'
Securities that any Underwriter has agreed to purchase pursuant
to the Underwriting Agreement be increased pursuant to this
Article IX by an amount in excess of one-ninth of such amount of
Underwriters' Securities without the written consent of such
Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Underwriters'
Securities and the aggregate amount of Underwriters' Securities
with respect to which such default occurs is more than one-tenth
of the aggregate amount of Underwriters' Securities to be
purchased on such date, and arrangements satisfactory to you and
the Company for the purchase of such Underwriters' Securities are
not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date but in
no event for longer then seven days, in order that the required
changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the
Underwriters or any of them, because of any failure or refusal on
the part of ConAgra or the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any
reason ConAgra or the Company shall be unable to perform its
obligations under this Agreement, ConAgra or the Company will
reimburse the Underwriters or such Underwriters as have so
terminated this Agreement, with respect to themselves, severally,
for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Offered Securities.
In all dealings hereunder, the Manager shall act on
behalf of each of the Underwriters, and the parties hereto shall
be entitled to act and rely on any statement, request, notice or
agreement on behalf of any Underwriter made or given by the
Manager.
This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
Schedule I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs:
The undersigned hereby agrees to purchase from ConAgra
Capital, L.C., an Iowa limited liability company (the "Company"),
and the Company agrees to sell to the undersigned and ConAgra,
Inc. ("ConAgra") agrees to guarantee to the extent set forth in
the Company's and ConAgra's Prospectus dated ____________, 1994
(the "Prospectus") and Prospectus Supplement dated
_______________, 19__ (the "Prospectus Supplement") the Company's
securities described in Schedule A annexed hereto (the
"Securities"), offered by the Prospectus and Prospectus
Supplement, receipt of copies of which are hereby acknowledged,
at a purchase price stated in Schedule A and on the further terms
and conditions set forth in this Agreement. The undersigned does
not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company
Securities in the amount on the delivery dates set forth in
Schedule A. Each such date on which Securities are to be
purchased hereunder is hereinafter referred to as a "Delivery
Date."
Payment for the Securities which the undersigned has
agreed to purchase on each Delivery Date shall be made to the
Company or its order by certified or official bank check in New
York Clearing House funds at the office of Davis Polk & Wardwell,
450 Lexington Avenue, New York, N.Y., at 10:00 A.M. (New York
time) on the Delivery Date, upon delivery to the undersigned of
the Securities to be purchased by the undersigned on the Delivery
Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days
prior to the Delivery Date.
The obligation of the undersigned to take delivery of
and make payment for the Securities on the Delivery Date shall be
subject to the conditions that (1) the purchase of Securities to
be made by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and
delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to
above of, such part of the Securities as is to be sold to them.
Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned
as its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to
the Underwriters in connection therewith.
Failure to take delivery of and make payment for
Securities by any purchaser under any other Delayed Delivery
Contract shall not relieve the undersigned of its obligations
under this agreement.
This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors,
but will not be assignable by either party hereto without the
written consent of the other.
If this Agreement is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned
at its address set forth below. This will become a binding
agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or
delivered.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
Yours very truly,
___________________________
(Purchaser)
By ________________________
___________________________
(Title)
___________________________
___________________________
(Address)
Accepted:
CONAGRA CAPITAL, L.C.
By: CP Nebraska, Inc., a Nebraska
corporation, as Managing Member
By:
Name:
Title:
By: HW Nebraska, Inc., a Nebraska
corporation, as Managing Member
By:
Name:
Title:
CONAGRA, INC.
By:
Name:
Title:
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the
representative of the Purchaser with whom details of delivery on
the Delivery Date may be discussed is as follows: (Please
print.)
Telephone No.
Name (Including Area Code) Department
________________ _______________ _________________
SCHEDULE A
Securities:
Amounts to be Purchased:
Purchase Price:
Delivery Dates:
Exhibit A
Opinion of McGrath, North, Mullin
& Kratz, P.C., counsel to ConAgra and the Company
The opinion of McGrath, North, Mullin & Kratz, P.C.,
counsel to ConAgra and the Company, to be delivered pursuant to
Article V, paragraph (b) of the document entitled ConAgra
Capital, L.C. Underwriting Agreement Standard Provisions
(Preferred Securities) shall be to the effect that:
(i) ConAgra has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Delaware and is duly qualified to transact
business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership or
leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on ConAgra
and its subsidiaries, considered as one enterprise,
(ii) each of HW Nebraska, Inc., CP Nebraska, Inc.,
ConAgra Poultry Company and Hunt-Wesson, Inc. has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and
is in good standing in each jurisdiction which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on ConAgra and its
subsidiaries, considered as one enterprise,
(iii) the Indenture has been duly authorized, executed
and delivered by ConAgra and is a valid and binding
agreement of ConAgra and has been duly qualified under the
Trust Indenture Act of 1939,
(iv) the Debentures have been duly authorized and, when
executed and authenticated in accordance with the Indenture
and delivered to and paid for by the Company, will be valid
and binding obligations of ConAgra and will be entitled to
the benefits of the Indenture in accordance with their
respective terms,
(v) the Underwriting Agreement has been duly
authorized, executed and delivered by ConAgra,
(vi) the Operating Agreement has been duly authorized
by HW Nebraska, Inc. and CP Nebraska, Inc.,
(vii) the Company is not an "investment company" or an
entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended,
(viii) the Debentures and the Guarantee conform as to
legal matters to the description thereof contained in the
Prospectus, as then amended or supplemented, if applicable,
under the captions "Description of the Debentures", "Certain
Terms of the Series __ Debentures" and "Description of the
Guarantee", as the case may be,
(ix) the Registration Statement, and any amendments
thereto, is effective under the Securities Act of 1933, and
to the best of such counsel's knowledge, no proceedings for
a stop order are pending or threatened by the Securities and
Exchange Commission,
(x) the execution, delivery and performance of the
Underwriting Agreement, the Debentures, the Indenture, the
Operating Agreement, the Guarantee and the Agreement as to
Expenses and Liabilities dated as of March __, 1994 between
ConAgra and the Company (the "Expense Agreement") will not
contravene any provision of applicable law or the
certificate of incorporation or by-laws of ConAgra or, to
the knowledge of such counsel, any agreement or other
instrument binding upon ConAgra, and no consent, approval or
authorization of any governmental body or agency is required
for the performance by ConAgra of its obligations under the
Underwriting Agreement, the Debentures, the Indenture, the
Guarantee or the Expense Agreement except such as may be
required under the Securities Act of 1933, Securities
Exchange Act of 1934 or the Trust Indenture Act of 1939,
which have been obtained, and such as may be required by the
securities or Blue Sky laws of the various states in
connection with the purchase and distribution of the Offered
Securities by the Underwriters,
(xi) the statements in the Prospectus under
"Description of the Guarantee", "Description of the
Debentures", "Certain Terms of the Series __ Debentures",
"Plan of Distribution" and "Underwriting", insofar as such
statements constitute summaries of the legal matters or
documents referred to therein, fairly present the
information called for with respect to such legal matters
and documents,
(xii) after due inquiry, such counsel does not know of
any legal or governmental proceeding pending or threatened
to which ConAgra or any of its subsidiaries is a party or to
which any of the properties of ConAgra or any of its
subsidiaries is subject that is required to be described in
the Registration Statement or the Prospectus and is not so
described or of any contract or other document that is
required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described or filed as
required; and
(xiii) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Securities Exchange
Act of 1934 and incorporated by reference in the
Registration Statement and Prospects (except for financial
statements and schedules and other financial data included
therein or incorporated therein by reference as to which
such counsel need not express any opinion) complied when so
filed as to form in all material respects with such Act and
the rules and regulations thereunder, (2) does not believe
that (except for the financial statements and schedules and
other financial data contained therein or incorporated
therein by reference, as to which such counsel need not
express any belief) any part of the Registration Statement
(including the documents incorporated by reference therein)
filed with the Commission pursuant to the Securities Act of
1933 relating to the Offered Securities, when such part
became effective or as of the date of the Underwriting
Agreement, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (3) is of the opinion the Registration Statement
and Prospectus, as amended or supplemented, if applicable
(except for financial statements and schedules and other
financial data included therein or incorporated therein by
reference as to which such counsel need not express any
opinion), comply as to form in all material respects with
the Securities Act of 1933 and the rules and regulations
thereunder and (4) does not believe that (except for the
financial statements and schedules and other financial data
contained therein or incorporated therein by reference as to
which such counsel need not express any belief) the
Prospectus, as amended or supplemented, if applicable,
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, provided that such
counsel may state that their opinion and belief are based
upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments
and supplements thereto (including the documents
incorporated by reference therein) and review and
discussions of the contents thereof, but are without
independent check or verification except as specified..
Exhibit B
Opinion of Dickinson, Mackaman, Tyler
& Hagen, P.C., Iowa counsel to the Company
The opinion of Dickinson, Mackaman, Tyler & Hagen,
P.C., Iowa counsel to the Company, to be delivered pursuant to
Article V, paragraph (c) of the document entitled ConAgra
Capital, L.C. Underwriting Agreement Standard Provisions
(Preferred Securities) shall be to the effect that:
(i) The Company has been duly organized and is validly
existing as a limited liability company in good standing
under the laws of the State of Iowa,
(ii) assuming the due authorization of the Operating
Agreement by the Managing Members, the Operating Agreement
has been duly executed and delivered and is a valid and
binding agreement of the Members (as defined in the
Operating Agreement),
(iii) the Offered Securities have been duly authorized
and, when issued and delivered in accordance with the terms
of the Underwriting Agreement, will represent valid, fully
paid and nonassessable limited membership interests in the
Company, as to which the holders thereof (the "Preferred
Members"), in their capacity as Preferred Members of the
Company, will have no liability solely by reason of being
Preferred Members in excess of their share of the Company's
assets and undistributed profits, and the issuance of such
Offered Securities is not subject to any preemptive or
similar rights,
(iv) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company,
(v) the Offered Securities conform as to legal
matters to the description thereof contained in the
Prospectus, as then amended or supplemented, if applicable,
under the caption "Description of Preferred Securities" and
"Certain Terms of the Series __ Preferred Securities",
(vi) the execution, delivery and performance of the
Underwriting Agreement, the Operating Agreement and the
Agreement as to Expenses and Liabilities dated as of March
__, 1994 between ConAgra and the Company (the "Expense
Agreement") will not contravene any provision of applicable
law or the articles of organization of the Company or, to
the knowledge of such counsel, any agreement or other
instrument binding upon the Company, and no consent,
approval or authorization of any governmental body or agency
is required for the performance by the Company of its
obligations under the Underwriting Agreement, the Offered
Securities and the Operating Agreement, except such as may
be required under the Securities Act of 1933, Securities
Exchange Act of 1934 or the Trust Indenture Act of 1939, and
such as may be required by the securities or Blue Sky laws
of the various states in connection with the purchase and
distribution of the Offered Securities by the Underwriters,
and
(vii) the statements in the Prospectus under
"Description of Preferred Securities" and "Certain Terms of
the Series __ Preferred Securities", insofar as such
statements constitute summaries of the legal matters or
documents referred to therein, fairly present the
information called for with respect to such legal matters
and documents.
Exhibit C
Opinion of Davis Polk & Wardwell,
Counsel for the Underwriters
The opinion of Davis Polk & Wardwell, counsel for the
Underwriters, to be delivered pursuant to Article V, paragraph
(d) of the document entitled ConAgra Capital, L.C. Underwriting
Agreement Standard Provisions (Preferred Securities) shall be to
the effect that:
(i) the Indenture has been duly authorized, executed
and delivered by ConAgra and is a valid and binding
agreement of ConAgra and has been duly qualified under the
Trust Indenture Act of 1939,
(ii) the Debentures have been duly authorized and, when
executed and authenticated in accordance with the Indenture
and delivered to and paid for by the Company, will be valid
and binding obligations of ConAgra and will be entitled to
the benefits of the Indenture in accordance with their
respective terms,
(iii) the Underwriting Agreement has been duly
authorized, executed and delivered by ConAgra and the
Company,
(iv) the Company is not an "investment company" or an
entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended,
(v) the statements in the Prospectus under the
captions "Description of Preferred Securities", "Certain
Terms of the Series __ Preferred Securities", "Description
of the Debentures", "Certain Terms of the Series __
Debentures", "Plan of Distribution", "Underwriting" and
"Certain United States Federal Income Tax Consequences",
insofar as such statements constitute summaries of the legal
matters or documents referred to therein, fairly present the
information called for with respect to such legal matters
and documents,
(vi) the Debentures, the Guarantee and the Preferred
Securities conform as to legal matters to the description
thereof contained in the Prospectus, as amended or
supplemented, if applicable, under the captions "Description
of the Debentures" and "Description of the Preferred
Securities", respectively, and
(vii) such counsel (1) does not believe that (except for
the financial statements and schedules and other financial
data contained therein or incorporated therein by reference,
as to which such counsel need not express any belief) any
part of the Registration Statement (including the documents
incorporated by reference therein) filed with the Commission
pursuant to the Securities Act of 1933 relating to the
Offered Securities, when such part became effective or as of
the date of the Underwriting Agreement, (2) is of the
opinion that the Registration Statement and Prospectus, as
amended or supplemented, if applicable (except for financial
statements and schedules and other financial data contained
therein or incorporated therein by reference as to which
such counsel need not express any opinion), comply as to
form in all material respects with the Securities Act of
1933 and the rules and regulations thereunder and (3) does
not believe that (except for the financial statements and
schedules and other financial data contained therein or
incorporated therein by reference as to which such counsel
need not express any belief) the Prospectus, as amended or
supplemented, if applicable, contains any untrue statement
or a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that such counsel may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and the Prospectus
and any amendments and supplements thereto (other than the
documents incorporated by reference therein) and review and
discussions of the contents thereof, but are without
independent check or verification except as specified.
Exhibit 4.4
ARTICLES OF ORGANIZATION
of
CONAGRA CAPITAL, L.C.
The undersigned Organizer of a limited liability company
organized under the Iowa Limited Liability Company Act, Chapter
490A, Code of Iowa, does hereby adopt the following Articles of
Organization for such limited liability company.
ARTICLE I
NAME OF THE LIMITED LIABILITY COMPANY
The name of the limited liability company shall be CONAGRA
CAPITAL, L.C.
ARTICLE II
INTERESTS OF THE LIMITED LIABILITY COMPANY
The membership interests of the limited liability company shall
be divided into two classes: (i) Series Preferred Membership
Interests ("Preferred Interests") and (ii) Common Membership
Interests ("Common Interests"). Members holding Preferred
Interests shall be referred to as "Preferred Members" and members
holding Common Interests shall be referred to as "Common
Members". Common Interests shall be non-assignable and non-
transferable without the unanimous consent of the Preferred
Members. Preferred Interests shall be freely assignable and
transferable. The Common Members shall have unlimited liability
for the debts, obligations, and liabilities of the limited
liability company, whether arising in contract, tort or
otherwise, and shall be obligated personally for all such debts,
obligations and liabilities of the limited liability company, in
the same way and to the same extent as if the limited liability
company were a partnership under the Iowa Uniform Partnership
Act, Chapter 486 of the Code of Iowa, of which the Common Members
were the general partners.
ARTICLE III
REGISTERED OFFICE AND REGISTERED AGENT
The address of the initial registered office of the limited
liability company is 729 Insurance Exchange Building, Des
Moines, Iowa 50309. The initial registered agent at such address
is The Prentice-Hall Corporation System, Inc.
ARTICLE IV
PRINCIPAL OFFICE
The address of the initial principal office of the limited
liability company is One ConAgra Drive, Omaha, Nebraska, 68102-
5001.
ARTICLE V
PERIOD OF DURATION
The limited liability company's existence shall commence upon the
acceptance of these Articles of Organization by the Secretary of
State of Iowa for filing and shall continue until May 15, 2094,
unless sooner dissolved pursuant to the terms of its operating
agreement, or as otherwise provided by law.
ARTICLE VI
WRITTEN OPERATING AGREEMENT
Any operating agreement entered into by the members of the
limited liability company, and any amendments or restatements
thereof, shall be in writing. No oral agreement among any of the
members of the limited liability company shall be deemed or
construed to constitute any portion of, or otherwise affect the
interpretation of, any written operating agreement of the limited
liability company, as amended and in existence from time to time.
Except as otherwise provided in the operating agreement, all
members of the limited liability company shall be bound by the
terms of the operating agreement as executed by the initial
Common Members of the limited liability company, as the same may
be amended from time to time in accordance with the operating
agreement.
ARTICLE VII
MANAGEMENT
The business and affairs of the limited liability company shall
be governed by the Common Members who shall be designated the
"Managing Members". Other than as explicitly set forth in the
operating agreement, the actions of a Preferred Member or any
other person (other than the Common Members) shall not bind the
limited liability company.
ARTICLE VIII
LIMITATION OF LIABILITY OF MANAGING MEMBERS
The Managing Members of the limited liability company shall not
be liable to the limited liability company or its members for
monetary damages for breach of fiduciary duty as a Managing
Member; provided, however, that this limitation of liability does
not apply to any of the following:
1. Breach of the Managing Member's duty of loyalty to the limited
liability company or its members.
2. Acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law.
3. Transactions from which the Managing Member derives an
improper personal benefit or a wrongful distribution in violation
of Iowa Code Section 490A.807.
IN WITNESS WHEREOF, the aforesaid organizer has caused the
execution of the foregoing Articles of Organization on this 10th
day of March, 1994.
/s/ J. Marc Ward
____________________________________
J. Marc Ward,
Organizer of CONAGRA CAPITAL, L.C.
ARTICLES OF CORRECTION
of
CONAGRA CAPITAL, L.C.
The undersigned Organizer of a limited liability company
organized under the Iowa Limited Liability Company Act, Chapter
490A, Code of Iowa, does hereby adopt the following Articles of
Correction for such limited liability company correcting an
incorrect statement contained in Article II of the Articles of
Organization, filed March 10, 1994, a copy of which is attached
hereto. A sentence in Article II incorrectly stated that the
Common Interests of the limited liability company were assignable
and transferable upon the unanimous consent of the Preferred
Members. Article II of the Articles of Organization of the
limited liability company is hereby corrected and superseded by
the following:
ARTICLE II
INTERESTS OF THE LIMITED LIABILITY COMPANY
The membership interests of the limited liability company shall
be divided into two classes: (i) Series Preferred Membership
Interests ("Preferred Interests") and (ii) Common Membership
Interests ("Common Interests"). Members holding Preferred
Interests shall be referred to as "Preferred Members" and members
holding Common Interests shall be referred to as "Common
Members". Common Interests shall be non-assignable and non-
transferable. Preferred Interests shall be freely assignable and
transferable. The Common Members shall have unlimited liability
for the debts, obligations, and liabilities of the limited
liability company, whether arising in contract, tort or
otherwise, and shall be obligated personally for all such debts,
obligations and liabilities of the limited liability company, in
the same way and to the same extent as if the limited liability
company were a partnership under the Iowa Uniform Partnership
Act, Chapter 486 of the Code of Iowa, of which the Common Members
were the general partners.
All other provisions of the Articles of Organization of the
limited liability company remain in full force and effect.
IN WITNESS WHEREOF, the aforesaid organizer has caused the
execution of the foregoing Articles of Correction on this 11th
day of March, 1994.
/s/ J. Marc Ward
____________________________________
J. Marc Ward,
Organizer of CONAGRA CAPITAL, L.C.
Exhibit 4.4
ARTICLES OF ORGANIZATION
of
CONAGRA CAPITAL, L.C.
The undersigned Organizer of a limited liability company
organized under the Iowa Limited Liability Company Act, Chapter
490A, Code of Iowa, does hereby adopt the following Articles of
Organization for such limited liability company.
ARTICLE I
NAME OF THE LIMITED LIABILITY COMPANY
The name of the limited liability company shall be CONAGRA
CAPITAL, L.C.
ARTICLE II
INTERESTS OF THE LIMITED LIABILITY COMPANY
The membership interests of the limited liability company shall
be divided into two classes: (i) Series Preferred Membership
Interests ("Preferred Interests") and (ii) Common Membership
Interests ("Common Interests"). Members holding Preferred
Interests shall be referred to as "Preferred Members" and members
holding Common Interests shall be referred to as "Common
Members". Common Interests shall be non-assignable and non-
transferable without the unanimous consent of the Preferred
Members. Preferred Interests shall be freely assignable and
transferable. The Common Members shall have unlimited liability
for the debts, obligations, and liabilities of the limited
liability company, whether arising in contract, tort or
otherwise, and shall be obligated personally for all such debts,
obligations and liabilities of the limited liability company, in
the same way and to the same extent as if the limited liability
company were a partnership under the Iowa Uniform Partnership
Act, Chapter 486 of the Code of Iowa, of which the Common Members
were the general partners.
ARTICLE III
REGISTERED OFFICE AND REGISTERED AGENT
The address of the initial registered office of the limited
liability company is 729 Insurance Exchange Building, Des
Moines, Iowa 50309. The initial registered agent at such address
is The Prentice-Hall Corporation System, Inc.
ARTICLE IV
PRINCIPAL OFFICE
The address of the initial principal office of the limited
liability company is One ConAgra Drive, Omaha, Nebraska, 68102-
5001.
ARTICLE V
PERIOD OF DURATION
The limited liability company's existence shall commence upon the
acceptance of these Articles of Organization by the Secretary of
State of Iowa for filing and shall continue until May 15, 2094,
unless sooner dissolved pursuant to the terms of its operating
agreement, or as otherwise provided by law.
ARTICLE VI
WRITTEN OPERATING AGREEMENT
Any operating agreement entered into by the members of the
limited liability company, and any amendments or restatements
thereof, shall be in writing. No oral agreement among any of the
members of the limited liability company shall be deemed or
construed to constitute any portion of, or otherwise affect the
interpretation of, any written operating agreement of the limited
liability company, as amended and in existence from time to time.
Except as otherwise provided in the operating agreement, all
members of the limited liability company shall be bound by the
terms of the operating agreement as executed by the initial
Common Members of the limited liability company, as the same may
be amended from time to time in accordance with the operating
agreement.
ARTICLE VII
MANAGEMENT
The business and affairs of the limited liability company shall
be governed by the Common Members who shall be designated the
"Managing Members". Other than as explicitly set forth in the
operating agreement, the actions of a Preferred Member or any
other person (other than the Common Members) shall not bind the
limited liability company.
ARTICLE VIII
LIMITATION OF LIABILITY OF MANAGING MEMBERS
The Managing Members of the limited liability company shall not
be liable to the limited liability company or its members for
monetary damages for breach of fiduciary duty as a Managing
Member; provided, however, that this limitation of liability does
not apply to any of the following:
1. Breach of the Managing Member's duty of loyalty to the limited
liability company or its members.
2. Acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law.
3. Transactions from which the Managing Member derives an
improper personal benefit or a wrongful distribution in violation
of Iowa Code Section 490A.807.
IN WITNESS WHEREOF, the aforesaid organizer has caused the
execution of the foregoing Articles of Organization on this 10th
day of March, 1994.
/s/ J. Marc Ward
____________________________________
J. Marc Ward,
Organizer of CONAGRA CAPITAL, L.C.
ARTICLES OF CORRECTION
of
CONAGRA CAPITAL, L.C.
The undersigned Organizer of a limited liability company
organized under the Iowa Limited Liability Company Act, Chapter
490A, Code of Iowa, does hereby adopt the following Articles of
Correction for such limited liability company correcting an
incorrect statement contained in Article II of the Articles of
Organization, filed March 10, 1994, a copy of which is attached
hereto. A sentence in Article II incorrectly stated that the
Common Interests of the limited liability company were assignable
and transferable upon the unanimous consent of the Preferred
Members. Article II of the Articles of Organization of the
limited liability company is hereby corrected and superseded by
the following:
ARTICLE II
INTERESTS OF THE LIMITED LIABILITY COMPANY
The membership interests of the limited liability company shall
be divided into two classes: (i) Series Preferred Membership
Interests ("Preferred Interests") and (ii) Common Membership
Interests ("Common Interests"). Members holding Preferred
Interests shall be referred to as "Preferred Members" and members
holding Common Interests shall be referred to as "Common
Members". Common Interests shall be non-assignable and non-
transferable. Preferred Interests shall be freely assignable and
transferable. The Common Members shall have unlimited liability
for the debts, obligations, and liabilities of the limited
liability company, whether arising in contract, tort or
otherwise, and shall be obligated personally for all such debts,
obligations and liabilities of the limited liability company, in
the same way and to the same extent as if the limited liability
company were a partnership under the Iowa Uniform Partnership
Act, Chapter 486 of the Code of Iowa, of which the Common Members
were the general partners.
All other provisions of the Articles of Organization of the
limited liability company remain in full force and effect.
IN WITNESS WHEREOF, the aforesaid organizer has caused the
execution of the foregoing Articles of Correction on this 11th
day of March, 1994.
/s/ J. Marc Ward
____________________________________
J. Marc Ward,
Organizer of CONAGRA CAPITAL, L.C.
Exhibit 4.7
---------------------------------------------------------------
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION,
Trustee
Subordinated Indenture
Dated as of March 10, 1994
____________
-----------------------------------------------------------------
CROSS REFERENCE SHEET
Subordinated Indenture
Dated March 10, 1994
Between
CONAGRA, INC.
and
FIRST TRUST NATIONAL ASSOCIATION
Provisions of Trust Indenture Act of 1939 and
Subordinated Indenture to be dated as of March 10, 1994 between
CONAGRA, INC. and FIRST TRUST NATIONAL ASSOCIATION, Trustee:
Section of the Act Section of Indenture
310(a)(1) and (2)................ 6.9
310(a)(3) and (4)................ Inapplicable
310(a)(5)........................ 6.9
310(b)........................... 6.8 and 6.10(a), (b) and (d)
310(c)........................... Inapplicable
311(a)........................... 6.13(a) and (c)(l) and (2)
311(b)........................... 6.13(b)
311(c)........................... Inapplicable
312(a)........................... 4.1 and 4.2(a)
312(b)........................... 4.2(a) and (b)(i) and (ii)
312(c)........................... 4.2(c)
313(a)........................... 4.4(a)(i), (ii), (iii), (iv),
(v) and (vi)
313(b)(1)........................ Inapplicable
313(b)(2)........................ 4.4
313(c)........................... 4.4
313(d)........................... 4.4
314(a)........................... 4.3
314(b)........................... Inapplicable
314(c)(1) and (2)................ 11.5
314(c)(3)........................ Inapplicable
314(d)........................... Inapplicable
314(e)........................... 11.5
314(f)........................... Inapplicable
315(a), (c) and (d).............. 6.1
315(b)........................... 5.11
315(e)........................... 5.12
316(a)(1)........................ 5.9, 5.10
316(a)(2)........................ Not required
316(a) (last sentence)........... 7.4
316(b)........................... 5.7
317(a)........................... 5.2
317(b)........................... 3.4(a) and (b)
318(a)........................... 11.7
*This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
____________
Page
PARTIES.............................................. 1
RECITALS
Authorization of Subordinated Indenture......... 1
Compliance with Legal Requirements.............. 1
Purpose of and Consideration for Indenture...... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined................. 1
Authorized Newspaper.................. 2
Board of Directors.................... 2
Board Resolution...................... 2
Business Day.......................... 2
Commission............................ 2
Composite Rate........................ 2-3
Consolidated Subsidiaries............. 3
Corporate Trust Office................ 3
Coupon................................ 3
Depositary............................ 3
Dollar................................ 3
ECU................................... 3
Event of Default...................... 3
Foreign Currency...................... 3
Holder, Holder of Securities,
Securityholder...................... 4
Indebtedness.......................... 4
Indenture............................. 4
Interest.............................. 4
Issuer................................ 4
Issuer Order.......................... 4
Officers' Certificate................. 4
Opinion of Counsel.................... 5
Original Issue Date................... 5
Original Issue Discount Security...... 5
Outstanding........................... 5-6
Person................................ 6
Principal............................. 6
Registered Global Security............ 6
Registered Security................... 6
Responsible Officer................... 6
Security or Securities................ 6
Senior Indebtedness................... 6-7
Subsidiary............................ 7
Trust Indenture Act of 1939........... 7
Trustee............................... 7
Unregistered Security................. 7
U.S. Government Obligations........... 7
Vice President........................ 7
Yield to Maturity..................... 7
ARTICLE TWO
SECURITIES
SECTION 2.1. Forms Generally....................... 7-8
SECTION 2.2. Form of Trustee's Certificate
of Authentication................... 8
SECTION 2.3. Amount Unlimited; Issuable in Series.. 8-12
SECTION 2.4. Authentication and Delivery of
Securities.......................... 12-14
SECTION 2.5. Execution of Securities............... 14-15
SECTION 2.6. Certificate of Authentication......... 15
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest.... 15-16
SECTION 2.8. Registration, Transfer and Exchange... 16-20
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities............... 20-21
SECTION 2.10. Cancellation of Securities;
Destruction Thereof................. 21-22
SECTION 2.11. Temporary Securities.................. 22-23
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest..... 23
SECTION 3.2. Offices for Payments, etc............. 23-24
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee................... 24
SECTION 3.4. Paying Agents......................... 25-26
SECTION 3.5. Written Statement to Trustee.......... 26
SECTION 3.6. Luxembourg Publications............... 26
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Issuer to Furnish Trustee Information
as to Names and Addresses of
Securityholders..................... 26-27
SECTION 4.2. Preservation and Disclosure of
Securityholders Lists............... 27-28
SECTION 4.3. Reports by the Issuer................. 28
SECTION 4.4. Reports by the Trustee................ 29-31
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default...... 32-34
SECTION 5.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt.............. 35-37
SECTION 5.3. Application of Proceeds............... 37-38
SECTION 5.4. Suits for Enforcement................. 38
SECTION 5.5. Restoration of Rights on Abandonment
of Proceedings...................... 38-39
SECTION 5.6. Limitations on Suits by
Securityholders..................... 39
SECTION 5.7. Unconditional Right of
Securityholders to Institute
Certain Suits....................... 39
SECTION 5.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default............................. 40
SECTION 5.9. Control by Holders of Securities...... 40-41
SECTION 5.10. Waiver of Past Defaults............... 41
SECTION 5.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances....................... 41-42
SECTION 5.12. Right of Court to Require Filing
of Undertaking to Pay Costs......... 42
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default............................. 42-44
SECTION 6.2. Certain Rights of the Trustee......... 44-45
SECTION 6.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof..... 45
SECTION 6.4. Trustee and Agents May Hold
Securities or Coupons;
Collections, etc.................... 45
SECTION 6.5. Moneys Held by Trustee................ 45
SECTION 6.6. Compensation and Indemnification
of Trustee and Its Prior Claim...... 45-46
SECTION 6.7. Right of Trustee to Rely on
Officers' Certificate, etc.......... 46
SECTION 6.8. Qualification of Trustee;
Conflicting Interests............... 47-54
SECTION 6.9. Persons Eligible for Appointment
as Trustee.......................... 54
SECTION 6.10. Resignation and Removal; Appointment
of Successor Trustee................ 54-56
SECTION 6.11. Acceptance of Appointment by
Successor Trustee................... 56-57
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee... 57-58
SECTION 6.13. Preferential Collection of Claims
Against the Issuer.................. 58-62
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by
Securityholders..................... 62-63
SECTION 7.2. Proof of Execution of Instruments and
of Holding of Securities............ 63-64
SECTION 7.3. Holders to be Treated as Owners....... 64
SECTION 7.4. Securities Owned by Issuer Deemed Not
Outstanding......................... 64-65
SECTION 7.5. Right of Revocation of Action Taken... 65
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without
Consent of Securityholders.......... 65-67
SECTION 8.2. Supplemental Indentures With Consent
of Securityholders.................. 67-68
SECTION 8.3. Effect of Supplemental Indenture...... 69
SECTION 8.4. Documents to Be Given to Trustee...... 69
SECTION 8.5. Notation on Securities in Respect of
Supplemental Indentures............. 69
SECTION 8.6. Subordination Unimpaired.............. 69
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Issuer May Consolidate, etc., on
Certain Terms....................... 69-70
SECTION 9.2. Successor Issuer Substituted.......... 70
SECTION 9.3. Opinion of Counsel Delivered to Trustee. 70-71
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of
Indenture........................... 71-74
SECTION 10.2. Application by Trustee of Funds
Deposited for Payment of Securities. 74-75
SECTION 10.3. Repayment of Moneys Held by Paying
Agent............................... 75
SECTION 10.4. Return of Moneys Held By Trustee and
Paying Agent Unclaimed for Two
Years............................... 75
SECTION 10.5. Indemnity For U.S. Government
Obligations......................... 75
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability................ 76
SECTION 11.2. Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities and Coupons.............. 76
SECTION 11.3. Successors and Assigns of Issuer
Bound by Indenture.................. 76
SECTION 11.4. Notices and Demands on Issuer,
Trustee and Holders of Securities
and Coupons......................... 76-77
SECTION 11.5. Officers' Certificates and Opinions
of Counsel; Statements to Be Con-
tained Therein...................... 77-78
SECTION 11.6. Payments Due on Saturdays, Sundays
and Holidays........................ 78
SECTION 11.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939......................... 78-79
SECTION 11.8. New York Law to Govern................ 79
SECTION 11.9. Counterparts.......................... 79
SECTION 11.10. Effect of Headings.................... 79
SECTION 11.11. Securities in a Foreign Currency
or in ECU........................... 79-80
SECTION 11.12. Judgment Currency..................... 80
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article.............. 80
SECTION 12.2. Election to Redeem; Notice of Redemption;
Partial Redemptions................. 81-82
SECTION.12.3. Payment of Securities Called for
Redemption.......................... 82-83
SECTION 12.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption.......................... 84
SECTION 12.5. Mandatory and Optional Sinking
Funds............................... 84-86
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1. Securities and Coupons Subordinated to
Senior Indebtedness................. 86-89
SECTION 13.2. Disputes with Holders of Certain
Senior Indebtedness................. 89
SECTION 13.3. Subrogation........................... 89
SECTION 13.4. Obligation of Issuer Unconditional.... 90
SECTION 13.5. Payments on Securities and Coupons
Permitted........................... 90
SECTION 13.6. Effectuation of Subordination by
Trustee............................. 90
SECTION 13.7. Knowledge of Trustee.................. 90-91
SECTION 13.8. Trustee May Hold Senior Indebtedness.. 91
SECTION 13.9. Rights of Holders of Senior
Indebtedness Not Impaired........... 91
SECTION 13.10. Article Applicable to Paying Agents... 91
SECTION 13.11. Trustee; Compensation Not Prejudiced.. 92
TESTIMONIUM.......................................... 92
SIGNATURES........................................... 92
THIS SUBORDINATED INDENTURE, dated as of March 10, 1994
between CONAGRA, INC., a Delaware corporation (the "Issuer"), and
FIRST TRUST NATIONAL ASSOCIATION, a national banking corporation
(the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from
time to time of its unsecured subordinated debentures, notes or
other evidences of indebtedness to be issued in one or more
series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the
terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution
and delivery of this Indenture to provide, among other things,
for the authentication, delivery and administration of the
Securities; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement according to its terms have been
done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
the Securities by the holders thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate
benefit of the respective holders from time to time of the
Securities and of the Coupons, if any, appertaining thereto as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture
Act of 1939 or the definitions of which in the Securities Act of
1933 are referred to in the Trust Indenture Act of 1939,
including terms defined therein by reference to the Securities
Act of 1933 (except as herein otherwise expressly provided or
unless the context otherwise clearly requires), shall have the
meanings assigned to such terms in said force at the date of this
Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of
any computation. The words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular.
"Authorized Newspaper" means a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition), in the case of the United
Kingdom, will, if practicable, be the Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be
the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day
for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or
Luxembourg, as applicable. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or
other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board of Directors" means either the Board of
Directors of the Issuer or any committee of such Board duly
authorized to act on its behalf.
"Board Resolution" means a copy of one or more
resolutions, certified by the secretary or an assistant secretary
of the Issuer to have been duly adopted, or consented to, by the
Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, a
day that in the city (or in any of the cities, if more than one)
in which amounts are payable, as specified in the form of such
Security, is not a day on which banking institutions are
authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the
execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such
date.
"Composite Rate" means, at any time, the rate of
interest, per annum, compounded semiannually, equal to the sum of
the rates of interest borne by the Securities of each series (as
specified on the face of the Securities of each series, provided,
that, in the case of the Securities with variable rates of
interest, the interest rate to be used in calculating the
Composite Rate shall be the interest rate applicable to such
Securities at the beginning of the year in which the Composite
Rate is being determined and, provided, further, that, in the
case of Securities which do not bear interest, the interest rate
to be used in calculating the Composite Rate shall be a rate
equal to the yield to maturity on such Securities, calculated at
the time of issuance of such Securities) multiplied, in the case
of each series of Securities, by the percentage of the aggregate
principal amount of the Securities of all series Outstanding
represented by the Outstanding Securities of such series. For
the purposes of this calculation, the aggregate principal amounts
of Outstanding Securities that are denominated in a foreign
currency, shall be calculated in the manner set forth in Section
11.11.
"Consolidated Subsidiaries" means subsidiaries the
accounts of which are consolidated with those of the Issuer in
the preparation, in accordance with generally accepted accounting
principles, of its consolidated financial statements.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which
office is, at the date as of which this Indenture is dated,
located in St. Paul, Minnesota.
"Coupon" means any interest coupon appertaining to a
Security.
"Depositary" means, with respect to the Securities of
any series issuable or issued in the form of one or more
Registered Global Securities, the Person designated as Depositary
by the Company pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder,
and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Registered
Global Securities of that series.
"Dollar" means the coin or currency of the United
States of America as at the time of payment is legal tender for
the payment of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" means any event or condition
specified as such in Section 5.1.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Holder", "Holder of Securities", "Securityholder" or
other similar terms mean (a) in the case of any Registered
Security, the person in whose name such Security is registered in
the security register kept by the Issuer for that purpose in
accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" means any and all obligations of a
corporation for money borrowed which in accordance with generally
accepted accounting principles would be reflected on the balance
sheet of such corporation as a liability on the date as of which
Indebtedness is to be determined. For the purpose of computing
the amount of any Indebtedness of any corporation, there shall be
excluded all Indebtedness of such corporation for the payment or
redemption or satisfaction of which money or securities (or
evidences of such Indebtedness, if permitted under the terms of
the instrument creating such Indebtedness) in the necessary
amount shall have been deposited in trust with the proper
depositary, whether upon or prior to the maturity or the date
fixed for redemption of such Indebtedness; and, in any instance
where Indebtedness is so excluded, for the purpose of computing
the assets of such corporation there shall be excluded the money,
securities or evidences of Indebtedness deposited by such
corporation in trust for the purpose of paying or satisfying such
Indebtedness.
"Indenture" or "Subordinated Indenture" means this
instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-
interest bearing Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article
Six) ConAgra, Inc. and, subject to Article Nine, its successors
and assigns.
"Issuer Order" means a written statement, request or
order of the Issuer signed in its name by the chairman of the
Board of Directors, the president or any vice president of the
Issuer.
"Officers' Certificate" means a certificate signed by
the chairman of the Board of Directors or the president or any
vice president and by the treasurer or the secretary or any
assistant secretary of the Issuer and delivered to the Trustee.
Each such certificate shall include the statements provided for
in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed
by the general corporate counsel of the Issuer or such other
legal counsel who may be an employee of or counsel to the Issuer.
Each such opinion shall include the statements provided for in
Section 11.5.
"Original Issue Date" of any Security (or portion
thereof) means the earlier of (a) the date of such Security or
(b) the date of any Security (or portion thereof) for which such
Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Security" means any Security
that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.1.
"Outstanding" (except as otherwise provided in Section
6.8), when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time,
all Securities authenticated and delivered by the Trustee under
this Indenture, except
(a) Securities theretofore cancelled by
the Trustee or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for
the payment or redemption of which moneys or
U.S. Government Obligations (as provided for
in Section 10.1) in the necessary amount shall
have been deposited in trust with the Trustee
or with any paying agent (other than the
Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for
the Holders of such Securities (if the Issuer
shall act as its own paying agent), provided
that if such Securities, or portions thereof,
are to be redeemed prior to the maturity
thereof, notice of such redemption shall have
been given as herein provided, or provision
satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities in substitution for which
other Securities shall have been authenticated
and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except
with respect to any such Security as to which
proof satisfactory to the Trustee is presented
that such Security is held by a person in
whose hands such Security is a legal, valid
and binding obligation of the Issuer).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all series
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.1.
"Person" means any individual, corporation,
partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Principal" whenever used with reference to the
Securities or any Security or any portion thereof, shall be
deemed to include "and premium, if any".
"Registered Global Security", means a Security
evidencing all or a part of a series of Registered Securities,
issued to the Depositary for such series in accordance with
Section 2.4, and bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security registered on
the Security register of the Issuer.
"Responsible Officer" when used with respect to the
Trustee means the chairman of the Board of Directors, any vice
chairman of the board of directors, the chairman of the trust
committee, the chairman of the executive committee, any vice
chairman of the executive committee, the president, any vice
president, the cashier, the secretary, the treasurer, any trust
officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of
the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" (except as otherwise
provided in Section 6.8) has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities
that have been authenticated and delivered under this Indenture.
"Senior Indebtedness" means obligations (other than
non-recourse obligations and the Securities) of, or guaranteed or
assumed by, the Issuer for borrowed money (including both senior
and subordinated indebtedness for borrowed money (other than the
Securities)) or evidenced by bonds, debentures, notes or other
similar instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation, whether existing as of the date hereof or
subsequently incurred by the Issuer.
"Subsidiary" means a corporation a majority of the
outstanding voting stock of which is owned, directly or
indirectly, by the Issuer or by one or more subsidiaries of the
Issuer, or by the Issuer and one or more subsidiaries of the
Issuer.
"Trust Indenture Act of 1939" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was
originally executed.
"Trustee" means the Person identified as "Trustee" in
the first paragraph hereof and, subject to the provisions of
Article Six, shall also include any successor trustee. "Trustee"
shall also mean or include each Person who is then a trustee
hereunder and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such
series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning
set forth in Section 10.1(A).
"Vice President" when used with respect to the Issuer
or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after
the title of "vice president".
"Yield to Maturity" means the yield to maturity on a
series of securities, calculated at the time of issuance of such
series, or, if applicable, at the most recent redetermination of
interest on such series, and calculated in accordance with
accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each
series and the Coupons, if any, to be attached thereto shall be
substantially in such form (not inconsistent with this Indenture)
as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board
Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent
with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons, if
any.
SECTION 2.2 Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on
all Securities shall be in substantially the following form:
This is one of the Securities of the series designated
herein and referred to in the within-mentioned Subordinated
Indenture.
First Trust National Association,
as Trustee
By ,
Authorized Officer
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and
the Securities of each series shall rank equally and pari passu
with the Securities of each other series, but all Securities
issued hereunder shall be subordinate and junior in right of
payment, to the extent and in the manner set forth in Article
Thirteen, to all Senior Indebtedness of the Issuer. There shall
be established in or pursuant to one or more Board Resolutions or
to the extent established pursuant to (rather than set forth in)
a Board Resolution, in an Officers' Certificate detailing such
establishment and/or established in one or more indentures
supplemental hereto,
(1) the designation of the Securities of
the series (which may be part of a series of
Securities previously issued);
(2) any limit upon the aggregate
principal amount of the Securities of the
series that may be authenticated and delivered
under this Indenture (except for Securities
authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to
Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or
currency in which the Securities of that
series are denominated (including, but not
limited to, any Foreign Currency or ECU);
(4) the date or dates on which the
principal of the Securities of the series is
payable;
(5) the rate or rates at which the
Securities of the series shall bear interest,
if any, the date or dates from which such
interest shall accrue, on which such interest
shall be payable and (in the case of
Registered Securities) on which a record shall
be taken for the determination of Holders to
whom interest is payable and/or the method by
which such rate or rates or date or dates
shall be determined;
(6) the place or places where the
principal of and any interest on Securities of
the series shall be payable (if other than as
provided in Section 3.2);
(7) the right, if any, of the Issuer to
redeem Securities, in whole or in part, at its
option and the period or periods within which,
the price or prices at which, and any terms
and conditions upon which, Securities of the
series may be redeemed, pursuant to any
sinking fund or otherwise;
(8) the obligation, if any, of the
Issuer to redeem, purchase or repay Securities
of the series pursuant to any mandatory
redemption, sinking fund or analogous
provisions or at the option of a Holder
thereof and the price or prices at which and
the period or periods within which and any
terms and conditions upon which Securities of
the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such
obligation or the right of the Issuer to
remarket Securities of the series that have
been redeemed, purchased or repaid;
(9) if other than denominations of $1000
and any integral multiple thereof in the case
of Registered Securities, or $1000 and $5000
in the case of Unregistered Securities, the
denominations in which Securities of the
series shall be issuable;
(10) if other than the principal amount
thereof, the portion of the principal amount
of Securities of the series which shall be
payable upon declaration of acceleration of
the maturity thereof;
(11) if other than the coin or currency
in which the Securities of that series are
denominated, the coin or currency in which
payment of the principal of or interest on the
Securities of such series shall be payable
(including, but not limited to, any Foreign
Currency or ECU);
(12) if the principal of or interest on
the Securities of such series are to be
payable, at the election of the Issuer or a
Holder thereof, in a coin or currency other
than that in which the Securities are
denominated, the period or periods within
which, and the terms and conditions upon
which, such election may be made;
(13) if the amount of payments of
principal of and interest on the Securities of
the series may be determined with reference to
an index, formula or method, the manner in
which such amounts shall be determined;
(14) whether the Securities of the series
will be issuable as Registered Securities (and
if so, whether such Securities will be
issuable as Registered Global Securities) or
Unregistered Securities (with or without
Coupons), or any combination of the foregoing,
any restrictions applicable to the offer, sale
or delivery of Unregistered Securities or the
payment of interest thereon and, if other than
as provided in Section 2.8, the terms upon
which Unregistered Securities of any series
may be exchanged for Registered Securities of
such series and vice versa;
(15) whether, under what circumstances
and in what amounts the Issuer will pay
additional amounts on the Securities of the
series held by a person who is not a U.S.
person in respect of any tax, assessment or
governmental charge withheld or deducted and,
if so, whether the Issuer will have the option
to redeem such Securities rather than pay such
additional amounts;
(16) if the Securities of such series are
to be issuable in definitive form (whether
upon original issue or upon exchange of a
temporary Security of such series) only upon
receipt of certain certificates or other
documents or satisfaction of other conditions,
then the form and terms of such certificates,
documents or conditions;
(17) whether warrants shall be attached
to such Securities and the terms of any such
warrants;
(18) whether such Securities are
exchangeable or convertible into new
Securities of a different series and/or shares
of stock of the Issuer and/or other securities
and the terms of such exchange or conversion
and the terms, rights and preferences of such
Securities or stock;
(19) any trustees, depositaries,
authenticating or paying agents, transfer
agents or registrars or any other agents with
respect to the Securities of such series;
(20) any other events of default or
covenants with respect to the Securities of
such series; and
(21) any other terms of the series (which
terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in
the case of Registered Securities as to denomination and except
as may otherwise be provided by or pursuant to the Board
Resolution or Officer's Certificate referred to above or as set
forth in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board
Resolution, such Officer's Certificate or in any such indenture
supplemental hereto and, unless otherwise provided, a series may
be reopened for issuances of additional Securities of such
series.
If any of the foregoing terms are not available at the
time such Board Resolutions are adopted, or such Officers'
Certificate or any supplemental indenture is executed, such Board
Resolutions, Officers' Certificate or supplemental indenture may
reference the document or documents to be created in which such
terms will be set forth prior to the issuance of such Securities.
SECTION 2.4 Authentication and Delivery of Securities.
The Issuer may deliver Securities of any series having attached
thereto appropriate Coupons, if any, executed by the Issuer to
the Trustee for authentication together with the applicable
documents referred to below in this Section, and the Trustee
shall thereupon authenticate and deliver such Securities to or
upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be
specified from time to time by an Issuer Order. The maturity
date, original issue date, interest rate and any other terms of
the Securities of such series and Coupons, if any, appertaining
thereto shall be determined by or pursuant to such Issuer Order
and procedures. If provided for in such procedures, such Issuer
Order may authorize authentication and delivery pursuant to oral
instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities the Trustee shall be entitled to receive, and (subject
to Section 6.1) shall be fully protected in relying upon:
(1) an Issuer Order requesting such
authentication and setting forth delivery
instructions if the Securities and Coupons, if
any, are not to be delivered to the Issuer;
(2) any Board Resolution, Officers'
Certificate and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3
by or pursuant to which the forms and terms of
the Securities and Coupons, if any, were
established;
(3) an Officers' Certificate setting
forth the form or forms and terms of the
Securities and Coupons, if any, stating that
the form or forms and terms of the Securities
and Coupons, if any, have been established
pursuant to Sections 2.1 and 2.3 and comply
with this Indenture, and covering such other
matters as the Trustee may reasonably request;
and
(4) an Opinion of Counsel to the effect
that:
(a) the form or forms and terms of
such Securities and Coupons, if any, have been
duly authorized and established in conformity
with the provisions of this Indenture;
(b) the authentication and delivery
of such Securities and Coupons, if any, by the
Trustee are authorized under the provisions of
this Indenture;
(c) such Securities and Coupons, if
any, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner
and subject to any conditions specified in
such Opinion of Counsel, will constitute valid
and binding obligations of the Issuer; and
(d) all laws and requirements in
respect of the execution and delivery by the
Issuer of the Securities and Coupons, if any,
have been complied with;
and covering such other matters as the Trustee may reasonably
request.
Notwithstanding the provisions of Section 2.3 and of
the preceding paragraph, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to
deliver the Board Resolution and/or Officers' Certificate
otherwise required pursuant to Section 2.3 or the Issuer Order
and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of
each Security of such series if such documents are delivered at
or prior to the time of authentication upon original issuance of
the first Security of such series to be issued and reasonably
covers such subsequent issues. After the original issuance of
the first Security of such series to be issued, any separate
request by the Issuer that the Trustee authenticate Securities of
such series for original issuance will be deemed to be a
certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to
the authentication and delivery of such Securities.
The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the
Trustee, being advised by counsel, determines that such action
may not lawfully be taken by the Issuer or if the Trustee in good
faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders or
would affect the Trustee's own rights, duties or immunities under
the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3
that the Securities of a series are to be issued in the form of
one or more Registered Global Securities, then the Issuer shall
execute and the Trustee shall, in accordance with this Section
and the Issuer Order with respect to such series, authenticate
and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to
the aggregate principal amount of all of the Securities of such
series issued and not yet cancelled, (ii) shall be registered in
the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3
must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute
or regulation.
SECTION 2.5 Execution of Securities. The Securities
and, if applicable, each Coupon appertaining thereto shall be
signed on behalf of the Issuer by the chairman of its Board of
Directors or any vice chairman of its Board of Directors or its
president or any vice president or its treasurer, under its
corporate seal (except in the case of Coupons) which may, but
need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such Officers.
The seal of the Issuer may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced
on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any
Security that has been duly authenticated and delivered by the
Trustee.
In case any officer of the Issuer who shall have signed
any of the Securities or Coupons, if any, shall cease to be such
officer before the Security or Coupon so signed (or the Security
to which the Coupon so signed appertains) shall be authenticated
and delivered by the Trustee or disposed of by the Issuer, such
Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such
Security or Coupon had not ceased to be such officer of the
Issuer; and any Security or Coupon may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of
such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of
this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized
officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains
shall have been duly executed by the Trustee. The execution of
such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest. The Securities of each series shall be
issuable as Registered Securities or Unregistered Securities in
denominations established as contemplated by Section 2.3 or, with
respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple
thereof. If denominations of Unregistered Securities of any
series are not so established, such Securities shall be issuable
in denominations of $1,000 and $5,000. The Securities of each
series shall be numbered, lettered or otherwise distinguished in
such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of
the Trustee, as evidenced by the execution and authentication
thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
provided in the resolution or resolutions of the Board of
Directors of the Issuer referred to in Section 2.3. The
Securities of each series shall bear interest, if any, from the
date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
The person in whose name any Registered Security of any
series is registered at the close of business on any record date
applicable to a particular series with respect to any interest
payment date for such series shall be entitled to receive the
interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted
interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close
of business on a subsequent record date (which shall be not less
than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the Holders of Registered Securities not
less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment
date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in
the terms of the Registered Securities of such series established
as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar
month or, if such interest payment date is the fifteenth day of a
calendar month, the first day of such calendar month, whether or
not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The
Issuer will keep at each office or agency to be maintained for
the purpose as provided in Section 3.2 for each series of
Securities a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will provide for
the registration of Securities of such series and the
registration of transfer of Registered Securities of such series.
Such register shall be in written form in the English language or
in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register
or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of
any Registered Security of any series at any such office or
agency to be maintained for the purpose as provided in Section
3.2, the Issuer shall execute and the Trustee shall authenticate
and deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of the same series,
maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary
Unregistered Securities) and Coupons (except for Coupons attached
to any temporary Unregistered Global Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered
Securities of any series (other than a Registered Global
Security, except as set forth below) may be exchanged for a
Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be
exchanged at the agency of the Issuer that shall be maintained
for such purpose in accordance with Section 3.2 and upon payment,
if the Issuer shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified
pursuant to Section 2.3, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for
Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges
hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest
rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified pursuant
to Section 2.3, such Unregistered Securities may be exchanged for
Unregistered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2 or as specified pursuant to Section
2.3, with, in the case of Unregistered Securities that have
Coupons attached, all unmatured Coupons and all matured Coupons
in default thereto appertaining, and upon payment, if the Issuer
shall so require, of the charges hereinafter provided. Unless
otherwise specified pursuant to Section 2.3, Registered
Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer
provided for in this Indenture shall be promptly cancelled and
disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required
by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in
form satisfactory to the Issuer and the Trustee duly executed by
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such
transaction.
The Issuer shall not be required to exchange or
register a transfer of (a) any Securities of any series for a
period of 15 days next preceding the first mailing of notice of
redemption of Securities of such series to be redeemed or (b) any
Securities selected, called or being called for redemption, in
whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section
2.8, unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Registered Global
Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Registered
Securities of a series represented by one or more Registered
Global Securities notifies the Issuer that it is unwilling or
unable to continue as Depositary for such Registered Securities
or if at any time the Depositary for such Registered Securities
shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to such Registered
Securities. If a successor Depositary for such Registered
Securities is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3 that
such Registered Securities be represented by one or more
Registered Global Securities shall no longer be effective and the
Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form
without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or
Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in
the form of one or more Registered Global Securities shall no
longer be represented by a Registered Global Security or
Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series
in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If an Event of Default occurs and is continuing with
respect to Registered Securities of any series issued in the form
of one or more Registered Global Securities, upon written notice
from the Depositary, the Issuer will execute, and the Trustee,
upon receipt of an Officer's Certificate for the authentication
and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive
registered forms without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities,
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global
Security, the Depositary for such Registered Global Security may
surrender such Registered Global Security in exchange in whole or
in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and
such Depositary. Thereupon, the Issuer shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such
Depositary a new Registered Security or
Securities of the same series, of any
authorized denominations as requested by such
Person, in an aggregate principal amount equal
to and in exchange for such Person's
beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered
Global Security in a denomination equal to the
difference, if any, between the principal
amount of the surrendered Registered Global
Security and the aggregate principal amount of
Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without coupons, in
authorized denominations, such Registered Global Security shall
be cancelled by the Trustee or an agent of the Issuer or the
Trustee. Securities in definitive registered form without
coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names
and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such transfer or
exchange.
Notwithstanding anything herein or in the terms of any
series of Securities to the contrary, none of the Issuer, the
Trustee or any agent of the Issuer or the Trustee (any of which,
other than the Issuer, shall rely on an Officers' Certificate and
an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the
Issuer (such as, for example, the inability of the Issuer to
deduct from its income, as computed for Federal income tax
purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities. In case any temporary or definitive Security
or any Coupon appertaining to any Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any
officer of the Issuer, the Trustee shall authenticate and deliver
a new Security of the same series, maturity date, interest rate
and original issue date, bearing a number or other distinguishing
symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the
Securities so mutilated, defaced, destroyed, lost or stolen, or
in exchange or substitution for the Security to which such
mutilated, defaced, destroyed, lost or stolen Coupon appertained,
with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to
the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in
every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security
or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related
Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon,
the Issuer may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee or its agent) connected therewith. In
case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer
may instead of issuing a substitute Security, pay or authorize
the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or
Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to
save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Issuer and
the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series
issued pursuant to the provisions of this Section by virtue of
the fact that any such Security or Coupon is destroyed, lost or
stolen shall constitute an additional contractual obligation of
the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of
such series duly authenticated and delivered hereunder. All
Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or
payment of mutilated, defaced or destroyed, lost or stolen
Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Destruction
Thereof. All Securities and Coupons surrendered for payment,
redemption, registration of transfer or exchange, or for credit
against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the
Trustee or any agent of the Trustee for cancellation or, if
surrendered to the Trustee, shall be cancelled by it (unless such
Securities are to be remarketed pursuant to the terms thereof);
and no Securities or Coupons shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of cancelled Securities and
Coupons held by it and deliver a certificate of disposition to
the Issuer. If the Issuer shall acquire any of the Securities or
Coupons, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities
or Coupons unless and until the same are delivered to the Trustee
or any agent of the Trustee or the agent of the Trustee for
cancellation.
SECTION 2.11 Temporary Securities. Pending the
preparation of definitive Securities for any series, the Issuer
may execute and the Trustee shall authenticate and deliver
temporary Securities for such series (printed, lithographed,
typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series
shall be issuable as Registered Securities without coupons, or as
Unregistered Securities with or without coupons attached thereto,
of any authorized denomination, and substantially in the form of
the definitive Securities of such series but with such omissions,
insertions and variations as may be appropriate for temporary
Registered Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution
and authentication thereof. Temporary Securities may contain
such references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the
Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities
of such series and thereupon temporary Registered Securities of
such series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer
for such purpose as specified pursuant to Section 2.3, and the
Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal
amount of definitive Securities of the same series having
authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise
established pursuant to Section 2.3. The provisions of this
Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of any
series that may be established pursuant to Section 2.3 (including
any provision that Unregistered Securities of such series
initially be issued in the form of a single global Unregistered
Security to be delivered to a depositary or agency located
outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would
be issued in exchange for such temporary global Unregistered
Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The
Issuer covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be
paid the principal of, and interest on, each of the Securities of
such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places,
at the respective times and in the manner provided in such
Securities and in the Coupons, if any, appertaining thereto and
in this Indenture. The interest on Securities with Coupons
attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally
mature. If any temporary Unregistered Security provides that
interest thereon may be paid while such Security is in temporary
form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the
terms of such Security) shall be paid, as to the installments of
interest evidenced by Coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest,
in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities
(together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to or upon the
written order of the Holders thereof and at the option of the
Issuer may be paid by wire transfer (to Holders of $10,000,000 or
more of Registered Securities) or by mailing checks for such
interest payable to or upon the written order of such Holders at
their last addresses at they appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. The Issuer will
maintain in The City of New York, an agency where the Registered
Securities of each series may be presented for payment, an agency
where the Securities of each series may be presented for exchange
as provided in this Indenture and, if applicable, pursuant to
Section 2.3 and an agency where the Registered Securities of each
series may be presented for registration of transfer as in this
Indenture provided.
The Issuer will maintain one or more agencies in a city
or cities located outside the United States (including any city
in which such an agency is required to be maintained under the
rules of any stock exchange on which the Securities of such
series are listed) where the Unregistered Securities, if any, of
each series and Coupons, if any, appertaining thereto may be
presented for payment. No payment on any Unregistered Security
or Coupon will be made upon presentation of such Unregistered
Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in,
or by mail to an address in, the United States unless pursuant to
applicable United States laws and regulations then in effect such
payment can be made without adverse tax consequences to the
Issuer. Notwithstanding the foregoing, payments in Dollars of
Unregistered Securities of any series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in The City of New York if such payment in
Dollars at each agency maintained by the Issuer outside the
United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other
similar restrictions.
The Issuer will maintain in The City of New York, an
agency where notices and demands to or upon the Issuer in respect
of the Securities of any series, the Coupons appertaining
thereto, or this Indenture may be served.
The Issuer will give to the Trustee written notice of
the location of each such agency and of any change of location
thereof. In case the Issuer shall fail to maintain any agency
required by this Section to be located in the Borough of
Manhattan, The City of New York, or shall fail to give such
notice of the location or of any change in the location of any of
the above agencies, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the
Trustee.
The Issuer may from time to time designate one or more
additional agencies where the Securities of a series and any
Coupons appertaining thereto may be presented for payment, where
the Securities of that series may be presented for exchange as
provided in this Indenture and pursuant to Section 2.3 and where
the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the
Issuer may deem desirable or expedient; provided, however, that
no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain the agencies provided for in
this Section. The Issuer will give to the Trustee prompt written
notice of any such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10, a Trustee, so that there shall at all
times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall
appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received
by it as such agent for the payment of the
principal of or interest on the Securities of
such series (whether such sums have been paid
to it by the Issuer or by any other obligor on
the Securities of such series) in trust for
the benefit of the Holders of the Securities
of such series, or Coupons appertaining
thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice
of any failure by the Issuer (or by any other
obligor on the Securities of such series) to
make any payment of the principal of or
interest on the Securities of such series when
the same shall be due and payable, and
(c) that at any time during the
continuance of any such failure, upon the
written request of the Trustee, it will
forthwith pay to the Trustee all sums so held
in trust by such paying agent.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of such series,
deposit with the paying agent a sum sufficient to pay such
principal or interest so becoming due, and (unless such paying
agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent with
respect to the Securities of any series, it will, on or before
each due date of the principal of or interest on the Securities
of such series, set aside, segregate and hold in trust for the
benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly
notify the Trustee of any failure to take such action.
Anything in this Section to the contrary
notwithstanding, but subject to Section 10.1, the Issuer may at
any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust for any such series by the
Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section is subject to the provisions of Sections 10.3 and
10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer
will deliver to the Trustee on or before April 15 in each year
(beginning in 1994) a written statement, signed by two of its
officers (which need not comply with Section 11.5), stating that
in the course of the performance by the signers of their duties
as officers of the Issuer they would normally have knowledge of
any default by the Issuer in the performance or fulfillment of
any covenant, agreement or condition contained in this Indenture,
stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers
have knowledge and the nature thereof.
SECTION 3.6 Luxembourg Publications. In the event of
the publication of any notice pursuant to Section 5.11, 6.8,
6.10(a), 6.11, 8.2, 10.4, 12.2 or 12.5, the party making such
publication in the Borough of Manhattan, The City of New York and
London shall also, to the extent that notice is required to be
given to Holders of Securities of any series by applicable
Luxembourg law or stock exchange regulation, as evidenced by an
Officers' Certificate delivered to such party, make a similar
publication in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders. The Issuer covenants and
agrees that it will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require
of the names and addresses of the Holders of the Registered
Securities of each series:
(a) semiannually and not more than 15
days after each record date for the payment of
interest on such Registered Securities, as
hereinabove specified, as of such record date
and on dates to be determined pursuant to
Section 2.3 for noninterest bearing Registered
Securities in each year, and
(b) at such other times as the Trustee
may request in writing, within 30 days after
receipt by the Issuer of any such request as
of a date not more than 15 days prior to the
time such information is furnished,
provided that if and so long as the Trustee shall be the Security
registrar for such series and all of the Securities of any series
are Registered Securities, such list shall not be required to be
furnished.
SECTION 4.2 Preservation and Disclosure of
Securityholders Lists.
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, all information as
to the names and addresses of the Holders of each
series of Registered Securities (i) contained in the
most recent list furnished to it as provided in Section
4.1, (ii) received by it in the capacity of Security
registrar for such series, if so acting, and (iii)
filed with it within two preceding years pursuant to
4.4(c)(ii). The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new
list so furnished.
(b) In case three or more Holders of Securities
(hereinafter referred to as "applicants") apply in
writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding
the date of such application, and such application
states that the applicants desire to communicate with
other Holders of Securities of a particular series (in
which case the applicants must all hold Securities of
such series) or with holders of all Securities respect
to their rights under this Indenture or under such
Securities and such application is accompanied by a
copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford to such applicants access to
the information preserved at the time by the
Trustee in accordance with the provisions of
subsection (a) of this Section, or
(ii) inform such applicants as to the
approximate number of Holders of Registered
Securities of such series or of all Registered
Securities, as the case may be, whose names
and addresses appear in the information
preserved at the time by the Trustee, in
accordance with the provisions of subsection
(a) of this Section, and as to the approximate
cost of mailing to such Securityholders the
form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee
shall, upon the written request of such applicants,
mail to each Securityholder of such series or all
Holders of Registered Securities, as the case may be,
whose name and address appears in the information
preserved at the time by the Trustee in accordance with
the provisions of subsection (a) of this Section a copy
of the form of proxy or other communication which is
specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of
the reasonable expenses of mailing, unless within five
days after such tender, the Trustee shall mail to such
applicants and file with the Commission together with a
copy of the material to be mailed, a written statement
to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the
Holders of Registered Securities of such series or of
all Registered Securities, as the case may be, or would
be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If
the Commission, after opportunity for a hearing upon
the objections specified in the written statement so
filed, shall enter an order refusing to sustain any of
such objections or if, after the entry of an order
sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been
met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such
Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities and
Coupons, by receiving and holding the same, agrees with
the Issuer and the Trustee that neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee
shall be held accountable by reason of the disclosure
of any such information as to the names and addresses
of the Holders of Securities in accordance with the
provisions of subsection (b) of this Section,
regardless of the source from which such information
was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant
to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer
covenants:
(a) to file with the Trustee, within 15 days
after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the
information, documents, and other reports (or copies of
such portions of any of the foregoing as the Commission
may from time to time by rules and regulations
prescribe) which the Issuer may be required to file
with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, or if the
Issuer is not required to file information, documents,
or reports pursuant to either of such Sections, then to
file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time
by the Commission, such of the supplementary and
periodic information, documents, and reports which may
be required pursuant to Section 13 of the Securities
Exchange Act of 1934, or in respect of a security
listed and registered on a national securities exchange
as may be prescribed from time to time in such rules
and regulations;
(b) to file with the Trustee and the Commission,
in accordance with rules and regulations prescribed
from time to time by the Commission, such additional
information, documents, and reports with respect to
compliance by the Issuer with the conditions and
covenants provided for in this Indenture as may be
required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of
Securities, in the manner and to the extent provided in
Section 4.4(c), such summaries of any information,
documents and reports required to be filed by the
Issuer pursuant to subsections (a) and (b) of this
Section as may be required to be transmitted to such
Holders by rules and regulations prescribed from time
to time by the Commission.
SECTION 4.4 Reports by the Trustee.
(a) Within 60 days after December 31 of each year
commencing with the year 1995, the Trustee shall
transmit by mail to the Holders of Securities, as
provided in Subsection (c) of this Section, a brief
report dated as of such December 31 with respect to:
(i) any change to its eligibility under
Section 6.9 and its qualification under
Section 6.8;
(ii) the creation of or any material
change to a relationship specified in
paragraphs (1) through (10) of Section 6.8(d);
(iii) the character and amount of any
advances (and if the Trustee elects so to
state, the circumstances surrounding the
making thereof) made by the Trustee (as such)
which remain unpaid on the date of such report
and for the reimbursement of which it claims
or may claim a lien or charge, prior to that
of the Securities of any series, on any
property or funds held or collected by it as
Trustee, except that the Trustee shall not be
required (but may elect) to report such
advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the
principal amount of the Securities of any
series Outstanding on the date of such report;
(iv) the amount, interest rate, and
maturity date of all other indebtedness owing
by the Issuer (or by any other obligor on the
Securities) to the Trustee in its individual
capacity on the date of such report, with a
brief description of any property held as
collateral security therefor, except any
indebtedness based upon a creditor
relationship arising in any manner described
in Section 6.13(b)(2), (3), (4) or (6);
(v) any change to the property and
funds, if any, physically in the possession of
the Trustee (as such) on the date of such
report;
(vi) any release, or release and
substitution, of property subject to the lien,
if any, of this Indenture (and the
consideration therefor, if any) which the
Trustee has not previously reported;
(vii) any additional issue of Securities
which the Trustee has not previously reported;
and
(viii) any action taken by the Trustee in
the performance of its duties under this
Indenture which it has not previously reported
and which in its opinion materially affects
the Securities, except action in respect of a
default, notice of which has been or is to be
withheld by it in accordance with the
provisions of Section 5.11.
(b) The Trustee shall transmit to the
Securityholders of each series, as provided in
subsection (c) of this Section, 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 (or if no such report has yet been
so transmitted, since the date of this Indenture) for
the reimbursement of which it claims or may claim a
lien or charge prior to that of the Securities of such
series on property or funds held or collected by it as
Trustee and which it has not previously reported
pursuant to this subsection (b), except that the
Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any
time aggregate 10% or less of the principal amount of
Securities of such series outstanding at such time,
such report to be transmitted within 90 days after such
time.
(c) Reports pursuant to this Section shall be
transmitted by mail:
(i) to all Holders of Registered
Securities, as the names and addresses of such
Holders appear upon the registry books of the
Issuer;
(ii) to such other Holders of Securities
as have, within 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), to each Holder of
a Security whose name and address are
preserved at the time by the Trustee as
provided in Section 4.2(a).
(d) A copy of each such report shall, at the time
of such transmission to Securityholders, be furnished
to the Issuer and be filed by the Trustee with each
stock exchange upon which the Securities of any
applicable series are listed and also with the
Commission. The Issuer agrees to notify the Trustee
with respect to any series when and as the Securities
of such series become admitted to trading on any
national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to
Securities of any series wherever used herein, means each one of
the following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body, except that any Securities, or any series of
Securities, may provide for Events of Default in lieu of and in
substitution of the Events of Default set forth herein:
(a) default in the payment of any instalment of interest
upon any of the Securities of such series as and when the same
shall become due and payable, and continuance of such default for
a period of 30 days; or
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon
redemption, by declaration or otherwise; or
(c) failure on the part of the Issuer duly to observe or
perform any other covenant or agreement on the part of the Issuer
in respect of the Securities of such series (other than a
covenant or warranty in respect of the Securities of such series
a default in the performance or breach of which is elsewhere in
this Section specifically dealt with) or contained in this
Indenture, and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of all series affected thereby, a written
notice specifying such failure or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(d) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Issuer or any
Consolidated Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or any subsidiary or for any substantial
part of its property or ordering the winding up or liquidation of
its affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(e) the Issuer or any Consolidated Subsidiary shall
commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer or
any Consolidated Subsidiary or for any substantial part of its
property, or make any general assignment for the benefit of
creditors; or
(f) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in
the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or (f)
(if the Event of Default under clause (c) or (f), as the case may
be, is with respect to less than all series of Securities then
Outstanding) occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Securities of
such series shall have already become due and payable, either the
Trustee or the Holders of not less than a majority in aggregate
principal amount of the Securities of each such affected series
then Outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or,
if the Securities of such affected series are Original Issue
Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all Securities of
such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same
shall become immediately due and payable, provided, however, that
payment of principal and interest, if any, on the Securities of
such series shall remain subordinated to the extent provided in
Article Thirteen. If an Event of Default described in clause
(c), (f) (if the Event of Default under clause (c) or (f), as the
case may be, is with respect to all series of Securities then
Outstanding), (d) or (e) occurs and is continuing, then and in
each and every such case, unless the principal of all the
Securities shall have already become due and payable, either the
Trustee or the Holders of not less than a majority in aggregate
principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and
to the Trustee if given by Security- holders), may declare the
entire principal (or, if any Securities are Original Issue
Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall
become immediately due and payable, provided, however, that
payment of principal and interest, if any, on the Securities of
such series shall remain subordinated to the extent provided in
Article Thirteen.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of the
Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the Issuer
shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities
of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all
the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such
principal) and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series (or at the respective
rates of interest or Yields to Maturity of all the Securities, as
the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to
the Trustee and each predecessor Trustee, its agents, attorneys
and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Trustee except as a result of
negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal
of Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein
-- then and in every such case the Holders of a majority in
aggregate principal amount of all the Securities of such series,
each series voting as a separate class, (or of all the
Securities, as the case may be, voting as a single class) then
Outstanding, by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to each such series (or with
respect to all the Securities, as the case may be) and rescind
and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall
affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of
the principal of any Original Issue Discount Securities shall
have been accelerated and declared due and payable pursuant to
the provisions hereof, then, from and after such declaration,
unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full
of such Original Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt. The Issuer covenants that (a) in case
default shall be made in the payment of any instalment of
interest on any of the Securities of any series when such
interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case
default shall be made in the payment of all or any part of the
principal of any of the Securities of any series when the same
shall have become due and payable, whether upon maturity of the
Securities of such series or upon any redemption or by
declaration or otherwise--then upon demand of the Trustee, the
Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall
have become due and payable on all Securities of such series, and
such Coupons, for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue principal
and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of its negligence or bad faith.
In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or
other obligor upon such Securities and collect in the manner
provided by law out of the property of the Issuer or other
obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to
the Issuer or any other obligor upon the Securities under Title
11 of the United States Code or any other applicable Federal or
state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon
the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of any
series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Securities of any
series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee
and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee, except as a result of negligence or bad
faith) and of the Security holders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the
Issuer or such other obligor,
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of the Securities
of any series in any election of a trustee or a standby trustee
in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions
in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any
trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee and
all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.6 except as a result of Trustee's
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Security holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
of any series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to
vote for the election of a trustee in bankruptcy or similar
person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or
Coupons appertaining to such Securities, may be enforced by the
Trustee without the possession of any of the Securities of such
series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of
the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities
or Coupons appertaining to such Securities in respect of which
such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the Holders of the Securities or
Coupons appertaining to such Securities in respect to which such
action was taken, and it shall not be necessary to make any
Holders of such Securities or Coupons appertaining to such
Securities parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of
any series shall, subject to the subordination provisions hereof,
be applied in the following order at the date or dates fixed by
the Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the
several Securities and Coupons appertaining to such Securities in
respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of
such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable
to such series in respect of which monies have been
collected, including reasonable compensation to the Trustee
and each predecessor Trustee and their respective agents and
attorneys and of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor
Trustee and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.6 except as a
result of Trustee's negligence or bad faith;
SECOND: In case the principal of the Securities of
such series in respect of which moneys have been collected
shall not have become and be then due and payable, to the
payment of interest on the Securities of such series in
default in the order of the maturity of the installments of
such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall
have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all
the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the
payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over
principal, or of any instalment of interest over any other
instalment of interest, or of any Security of such series
over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest
or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to
the Issuer or any other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights,
remedies and powers of the Issuer, the Trustee and the Security
holders shall continue as though no such proceedings had been
taken.
SECTION 5.6 Limitations on Suits by Securityholders.
No Holder of any Security of any series or of any Coupon
appertaining thereto shall have any right by virtue or by
availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or
other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than a majority
in aggregate principal amount of the Securities of such series
then Outstanding shall have made written request upon the Trustee
to institute such action or proceedings in its own name as
trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to
Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or
Coupon with every other taker and Holder and the Trustee, that no
one or more Holders of Securities of any series or Coupons
appertaining to such Securities shall have any right in any
manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other
such Holder of Securities or Coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under
this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of
the applicable series and Coupons appertaining to such
Securities. For the protection and enforcement of the provisions
of this Section, each and every Security holder and the Trustee
shall be entitled to such relief as can be given either at law or
in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in
this Indenture and any provision of any Security, the right of
any Holder of any Security or Coupon to receive payment of the
principal of and interest on such Security or Coupon on or after
the respective due dates expressed in such Security or Coupon, or
to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section
5.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or Coupons is intended to
be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power or shall be construed to be
a waiver of any such Event of Default or an acquiescence therein;
and, subject to Section 5.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Holders of
Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
Holders of Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The
Holders of a majority in aggregate principal amount of the
Securities of each series affected (with each series voting as a
separate class) at the time Outstanding shall have the right to
direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee with respect to the Securities
of such series by this Indenture; provided that such direction
shall not be otherwise than in accordance with law and the
provisions of this Indenture and provided further that (subject
to the provisions of Section 6.1) the Trustee shall have the
right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible
Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders
of the Securities of all series so affected not joining in the
giving of said direction, it being understood that (subject to
Section 6.1) the Trustee shall have no duty to ascertain whether
or not such actions or forbearances are unduly prejudicial to
such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction or
directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities of any series as
provided in Section 5.1, the Holders of a majority in aggregate
principal amount of the Securities of all series at the time
Outstanding with respect to which an Event of Default shall have
occurred and be continuing voting as a single class may on behalf
of the Holders of all the Securities of such series waive any
past default or Event of Default described in Section 5.1 and its
consequences, except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of
any such waiver, the Issuer, the Trustee and the Holders of all
such Securities shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist
and be deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have
been cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within
ninety days after the occurrence of a default with respect to the
Securities of any series, give notice of all defaults with
respect to that series known to the Trustee (i) if any
Unregistered Securities of that series are then Outstanding, to
the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and,
if required by Section 3.6, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of
such series in the manner and to the extent provided in Section
4.4(c), unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term
"defaults" for the purpose of this Section being hereby defined
to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided
that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series,
or in the payment of any sinking fund instalment on such series,
the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible
Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Security
holders of such series.
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree,
and each Holder of any Security or Coupon by his acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Security holder or group of Security
holders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or,
in the case of any suit relating to or arising under clause (c)
or (f) of Section 5.1 (if the suit relates to Securities of more
than one but less than all series), 10% in aggregate principal
amount of Securities then Outstanding and affected thereby, or in
the case of any suit relating to or arising under clause (c),
(f), (if the suit under clause (c) or (f) relates to all the
Securities then Outstanding), (d) or (e) of Section 5.1, 10% in
aggregate principal amount of all Securities then Outstanding, or
to any suit instituted by any Security holder for the enforcement
of the payment of the principal of or interest on any Security on
or after the due date expressed in such Security or any date
fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of
any series of Securities issued hereunder, the Trustee, prior to
the occurrence of an Event of Default with respect to the
Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to
such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case
an Event of Default with respect to the Securities of a series
has occurred (which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
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 wilful misconduct,
except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing
or waiving of all such Events of Default with respect to
such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as
are not specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) 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 therein, upon any statements,
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but
in the case of any such statements, certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders pursuant to
Section 5.9 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.
None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if there shall be reasonable ground
for believing that the repayment of such funds or adequate
indemnity against such liability is not reasonably assured
to it.
SECTION 6.2 Certain Rights Of the Trustee. Subject to
Section 6.1:
(a) the Trustee may rely and shall be protected
in acting or refraining from acting upon any
resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note,
coupon, security or other paper or document believed by
it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the
Issuer mentioned herein shall be sufficiently evidenced by
an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the
Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any
written advice or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Indenture at the request, order or direction of any of the
Security holders pursuant to the provisions of this
Indenture, unless such Security holders shall have offered
to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected
then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable
expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys not regularly in its
employ and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee
makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons. The Trustee shall not
be accountable for the use or application by the Issuer of any of
the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee or any agent of the
Issuer or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities or Coupons with the
same rights it would have if it were not the Trustee or such
agent and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Issuer and receive, collect, hold and retain collections
from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee, Subject to the
provisions of Section 10.4 hereof, all moneys received by the
Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need
not be segregated from other funds except to the extent required
by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability
for interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee
and Its Prior Claim. The Issuer 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) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel
and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to
hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder,
including the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The
obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall
be a senior claim to that of the Securities 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 Securities
or Coupons, and the Securities are hereby subordinated to such
senior claim.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.2 (d)
and (e), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services
are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency,
reorganization, or similar law.
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in
the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the
Trustee, 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.
SECTION 6.8 Qualification of Trustee; Conflicting
Interests. (a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section, with respect to
the Securities of any series, then, within 90 days after
ascertaining that it has such conflicting interest and if the
default (as provided in subsection (d)) to which such conflicting
interest relates has not been cured or duly waived or otherwise
eliminated before the end of such 90 day period, the Trustee
shall either eliminate such conflicting interest or, except as
otherwise provided below in this Section, resign with respect to
the Securities of that series in the manner and with the effect
hereinafter specified in this Article and the Issuer shall take
prompt steps to have a successor appointed in the manner provided
herein.
(b) In the event that the Trustee shall fail to comply
with the provisions of subsection (a) of this Section with
respect to the Securities of any series, the Trustee shall,
within 10 days after the expiration of such 90 day period,
transmit notice of such failure by mail to all Holders of
Securities of that series entitled to receive reports pursuant to
Section 4.4(c) and, if Unregistered Securities of that series are
outstanding, shall cause notice of such failure to be published
at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an
Authorized Newspaper in London (and, if required by Section 3.6,
at least once in an Authorized Newspaper in Luxembourg).
(c) Subject to Section 5.12, unless the Trustee's duty
to resign is stayed, as provided below in this Section, any
Holder of Securities of that series who has been a bona fide
Holder of Securities of any series referred to in subsection (a)
of this Section for at least six months may, on behalf of himself
and all other Holders of Securities of that series similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee, and the appointment of a successor, if
the Trustee fails, after written request by such Holder to comply
with the provisions of subsection (a) of this Section.
(d) For the purposes of this Section, the Trustee
shall be deemed to have a conflicting interest with respect to
Securities of any series if the Securities of such series are in
default (exclusive of any period of grace or requirement of
notice) as provided in Section 5.1 and
(1) the Trustee is trustee under this Indenture
with respect to the Outstanding Securities of any
series other than that series or is trustee under
another indenture under which any other securities, or
certificates of interest or participation in any other
securities, of the Issuer are outstanding, unless such
other indenture is a collateral trust indenture under
which the only collateral consists of Securities issued
under this Indenture; provided that there shall be
excluded from the operation of this paragraph this
Indenture with respect to the Securities of any series
other than that series and any indenture or indentures
under which other securities, or certificates of
interest or participation in other securities, of the
Issuer are outstanding if (i) this Indenture and such
other indenture or indentures (and all series of
Securities issuable thereunder) are wholly unsecured
and rank equally, and such other indenture or
indentures (and such series) are hereafter qualified
under the Trust Indenture Act of 1939, unless the
Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the
Trust Indenture Act of 1939 that differences exist
between the provisions of this Indenture with respect
to Securities of that series and one or more other
series, or the provisions of such other indenture or
indentures (or such series) which are so likely to
involve a material conflict of interest as to make it
necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as
such under this Indenture with respect to the
Securities of that series and such other series, or
under such other indenture or indentures, or (ii) the
Issuer shall have sustained the burden of proving, on
application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture
with respect to Securities of that series and such
other series or such other indenture or indentures is
not so likely to involve a material conflict of
interest as to make it necessary in the public interest
or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with
respect to the Securities of that series and such other
series or under such other indenture or indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Issuer;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with an underwriter for the Issuer;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee,
appointee, or representative of the Issuer, or of an
underwriter (other than the Trustee itself) for the Issuer
who is currently engaged in the business of underwriting,
except that (i) one individual may be a director or an
executive officer, or both, of the Trustee and a director or
an executive officer, or both, of the Issuer, but may not be
at the same time an executive officer of both the Trustee
and the Issuer; (ii) if and so long as the number of
directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the
Issuer; and (iii) the Trustee may be designated by the
Issuer or by any underwriter for the Issuer to act in the
capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent, escrow agent, or depositary, or in any
other similar capacity, or, subject to the provisions of
paragraph (1) of this subsection, to act as trustee, whether
under an indenture or otherwise;
(5) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Issuer or by any
director, partner or executive officer thereof, or 20% or
more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10% or
more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Issuer or by any
director, partner, or executive officer thereof, or is
beneficially owned, collectively, by any two or more such
persons;
(6) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this subsection defined), (i) 5% or more
of the voting securities or 10% or more of any other class
of security of the Issuer, not including the Securities
issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or
(ii) 10% or more of any class of security of an underwriter
for the Issuer;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default
(as hereinafter in this subsection defined), 5% or more of
the voting securities of any person who, to the knowledge of
the Trustee, owns 10% or more of the voting securities of,
or controls directly or indirectly or is under direct or
indirect common control with, the Issuer;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default
(as hereinafter in this subsection defined), 10% or more of
any class of security of any person who, to the knowledge of
the Trustee, owns 50% or more of the voting securities of
the Issuer; or
(9) the Trustee owns, on the date of default upon the
Securities of such series (exclusive of any period of grace
or requirement of notice) as provided in Section 5.1 or any
anniversary of such default while such default remains
outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate
of 25% or more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this
subsection. As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator,
or testamentary trustee of an estate which included them,
the provisions of the preceding sentence shall not apply,
for a period of not more than two years from the date of
such acquisition, to the extent that such securities
included in such estate do not exceed 25% of such voting
securities or 25% of any such class of security. Promptly
after the dates of any such default and annually in each
succeeding year that the Securities of that series remain in
default, the Trustee shall make a check of its holdings of
such securities in any of the above-mentioned capacities as
of such dates. If the Issuer fails to make payment in full
of principal or interest on any of the Securities when and
as the same becomes due and payable, and such failure
continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of
the above-mentioned capacities as of the date of the
expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph,
all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall, but
only so long as such failure shall continue, be considered
as though beneficially owned by the Trustee for the purposes
of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of subsection (b) of
Section 6.13, the Trustee shall be or shall become a
creditor of the Issuer.
For the purposes of paragraph (1) of this subsection,
and of Sections 5.9 and 7.4, the term "series of securities" or
"series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such
series may vote to direct the indenture trustee, or otherwise
take action pursuant to a vote of such holders separately from
holders of another such series; provided, that "series of
securities" or "series" shall not include any series of
securities issuable under an indenture if all such series rank
equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to
(9), inclusive, of this subsection shall not be construed as
indicating that the ownership of such percentages of the
securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9)
of this subsection, only,
(i) the terms "security" and "securities" shall include
only such securities as are generally known as corporate
securities, but shall not include any note or other evidence
of indebtedness issued to evidence an obligation to repay
moneys lent to a person by one or more banks, trust
companies, or banking firms, or any certificate of interest
or participation in any such note or evidence of
indebtedness;
(ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued
for 30 days or more and shall not have been cured; and
(iii) the Trustee shall not be deemed to be the owner
or holder of (x) any security which it holds as collateral
security, as trustee or otherwise, for an obligation which
is not in default as defined in clause (ii) above, or (y)
any security which it holds as collateral security under
this Indenture, irrespective of any default hereunder, or
(z) any security which it holds as agent for collection, or
as custodian, escrow agent, or depositary, or in any similar
representative capacity.
(e) For purposes of this Section:
(1) the term "underwriter" when used with reference to
the Issuer means every person who, within one year prior to
the time as of which the determination is made, has
purchased from the Issuer with a view to, or has offered or
sold for the Issuer in connection with, the distribution of
any security of the Issuer outstanding at such time, or has
participated or has had a direct or indirect participation
in any such undertaking, or has participated or has had a
participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a person
whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission;
(2) the term "director" shall mean any director of a
corporation or any individual performing similar functions
with respect to any organization whether incorporated or
unincorporated;
(3) the term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization, or a
government or political subdivision thereof. As used in
this paragraph, the term "trust" shall include only a trust
where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security;
(4) the term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in
the direction or management of the affairs of a person, or
any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or
agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of
the affairs of a person;
(5) the term "Issuer" shall mean any obligor upon the
Securities; and
(6) the term "executive officer" shall mean the
president, every vice president, every trust officer, the
cashier, the secretary, and the treasurer of a corporation,
and any individual customarily performing similar functions
with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the
board of directors.
(f) The percentages of voting securities and other
securities specified in this Section shall be calculated in
accordance with the following provisions:
(1) a specified percentage of the voting securities of
the Trustee, the Issuer or any other person referred to in
this Section (each of whom is referred to as a "person" in
this paragraph) means such amount of the outstanding voting
securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting
securities of such person are entitled to cast in the
direction or management of the affairs of such person;
(2) a specified percentage of a class of securities of
a person means such percentage of the aggregate amount of
securities of the class outstanding;
(3) the term "amount", when used in regard to
securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if relating
to capital shares, and the number of units if relating to
any other kind of security;
(4) the term "outstanding" means issued and not held
by or for the account of the issuer. The following
securities shall not be deemed outstanding within the
meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking
fund relating to another class of securities of the
issuer, if the obligation evidenced by such other class
of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in
default as to principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer shall
be deemed outstanding if any person other than the issuer is
entitled to exercise the voting rights thereof; and
(5) a security shall be deemed to be of the same class
as another security if both securities confer upon the
holder or holders thereof substantially the same rights and
privileges; provided, however, that, in the case of secured
evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes and
provided, further, that, in the case of unsecured evidences
of indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or
not they are issued under a single indenture.
(g) Except in the case of a default in the payment of
the principal or interest on the Securities of any series, or in
the payment of any sinking or purchase fund installment, the
Trustee shall not be required to resign as provided in this
Section if the Trustee has sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that
(1) the default under this Indenture may be cured or
waived during a reasonable period and under the procedures
described in such application, and
(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of the Holders of Securities
of the series.
The filing of such an application will automatically stay
the performance of the duty to resign until the Commission orders
otherwise.
(h) The resignation of the Trustee shall become
effective only upon the appointment of a successor trustee and
the acceptance by the successor trustee of such appointment.
(i) If Section 310(b) of the Trust Indenture Act is
amended at any time after the date of this Indenture to change
the circumstances under which a Trustee shall be deemed to have a
conflicting interest with respect to the Securities of any series
or to change any of the definitions in connection therewith, this
Section 6.8 shall be automatically amended to incorporate such
changes, unless such changes would cause any Trustee then acting
as Trustee hereunder with respect to any Outstanding Securities
to be deemed to have a conflicting interest, in which case such
changes shall be incorporated herein only to the extent that such
changes (i) would not cause the Trustee to be deemed to have a
conflicting interest or (ii) are required by law.
SECTION 6.9 Persons Eligible for Appointment as Trustee.
The Trustee for each series of Securities hereunder shall at all
times be a corporation organized and doing business under the
laws of the United States of America or of any State or the
District of Columbia or the laws of a foreign country to the
extent permitted under the Trust Indenture Act having a combined
capital and surplus of at least $25,000,000, and which is
authorized under such laws to exercise corporate trust powers and
is subject to supervision or examination by Federal, State or
District of Columbia authority, provided that, neither the
Company nor any person directly or indirectly controlling,
controlled by, or under common control with the Company shall
serve as Trustee of any Security. If such corporation is a
corporation organized under the laws of a foreign country, then
such corporation shall have its principal place of business in
The City of New York. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
with the effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to one
or more or all series of Securities by giving written notice of
resignation to the Issuer and (i) if any Unregistered Securities
of a series affected are then Outstanding, by giving notice of
such resignation to the Holders thereof, by publication at least
once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.6, at least once in an
Authorized Newspaper in Luxembourg), (ii) if any Unregistered
Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section
4.4(c)(ii) at such addresses as were so furnished to the Trustee
and (iii) by mailing notice of such resignation to the Holders of
then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books. Upon
receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall
have been so appointed with respect to any series and have
accepted appointment within 30 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 Securityholder who has been a bona fide
Holder of a Security or Securities of the applicable series for
at least six months may, subject to the provisions of Section
5.12, 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:
(i) the Trustee shall fail to comply with the
provisions of Section 6.8 with respect to any series of
Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six
months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 and shall fail
to resign after written request therefor by the Issuer or by
any Securityholder; or
(iii) the Trustee shall become incapable of acting
with respect to any series of Securities, or shall be
adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for such series by written instrument, in
duplicate, executed by order of the Board of Directors of the
Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.12, any Securityholder who
has been a bona fide Holder of a Security or 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 and the appointment
of a successor trustee with respect to such series. Such court
may thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount
of the Securities of each series at the time outstanding may at
any time remove the Trustee with respect to Securities of such
series and appoint a successor trustee with respect to the
Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 7.1 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect
to any series and any appointment of a successor trustee with
respect to such series pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in Section
6.10 shall execute and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series
shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the
successor trustee, upon payment of its charges then unpaid, the
trustee ceasing to act shall, subject to Section 10.4, pay over
to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the
predecessor Trustee and each successor trustee with respect to
the Securities of any applicable series shall execute and deliver
an indenture supplemental hereto which 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 Securities of any series as to which
the predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and 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 under separate
indentures.
No successor trustee with respect to any series of
Securities shall accept appointment as provided in this Section
6.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 6.8 and
eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee
as provided in this Section 6.11, the Issuer shall give notice
thereof (a) if any Unregistered Securities of a series affected
are then Outstanding, to the Holders thereof, by publication of
such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section
3.6, at least once in an Authorized Newspaper in Luxembourg), (b)
if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 4.4(c)(ii), by
mailing such notice to such Holders at such addresses as were so
furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (c) to
the Holders of Registered Securities of each series affected, by
mailing such notice to such Holders at their addresses as they
shall appear on the registry books. If the acceptance of
appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence
may be combined with the notice called for by Section 6.10. If
the Issuer fails to give such notice within ten days after
acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the
Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee. Any corporation into which
the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified
under the provisions of Section 6.8 and eligible under the
provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Securities of any series shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that
time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right
to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities of any series in the name
of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against
the Issuer. (a) Subject to the provisions of this Section, if
the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Issuer within three
months prior to a default, as defined in subsection (c) of this
Section, or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold
in a special account for the benefit of the Trustee individually,
the Holders of the Securities and the holders of other indenture
securities (as defined in this Section):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three months' period and valid as against
the Issuer and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in subsection (a)(2) of this Section, or
from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been
filed by or against the Issuer upon the date of such
default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such three months' period, or an amount
equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Issuer and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the
right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Issuer) who is liable thereon, (ii) the proceeds of the bona
fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the Issuer
in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States
Code or applicable state law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such three months'
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three months' period and
such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default as defined in subsection (c) of
this Section would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in such
paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D),
property substituted after the beginning of such three months'
period for property held as security at the time of such
substitution shall, to the extent of the fair value of the
property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for
the purpose of repaying or refunding any pre-existing claim of
the Trustee as such creditor, such claim shall have the same
status as such pre-existing claim.
If the Trustee shall be required to account, the funds
and property held in such special account and the proceeds
thereof shall be apportioned between the Trustee, the
Securityholders and the Holders of other indenture securities in
such manner that the Trustee, such Securityholders and the
Holders of other indenture securities realize, as a result of
payments from such special account and payments of dividends on
claims filed against the Issuer in bankruptcy or receivership or
in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, the same percentage
of their respective claims, figured before crediting to the claim
of the Trustee anything on account of the receipt by it from the
Issuer of the funds and property in such special account and
before crediting to the respective claims of the Trustee, such
Securityholders and the Holders of other indenture securities
dividends on claims filed against the Issuer in bankruptcy or
receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, but
after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other
than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect
to any claim, the term "dividends" shall include any distribution
with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include
any such distribution with respect to the secured portion, if
any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall
have jurisdiction (i) to apportion between the Trustee, such
Securityholders and the Holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and
property held in such special account and the proceeds thereof,
or (ii) in lieu of such apportionment, in whole or in part, to
give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the
Trustee, such Securityholders and the Holders of other indenture
securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the
value of any securities or other property held in such special
account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to the
provisions of this subsection (a) as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and
only if the following conditions exist:
(i) the receipt of property or reduction of claim
which would have given rise to the obligation to account, if
such Trustee had continued as trustee, occurred after the
beginning of such three months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of this
Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued
under any indenture or any security or securities having a
maturity of one year or more at the time of acquisition by
the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture
or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in
this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented or an indebtedness created as a
result of goods or securities sold in a cash transaction as
defined in subsection (c)(3) below;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of self-
liquidating paper as defined in subsection (c)(4) of this
Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest upon any of
the Securities or upon the other indenture securities when
and as such principal or interest becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Issuer is an obligor (as defined
in the Trust Indenture Act of 1939) outstanding under any
other indenture (i) under which the Trustee is also trustee,
(ii) which contains provisions substantially similar to the
provisions of subsection (a) of this Section, and (iii)
under which a default exists at the time of the
apportionment of the funds and property held in said special
account;
(3) 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;
(4) the term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Issuer for the
purpose of financing the purchase, processing, manufacture,
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 Issuer arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon the
Securities.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage
of Securityholders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of
Holding of Securities. Subject to Sections 6.1 and 6.2, the
execution of any instrument by a Securityholder or his agent or
proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of
any instrument may be proved by the certificate of any
notary public or other officer of any jurisdiction
authorized to take acknowledgments of deeds or administer
oaths that the person executing such instruments
acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also
constitute sufficient proof of the authority of the person
executing the same. The fact of the holding by any Holder
of an Unregistered Security of any series, and the
identifying number of such Security and the date of his
holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company,
bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate
shall be deemed by the Trustee to be satisfactory. Each
such certificate shall be dated and shall state that on the
date thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer
by the person named in such certificate. Any such
certificate may be issued in respect of one or more
Unregistered Securities of one or more series specified
therein. The holding by the person named in any such
certificate of any Unregistered Securities of any series
specified therein shall be presumed to continue for a period
of one year from the date of such certificate unless at the
time of any determination of such holding (1) another
certificate bearing a later date issued in respect of the
same Securities shall be produced, or (2) the Security of
such series specified in such certificate shall be produced
by some other person, or (3) the Security of such series
specified in such certificate shall have ceased to be
Outstanding. Subject to Sections 6.1 and 6.2, the fact and
date of the execution of any such instrument and the amount
and numbers of Securities of any series held by the person
so executing such instrument and the amount and numbers of
any Security or Securities for such series may also be
proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such
series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership
of such Securities shall be proved by the Security register
or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem
and treat the person in whose name any Security shall be
registered upon the Security register for such series as the
absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or
on account of the principal of and, subject to the provisions of
this Indenture, interest on such Security and for all other
purposes; and neither the Issuer nor the Trustee nor any agent of
the Issuer or the Trustee shall be affected by any notice to the
contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and
the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes
and neither the Issuer, the Trustee, nor any agent of the Issuer
or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys
payable upon any such Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of any or
all series have concurred in any direction, consent or waiver
under this Indenture, Securities which are owned by the Issuer or
any other obligor on the Securities with respect to which such
determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities
which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Issuer
or any other obligor upon the Securities or any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice.
Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held
by or for the account of any of the above-described persons; and,
subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At
any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 7.1, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is
made upon any such Security. Any action taken by the Holders of
the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of
its Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the
date of the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more
series any property or assets;
(b) to evidence the succession of another corporation
to the Issuer, or successive successions, and the assumption
by the successor corporation of the covenants, agreements
and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the
Issuer and the Trustee shall consider to be for the
protection of the Holders of Securities or Coupons, and to
make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided
in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may
provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority
in aggregate principal amount of the Securities of such
series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may
deem necessary or desirable, provided that no such action
shall adversely affect the interests of the Holders of the
Securities or Coupons;
(e) to establish the form of terms or Securities of
any series or of the Coupons appertaining to such Securities
as permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to
the requirements of Section 6.11.
The Trustee is hereby authorized to join with the
Issuer in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions
of this Section may be executed without the consent of the
Holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article Seven) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a
resolution of its Board of Directors (which resolution may
provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the
Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force
at the date of execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the Holders of the
Securities of each such series or of the Coupons appertaining to
such Securities; provided, that no such supplemental indenture
shall (a) extend the final maturity of any Security, or reduce
the principal amount thereof, or reduce the rate or extend the
time of payment of interest thereon, or reduce any amount payable
on redemption thereof, or make the principal thereof (including
any amount in respect of original issue discount), or interest
thereon payable in any coin or currency other than that provided
in the Securities and Coupons or in accordance with the terms
thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.1 or
the amount thereof provable in bankruptcy pursuant to Section
5.2, or alter the provisions of Section 11.11 or 11.12 or impair
or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any
right of repayment at the option of the Securityholder, or modify
the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the
Holders, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of
Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent
of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of
Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy
of a resolution of the Board of Directors (which resolution may
provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order) certified by
the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee shall join with the Issuer
in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Trustee shall give notice thereof (i) to the
Holders of then Outstanding Registered Securities of each series
affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders
thereof who have filed their names and addresses with the Trustee
pursuant to Section 4.4(c)(ii), by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so
furnished to the Trustee and (iii) if any Unregistered Securities
of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and,
if required by Section 3.6, at least once in an, Authorized
Newspaper in Luxembourg), and in each case such notice shall set
forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to give such notice, or any
defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article 8 complies with the applicable
provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures. Securities of any series authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in
form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
SECTION 8.6 Subordination Unimpaired. This Indenture
may not be amended to alter the subordination of any of the
Outstanding Securities without the written consent of each holder
of Senior Indebtedness then outstanding that would be adversely
affected thereby.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., on Certain
Terms. The Issuer covenants that it will not merge or
consolidate with any other person or sell or convey (including by
way of lease) all or substantially all of its assets to any
Person, unless (i) either the Issuer shall be the continuing
corporation, or the successor corporation or the Person which
acquires by sale or conveyance substantially all the assets of
the Issuer (if other than the Issuer) shall be a corporation
organized under the laws of the United States or any state
thereof and expressly assumes the due and punctual payment of the
principal of and interest on all the Securities and Coupons,
according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Issuer, by
supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation or entity, and (ii)
the Issuer, such person or such successor corporation or entity,
as the case may be, shall not, immediately after such merger or
consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition.
SECTION 9.2 Successor Issuer Substituted. In case of
any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the
Issuer, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which,
together with any Coupons appertaining thereto, theretofore shall
not have been signed by the Issuer and delivered to the Trustee;
and, upon the order of such successor corporation instead of the
Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities, together with any Coupons
appertaining thereto, which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities, together with any Coupons
appertaining thereto, which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued, together with any
Coupons appertaining thereto, shall in all respects have the same
legal rank and benefit under this Indenture as the Securities and
Coupons theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities and
Coupons had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease
or conveyance such changes in phraseology and form (but not in
substance) may be made in the Securities and Coupons thereafter
to be issued as may be appropriate.
In the event of any such sale or conveyance (other than
a conveyance by way of lease) the Issuer or any successor
corporation which shall theretofore have become such in the
manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities
and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel Delivered to Trustee.
The Trustee, subject to the provisions of Sections 6.1 and 6.2,
may receive an Opinion of Counsel, prepared in accordance with
Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies
with the applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Issuer shall have paid or caused to be
paid the principal of and interest on all the Securities of any
series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee
for cancellation all Securities of any series theretofore
authenticated and all unmatured Coupons appertaining thereto
(other than any Securities of such series and Coupons
appertaining thereto which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in
Section 2.9) or (c) in the case of any series of Securities where
the exact amount (including the currency of payment) of principal
of and interest due on such Securities can be determined at the
time of making the deposit referred to in clause (ii) below, (i)
all the Securities of such series and all unmatured Coupons
appertaining thereto not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Issuer shall have irrevocably deposited
or caused to be deposited with the Trustee as trust funds the
entire amount in cash (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4)
or, in the case of any series of Securities the payments on which
may only be made in Dollars, direct obligations of the United
States of America, backed by its full faith and credit ("U.S.
Government Obligations"), maturing as to principal and interest
in such amounts and at such times as will insure the availability
of cash, or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Securities
of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series, and if, in any such
case, the Issuer shall also pay or cause to be paid all other
sums payable hereunder by the Issuer with respect to Securities
of such series, then this Indenture shall cease to be of further
effect with respect to Securities of such series (except as to
(i) rights of registration of transfer and exchange of Securities
of such series, and of Coupons appertaining thereto, and the
Issuer's right of optional redemption, if any, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities or
Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and
interest thereon, upon the original stated due dates therefor
(but not upon acceleration) and remaining rights of the Holders
to receive mandatory sinking fund payments, if any, (iv) the
rights (including the Trustee's rights under Section 10.5),
obligations and immunities of the Trustee hereunder, (v) the
rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Section 3.2)
and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel which complies
with Section 11.5 and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging such satisfaction
of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities and
Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be
delayed longer than required by then-applicable mandatory rules
or policies of any securities exchange upon which the Securities
are listed. The Issuer agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and
to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided
in a Board Resolution, Officers' Certificate or indenture
supplemental hereto provided pursuant to Section 2.3. In
addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the
exact amounts (including the currency of payment) of principal of
and interest subsequently due on which can be determined at the
time of making the deposit referred to in clause (a) below, the
Issuer shall be deemed to have paid and discharged the entire
Indebtedness on all the Securities of such a series and the
Coupons appertaining thereto on the 121st day after the date of
the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Securities of
such series and Coupons appertaining thereto shall no longer be
in effect (except as to (i) rights of registration of transfer
and exchange of Securities of such series, and of Coupons
appertaining thereto, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of
Holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration)
and remaining rights of the Holders to receive sinking fund
payments, if any, (iv) the rights (including the Trustee's rights
under Section 10.5), obligations and immunities of the Trustee
hereunder, (v) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof
with respect to the property so deposited with the Trustee
payable to all or any of them and (vi) the obligations of the
Issuer under Section 3.2) and the Trustee, at the expense of the
Issuer, shall at the Issuer's request, execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series and
Coupons appertaining thereto (i) cash in an amount, or (ii)
in the case of any series of Securities the payments on
which may only be made in Dollars, U.S. Government
Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal
and interest on all Securities of such series and Coupons
appertaining thereto on the date that such principal or
interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture
and the Securities of such series;
(b) such deposit will not result in a breach or
violation of, or constitute a default under, any agreement
or instrument to which the Issuer is a party or by which it
is bound;
(c) the Issuer has delivered to the Trustee an
Officers' Certificate or an opinion of independent legal
counsel satisfactory to the Trustee to the effect that
Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred;
(d) the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating
to the defeasance contemplated by this provision have been
complied with, and the Opinion of Counsel shall also state
that such deposit does not violate applicable law;
(e) no event or condition shall exist that, pursuant
to the provisions of Section 13.1, would prevent the Issuer
from making payments of the principal of or interest on the
Securities of such series and Coupons appertaining thereto
on the date of such deposit or at any time during the period
ending on the 121st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period); and
(f) the Issuer has delivered to the Trustee an Opinion
of Counsel to the effect that (x) the trust funds will not
be subject to any right of holders of Senior Indebtedness,
including without limitation those arising under Article
Thirteen of this Indenture, and (y) after the 121st day
following the deposit (assuming that the Holders are not
"insiders" of the Issuer, as such term is defined in 11
U.S.C. 101(30) and applicable case law interpreting same),
the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally, except that if a
court were to rule under any such law in any case or
proceeding that the trust funds remained property of the
Issuer, no opinion is given as to the effect of such laws on
the trust funds except the following: (A) assuming such
trust funds remained in the Trustee's possession prior to
such court ruling to the extent not paid to Holders of
Securities of such series and Coupons appertaining thereto,
the Trustee will hold, for the benefit of such Holders, a
valid and perfected security interest in such trust funds
that is not avoidable in bankruptcy or otherwise, (B) such
Holders will be entitled to receive adequate protection of
their interests in such trust funds if such trust funds are
used, and (C) no property, rights in property or other
interests granted to the Trustee or such Holders in exchange
for or with respect to any of such funds will be subject to
any prior rights of holders of Senior Indebtedness,
including without limitation those arising under Article
Thirteen of this Indenture.
SECTION 10.2 Application by Trustee of Funds Deposited
for Payment of Securities. Subject to Section 10.4, all moneys
deposited with the Trustee (or other trustee) pursuant to Section
10.1 shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture with respect to Securities of any series, all moneys
then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon
demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years. Any moneys deposited with
or paid to the Trustee or any paying agent for the payment of the
principal of or interest on any Security of any series or Coupons
attached thereto and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall
have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such
paying agent, and the Holder of the Securities of such series and
of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; provided,
however, that the Trustee or such paying agent, before being
required to make any such repayment with respect to moneys
deposited with it for any payment (a) in respect of Registered
Securities of any series, shall at the expense of the Issuer,
mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b)
in respect of Unregistered Securities of any series, shall at the
expense of the Issuer cause to be published once, in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and once in an Authorized Newspaper in London (and if
required by Section 3.6, once in an Authorized Newspaper in
Luxembourg), notice, that such moneys remain and that, after a
date specified therein, which shall not be less than thirty days
from the date of such mailing or publication, any unclaimed
balance of such money then remaining will be repaid to the
Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations.
The Issuer shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 10.1 or the
principal or interest received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of
any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or
Trustee or of any successor of either of them, either directly or
through the Issuer or Trustee or any successor of either of them,
under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part
of the consideration for the issue of the Securities and the
Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of Securities and Coupons.
Nothing in this Indenture, in the Securities or in the Coupons
appertaining thereto, expressed or implied, shall give or be
construed to give to any person, firm or corporation, other than
the parties hereto and their successors, the holders of Senior
Indebtedness and the Holders of the Securities or Coupons, if
any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained,
all such covenants and provisions being for the sole benefit of
the parties hereto and their successors, the holders of Senior
Indebtedness and the Holders of the Securities or Coupons, if
any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or in behalf of the
Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. Any notice or demand which by
any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Holders of Securities or
Coupons to or on the Issuer may be given or served by being
deposited postage prepaid, first class mail (except as otherwise
specifically provided herein) addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to ConAgra,
Inc., One ConAgra Drive, Omaha, Nebraska 68102, Attention: Vice
President-Finance. Any notice, direction, request or demand by
the Issuer or any Holder of Securities or Coupons to or upon the
Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made at First Trust National
Association, 180 East 5th Street, St. Paul Minnesota 55101, Attn:
Corporate Trust (until another address of the Trustee is given by
notice to the Issuer and Holders of Securities or Coupons).
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security
register. In any case where notice to such Holders is given by
mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such
notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable
to mail notice to the Issuer when such notice is required to be
given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.5 Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein. Upon any
application or demand by the Issuer to the Trustee to take any
action under any of the provisions of this Indenture, the Issuer
shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need
be furnished.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture shall
include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with and (d) a statement as to whether or not,
in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of
the Issuer may be based, insofar as it relates to legal matters,
upon a certificate or opinion of or representations by counsel,
unless such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters,
information with respect to which is in the possession of the
Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of
the Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Issuer, unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm of
public accountants filed with and directed to the Trustee shall
contain a statement that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal of
the Securities of any series or any Coupons appertaining thereto
or the date fixed for redemption or repayment of any such
Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and
effect as if made on the date of maturity or the date fixed for
redemption, and no interest shall accrue for the period after
such date.
SECTION 11.7 Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required to
be included herein by any of Sections 310 to 317, inclusive, of
the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 11.8 New York Law to Govern. This Indenture
and each Security and Coupon shall be deemed to be a contract
under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of such State,
except as may otherwise be required by mandatory provisions of
law.
SECTION 11.9 Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one
and the same instrument.
SECTION 11.10 Effect of Headings. The Article and
Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in
ECU. Unless otherwise specified in an Officer's Certificate
delivered pursuant to Section 2.3 of this Indenture with respect
to a particular series of Securities, whenever for purposes of
this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities
of all series or all series affected by a particular action at
the time Outstanding and, at such time, there are Outstanding
Securities of any series which are denominated in a coin or
currency other than Dollars (including ECUs), then the principal
amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the
Market Exchange Rate. For purposes of this Section 11.11, Market
Exchange Rate shall mean the noon Dollar buying rate for that
currency for cable transfers quoted in The City of New York as
certified for customs purposes by the Federal Reserve Bank of New
York; provided, however, in the case of ECUs, Market Exchange
Rate shall mean the rate of exchange determined by the Commission
of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities
(such publication or any successor publication, the "Journal").
If such Market Exchange Rate is not available for any reason with
respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York or, in the case of ECUs, the
rate of exchange as published in the Journal, as of the most
recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New
York or in the country of issue of the currency in question,
which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the
Trustee shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other
than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee
regarding the Market Exchange Rate or any alternative
determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon the
Issuer and all Holders.
SECTION 11.12. Judgment Currency. The Issuer agrees,
to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due in respect of
the principal of or interest on the Securities of any series (the
"Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York
Banking Day preceding that on which final unappealable judgment
is given and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall short
of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For
purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to
close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions
of this Article shall be applicable to the Securities of any
series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except
as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Election to Redeem; Notice of Redemption;
Partial Redemptions. The election of the Issuer to redeem any
Securities shall be evidenced by, or pursuant to, a Board
Resolution which shall identify the Securities to be redeemed.
In the case of any redemption at the election of the Issuer of
the Securities of any series with the same issue date, interest
rate and stated maturity, the Issuer shall, at least 60 days
prior to the redemption date fixed by the Issuer (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee of the principal amount of securities of such series to
be redeemed. Notice of redemption to the Holders of Registered
Securities of any series to be redeemed as a whole or in part at
the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Notice
of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 4.4(c)(ii), shall
be given by mailing notice of such redemption, by first class
mail, postage prepaid, at least thirty days and not more than
sixty prior to the date fixed for redemption, to such Holders at
such addresses as were so furnished to the Trustee (and, in the
case of any such notice given by the Issuer, the Trustee shall
make such information available to the Issuer for such purpose).
Notice of redemption to all other Holders of Unregistered
Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and in an Authorized
Newspaper in London (and, if required by Section 3.6, in an
Authorized Newspaper in Luxembourg), in each case, once in each
of three successive calendar weeks, the first publication to be
not less than thirty nor more than sixty days prior to the date
fixed for redemption. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of
any Security of a series designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall
specify the principal amount of each Security of such series held
by such Holder to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities
and, in the case of Securities with Coupons attached thereto, of
all Coupons appertaining thereto maturing after the date fixed
for redemption, that such redemption is pursuant to the mandatory
or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in
part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to
be redeemed at the option of the Issuer shall be given by the
Issuer or, at the Issuer's request, by the Trustee in the name
and at the expense of the Issuer.
On or before the redemption date specified in the
notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more paying
agents (or, if the Issuer is acting as its own paying agent, set
aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the
appropriate redemption price, together with accrued interest to
the date fixed for redemption. If less than all the Outstanding
Securities of a series are to be redeemed at the election of the
Issuer, the Issuer will deliver to the Trustee at least 60 days
prior to the date fixed for redemption (unless a shorter Notice
shall be satisfactory to the Trustee) an Officers' Certificate
stating the aggregate principal amount of Securities to be
redeemed. In case of a redemption at the election of the Issuer
prior to the expiration of any restriction on such redemption,
the Issuer shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this Section, an
Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of any series with the
same issue date, interest rate and stated maturity are to be
redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair (which may provide for the selection
for redemption of portions of the principal amount of Registered
Securities of such series), the particular Securities of such
series to be redeemed. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Issuer in writing of the Securities
selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to
be redeemed.
SECTION 12.3 Payment of Securities Called for
Redemption. If notice of redemption has been given as above
provided, the Securities or portions of Securities specified in
such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption,
and on and after said date (unless the Issuer shall default in
the payment of such Securities at the redemption price, together
with interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto
shall be void, and, except as provided in Sections 6.5 and 10.4,
such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect
of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at
a place of payment specified in said notice, together with all
Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment
of interest becoming due on or prior to the date fixed for
redemption shall be payable in the case of Securities with
Coupons attached thereto, to the Holders of the Coupons for such
interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the
terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall,
until paid or duly provided for, bear interest from the date
fixed for redemption at the rate of interest or Yield to Maturity
(in the case of an Original Issue Discount Security) borne by
such Security.
If any Security with Coupons attached thereto is
surrendered for redemption and is not accompanied by all
appurtenant Coupons maturing after the date fixed for redemption,
the surrender of such missing Coupon or Coupons may be waived by
the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of
them harmless.
Upon presentation of any Security redeemed in part
only, the Issuer shall execute and the Trustee shall authenticate
and deliver to or on the order of the Holder thereof, at the
expense of the Issuer, a new Security or Securities of such
series, of authorized denominations, in principal amount equal to
the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be
excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in an
Officers' Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of the Securities of any series is herein referred to
as a "mandatory sinking fund payment", and any payment in excess
of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment
is to be made is herein referred to as the "sinking fund payment
date."
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in
cash, the Issuer may at its option (a) deliver to the Trustee
Securities of such series theretofore purchased or otherwise
acquired (except upon redemption pursuant to the mandatory
sinking fund) by the Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section
2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption
provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking
fund payment date for any series, the Issuer will deliver to the
Trustee an Officers' Certificate (which need not contain the
statements required by Section 11.5) (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment
of cash and the portion to be satisfied by credit of Securities
of such series and the basis for such credit, (b) stating that
none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest
or Events of Default with respect to such series have occurred
(which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right
to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking
fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor
as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee).
Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such
60th day, to deliver such Officers' Certificate and Securities
specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking
fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such series in respect
thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed $50,000
(or the equivalent thereof in any Foreign Currency or ECU or a
lesser sum in Dollars or in any Foreign Currency or ECU if the
Issuer shall so request) with respect to the Securities of any
particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption.
If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of
$50,000 (or the equivalent thereof in any Foreign Currency or
ECU) is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be, and shall (if
requested in writing by the Issuer) inform the Issuer of the
serial numbers of the Securities of such series (or portions
thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers'
Certificate delivered to the Trustee at least 60 days prior to
the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a)
the Issuer or (b) an entity specifically identified in such
Officers' Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in
Section 12.2 (and with the effect provided in Section 12.3) for
the redemption of Securities of such series in part at the option
of the Issuer. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for
such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity
is accelerated), which are not held for the payment or redemption
of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for
the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following
sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed
any Securities of a series with sinking fund moneys or mail any
notice of redemption of Securities for such series by operation
of the sinking fund during the continuance of a default in
payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it
shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the
sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article
Five and held for the payment of all such Securities. In case
such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the sixteenth day
preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of
such Securities.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities and Coupons Subordinated to
Senior Indebtedness. The Issuer covenants and agrees, and each
Holder of a Security or Coupon, by his acceptance thereof,
likewise covenants and agrees, that the indebtedness represented
by the Securities and any Coupons and the payment of the
principal of and interest on each and all of the Securities and
of any Coupons is hereby expressly subordinated, to the extent
and in the manner hereinafter set forth, in right of payment to
the prior payment in full of Senior Indebtedness.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation, reorganization or
other similar proceedings in respect of the Issuer or a
substantial part of its property, or of any proceedings for
liquidation, dissolution or other winding up of the Issuer,
whether or not involving insolvency or bankruptcy, or (b) subject
to the provisions of Section 13.2 that (i) a default shall have
occurred with respect to the payment of principal of or interest
on or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred an event of
default (other than a default in the payment of principal or
interest or other monetary amounts due and payable) in respect of
any Senior Indebtedness, as defined therein or in the instrument
under which the same is outstanding, permitting the holder or
holders thereof to accelerate the maturity thereof (with notice
or lapse of time, or both), and such event of default shall have
continued beyond the period of grace, if any, in respect thereof,
and, in the cases of subclauses (i) and (ii) of this clause (b),
such default or event of default shall not have been cured or
waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest on the Securities of any series
shall have been declared due and payable pursuant to Section 5.1
and such declaration shall not have been rescinded and annulled
as provided in Section 5.1 then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for such
payment in money or money's worth, before the
Holders of any of the Securities or Coupons
are entitled to receive a payment on account
of the principal of or interest on the
indebtedness evidenced by the Securities or of
the Coupons, including, without limitation,
any payments made pursuant to Article Twelve;
(2) any payment by, or distribution of
assets of, the Issuer of any kind or
character, whether in cash, property or
securities, to which the Holders of any of the
Securities or Coupons or the Trustee would be
entitled except for the provisions of this
Article shall be paid or delivered by the
person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to
the holders of such Senior Indebtedness or
their representative or representatives or to
the trustee or trustees under any indenture
under which any instruments evidencing any of
such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts
remaining unpaid on account of such Senior
Indebtedness held or represented by each, to
the extent necessary to make payment in full
of all Senior Indebtedness remaining unpaid
after giving effect to any concurrent payment
or distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
holders of the indebtedness evidenced by the
Securities or Coupons or to the Trustee under
this instrument; and
(3) in the event that, notwithstanding
the foregoing, any payment by, or distribution
of assets of, the Issuer of any kind or
character, whether in cash, property or
securities, in respect of principal of or
interest on the Securities or in connection
with any repurchase by the Issuer of the
Securities, shall be received by the Trustee
or the Holders of any of the Securities or
Coupons before all Senior Indebtedness is paid
in full, or provision made for such payment in
money or money's worth, such payment or
distribution in respect of principal of or
interest on the Securities or in connection
with any repurchase by the Issuer of the
Securities shall be paid over to the holders
of such Senior Indebtedness or their
representative or representatives or to the
trustee or trustees under any indenture under
which any instruments evidencing any such
Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness
shall have been paid in full, after giving
effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness.
Notwithstanding the foregoing, at
any time after the 121st day following the
date of deposit of cash or, in the case of
Securities payable only in Dollars, U.S.
Government Obligations pursuant to Section
10.1(B) (provided all conditions set out in
such Section shall have been satisfied), the
funds so deposited and any interest thereon
will not be subject to any rights of holders
of Senior Indebtedness including, without
limitation, those arising under this Article
Thirteen.
SECTION 13.2 Disputes with Holders of Certain Senior
Indebtedness. Any failure by the Issuer to make any payment on
or perform any other obligation under Senior Indebtedness, other
than any indebtedness incurred by the Issuer or assumed or
guaranteed, directly or indirectly, by the Issuer for money
borrowed (or any deferral, renewal, extension or refunding
thereof) or any indebtedness or obligation as to which the
provisions of this Section shall have been waived by the Issuer
in the instrument or instruments by which the Issuer incurred,
assumed, guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default or event of default
under Section 13.1(b) if (i) the Issuer shall be disputing its
obligation to make such payment or perform such obligation and
(ii) either (A) no final judgment relating to such dispute shall
have been issued against the Issuer which is in full force and
effect and is not subject to further review, including a judgment
that has become final by reason of the expiration of the time
within which a party may seek further appeal or review, and (B)
in the event of a judgment that is subject to further review or
appeal has been issued, the Issuer shall in good faith be
prosecuting an appeal or other proceeding for review and a stay
of execution shall have been obtained pending such appeal or
review.
SECTION 13.3 Subrogation. Subject to the payment in
full of all Senior Indebtedness, the Holders of the Securities
and any Coupons shall be subrogated (equally and ratably with the
holders of any obligations of the Issuer which by their express
terms are subordinated to Senior Indebtedness of the Issuer to
the same extent as the Securities are subordinated and which are
entitled to like rights of subrogation) to the rights of the
holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness until all amounts owing on
the Securities and any Coupons shall be paid in full, and as
between the Issuer, its creditors other than holders of such
Senior Indebtedness and the Holders, no such payment or
distribution made to the holders of Senior Indebtedness by virtue
of this Article that otherwise would have been made to the
Holders shall be deemed to be a payment by the Issuer on account
of such Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders, on the
one hand, and the holders of Senior Indebtedness, on the other
hand.
SECTION 13.4 Obligation of Issuer Unconditional.
Nothing contained in this Article or elsewhere in this Indenture
or in the Securities or any Coupons is intended to or shall
impair, as among the Issuer, its creditors other than the holders
of Senior Indebtedness and the Holders, the obligation of the
Issuer, which is absolute and unconditional, to pay to the
Holders the principal of and interest on the Securities and the
amounts owed pursuant to any Coupons as and when the same shall
become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders
and creditors of the Issuer other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of case, property or securities
of the Issuer received upon the exercise of any such remedy.
Upon payment or distribution of assets of the Issuer
referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any such dissolution, winding up,
liquidation or reorganization proceeding affecting the affairs of
the Issuer is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or other person making any payment
or distribution, delivered to the Trustee or to the Holders, for
the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Issuer, the amount
thereof or payable thereon, the amount paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION 13.5 Payments on Securities and Coupons
Permitted. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities or Coupons shall affect the
obligations of the Issuer to make, or prevent the Issuer from
making, payment of the principal of or interest on the Securities
and of any Coupons in accordance with the provisions hereof and
thereof, except as otherwise provided in this Article.
SECTION 13.6 Effectuation of Subordination by Trustee.
Each holder of Securities or Coupons, by his acceptance thereof,
authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
SECTION 13.7 Knowledge of Trustee. Notwithstanding the
provisions of this Article or any other provisions of this
Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any
payment of moneys to or by the Trustee, or the taking of any
other action by the Trustee, unless and until the Trustee shall
have received written notice thereof mailed or delivered to the
Trustee at its Corporate Trust Office from the Issuer, any
Holder, any paying agent or the holder or representative of any
class of Senior Indebtedness; provided that if at least three
Business Days prior to the date upon which by the terms hereof
any such moneys may become payable for any purpose (including,
without limitation, the payment of the principal or interest on
any Security or interest on any Coupon) the Trustee shall not
have received with respect to such moneys the notice provided for
in this Section, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority
to receive such moneys and to apply the same to the purpose for
which they were received and shall not be affected by any notice
to the contrary that may be received by it within three Business
Days prior to or on or after such date.
SECTION 13.8 Trustee May Hold Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held
by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Section 6.8 or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such
holder.
SECTION 13.9 Rights of Holders of Senior Indebtedness
Not Impaired. No right of any present or future holder of any
Senior Indebtedness to enforce the subordination herein shall at
any time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuer or by any noncompliance
by the Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
With respect to the holders of Senior Indebtedness, (i)
the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, (ii) the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, (iii) no implied covenants or obligations shall be
read into this Indenture against the Trustee and (iv) the Trustee
shall not be deemed to be a fiduciary as to such holders.
SECTION 13.10 Article Applicable to Paying Agents. In
case at any time any paying agent other than the Trustee shall
have been appointed by the Issuer and be then acting hereunder,
the term "Trustee" as used in this Article shall in such case
(unless the context shall require otherwise) be construed as
extending to and including such paying agent within its meaning
as fully for all intents and purposes as if such paying agent
were named in this Article in addition to or in place of the
Trustee, provided, however, that Sections 13.7 and 13.8 shall not
apply to the Issuer if it acts as its own paying agent.
SECTION 13.11 Trustee; Compensation Not Prejudiced.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee pursuant to Section 6.6.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of March 10,
1994.
CONAGRA, INC.
By:__________________________
Title: _____________________
[CORPORATE SEAL]
Attest:
By ___________________________
Title:
First Trust National
Association, Trustee
By: __________________________
Title: ______________________
[CORPORATE SEAL]
Attest:
By ___________________________
Title:
STATE OF NEBRASKA )
) ss:
COUNTY OF DOUGLAS )
On this ____ day of March, 1994 before me personally
came _________________, to me personally known, who, being by me
duly sworn, did depose and say that he resides at Omaha,
Nebraska, that he is the ______________________________________
of ConAgra, Inc., one of the corporations described in and which
executed the above instrument; that he knows the corporate seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
______________________________
Notary Public
STATE OF MINNESOTA )
) ss:
COUNTY OF HENNEPIN )
On this ____ day of March, 1994 before me personally came
__________________________, to me personally known, who, being by
me duly sworn, did depose and say that he resides in Apple
Valley, Minnesota, that he is ____________________________ of
First Trust National Association, one of the corporations
described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
______________________________
Notary Public
Exhibit 5.1
McGrath, North, Mullin & Kratz, P.C.
222 South 15th Street
Suite 1400
Omaha, NE 68102
(402) 341-3070
March 11, 1994
ConAgra, Inc.
One ConAgra Drive
Omaha, NE 68102-5001
Gentlemen:
ConAgra, Inc. (the "Company") and ConAgra Capital, L.C.
("ConAgra Capital") propose to jointly file with the Securities
and Exchange Commission under the Securities Act of 1933, as
amended, a registration statement on Form S-3 (the "Registration
Statement") covering up to $450,000,000 in securities including
(i) the proposed issuance from time to time of certain preferred
securities of ConAgra Capital (the "Preferred Securities") and
(ii) the proposed issuance from time to time of debt securities
of ConAgra (the "Debt Securities") which are to be issued in one
or more series from time to time under one or more indentures
(each an "Indenture"), the forms of which appear as an exhibit to
the Registration Statement. In connection with the issuance of
any Preferred Securities, the Company may enter into certain
obligations including debentures, guarantees, and expense payment
agreements (collectively, the "Backup Undertakings"). In
connection with the foregoing, we have examined corporate records
of the Company and such other documents and materials as we
considered relevant to the opinions set forth below, and have
made such investigation of matters of law and fact as we have
considered appropriate.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and has full corporate power to execute and deliver
each Indenture and the Debt Securities.
2. The execution and delivery of each Indenture by the
Company has been duly authorized, and, subject to compliance with
the procedures specified in each Indenture relating to the
authorization of the several series of Debt Securities, the
issuance of the Debt Securities in such series will be duly
authorized; and when each Indenture has been duly executed and
delivered by the Company and the Debt Securities of a series has
been so authorized and executed by the Company, authenticated by
the applicable trustee and delivered against payment therefor,
the Debt Securities of such series will constitute legally issued
and valid obligations of the Company.
3. When (a) the terms of the Backup Undertakings of the
Company relating to the Preferred Securities have been duly
established in accordance with applicable law, (b) the
instruments relating to the Backup Undertakings have been duly
authorized, executed and delivered, (c) the Preferred Securities
to which any of the Backup Undertakings relate have been duly
issued and sold and the purchase price therefor has been
received, the Backup Undertakings will constitute valid and
binding obligations of the Company, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditor's rights and to
general equity principles.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of our name
in the section entitled "Legal Matters" of the Registration
Statement.
Very truly yours,
McGRATH, NORTH, MULLIN & KRATZ,
P.C.
/s/ David L. Hefflinger
FOR THE FIRM
Exhibit 5.2
DICKINSON, MACKAMAN, TYLER & HAGEN, P.C.
ATTORNEYS AT LAW
1600 HUB TOWER
699 WALNUT STREET
DES MOINES, IOWA 50309-3986
Telephone (515) 246-2600
Telecopier (515) 246-4550
Writer's Direct Line (515) 246-4526
March 11, 1994
ConAgra Capital, L.C.
ConAgra, Inc.
c/o ConAgra, Inc.
One Central Park Plaza
Omaha, Nebraska 68102
Gentlemen:
We have acted as special Iowa counsel to ConAgra Capital,
L.C. ("ConAgra Capital"). Capitalized terms used in this opinion
and not defined herein have the meanings ascribed thereto in the
Articles of Organization and Articles of Correction (together,
the "Articles") of ConAgra Capital and the March 11, 1994 draft
of the Operating Agreement of ConAgra Capital (the "Operating
Agreement").
In our capacity as special Iowa counsel, we have examined a
copy of the Operating Agreement. In addition, we have reviewed a
file-stamped copy of the Articles of Organization filed with the
Iowa Secretary of State on March 10, 1994, at 4:14 p.m. Central
Standard Time and a file-stamped copy of the Articles of
Correction filed with the Iowa Secretary of State on March 11,
1994, at 1:13 p.m. Central Standard Time. We have also examined
such other documents and records and made such investigations of
law as we have deemed necessary or advisable for purposes of this
opinion.
We have assumed the authenticity of all documents submitted
to us, the conformity to the original documents of all documents
submitted to us as copies, and the genuineness of all signatures.
Based upon and subject to the foregoing, we are of the
opinion that:
(1) ConAgra Capital has been duly formed and is validly
existing in good standing as a limited liability company under
the Iowa Limited Liability Company Act, Chapter 490A of the Code
of Iowa.
(2) Upon authorization, issuance and payment as
contemplated in and permitted by the Articles and the final
operating agreement, the Series Preferred Membership Interests
will represent valid, fully-paid and nonassessable limited
liability company interests in ConAgra Capital, as to which the
Preferred Members, in their capacity as members of ConAgra
Capital will have no liability solely by reason of being
Preferred Members in excess of their obligations to make payments
that may be provided for in the final operating agreement and
their share of ConAgra Capital's assets and undistributed profits
(subject to the obligation of a Preferred Member to repay any
funds wrongfully distributed to it).
The opinions expressed herein are qualified in the following
respects:
(a) We express no opinion with respect to federal, state or
local taxes or tax statutes.
(b) The foregoing opinions are limited in all respects to
the laws of the State of Iowa.
(c) This opinion is given as of the date hereof. The
undersigned has no obligation to advise the addressees or any
third party of changes of law or fact that occur after the date
of this opinion, even though the change may affect the legal
analysis, or a legal conclusion.
(d) For purposes of the opinions expressed in paragraph 2
above, we have assumed that (i) the final operating agreement of
ConAgra Capital is consistent in all material respects with the
Operating Agreement we have reviewed; (ii) any Series Preferred
Membership Interests issued by ConAgra Capital will be issued
only upon an amendment to the final operating agreement which
creates the series; and, (iii) the amendment to the final
operating agreement will provide that no Preferred Member shall
be required to make any additional contributions to the capital
of ConAgra Capital nor be obligated to satisfy any negative
capital account balance.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the registration
statement filed by ConAgra Capital and ConAgra, Inc. We hereby
consent to the use of our firm name in the "legal matters" and/or
"validity of securities" section of such registration statement.
Very truly yours,
Dickinson, Mackaman, Tyler & Hagen, P.C.
By: /s/ J. Marc Ward
Exhibit 8
(212) 450-4606
March 11, 1994
ConAgra, Inc.
ConAgra Capital, L.C.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Re: Shelf Registration - U.S.$450,000,000
ConAgra Capital, L.C. ("ConAgra Capital")
Preferred Securities and ConAgra, Inc.
("ConAgra") Debt Securities
Dear Sirs:
We have acted as special tax counsel for ConAgra
Capital and ConAgra in connection with the registration of
U.S.$450,000,000 ConAgra Capital Preferred Securities and
ConAgra Debt Securities. In connection therewith, we have
reviewed the discussion set forth under the caption "CERTAIN
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES" (the
"Discussion") in the prospectus (the "Prospectus") that is
part of the Registration Statement on Form S-3 filed by
ConAgra Capital and ConAgra with the Securities and Exchange
Commission on March 11, 1994. Capitalized terms used herein
but not defined have the same meanings as provided in the
Prospectus.
In rendering our opinion, we have relied upon,
among other things, (i) certain representations and
covenants of ConAgra Capital and ConAgra and (ii) the
opinion of Dickinson, Mackaman, Tyler & Hagen, P.C.
Assuming the proceeds of the offering of the Preferred
Securities are used as described in the Prospectus under the
caption "Use of Proceeds," it is our opinion that the
Discussion is accurate.
We hereby consent to the use of our name under the
caption "CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES" in the Prospectus. The issuance of such a
consent does not concede that we are an "expert" for the
purposes of the Securities Act of 1933.
Very truly yours,
/s/ Davis Polk & Wardwell
EXHIBIT 10.1
PAYMENT AND GUARANTEE AGREEMENT
THIS PAYMENT AND GUARANTEE AGREEMENT (the
"Guarantee"), dated as of _______________, is executed and
delivered by ConAgra, Inc., a Delaware corporation
("ConAgra" or the "Guarantor") for the benefit of the
Holders (as defined below) from time to time of the
Preferred Interests (as defined below) of ConAgra Capital
L.C., a limited liability company organized under the laws
of the state of Iowa (the "Issuer").
WHEREAS, the Issuer intends to issue its Common
Membership Interests (the "Common Interests") to and receive
related capital contributions (the "Common Interest
Payments") from HW Nebraska, Inc. and CP Nebraska, Inc. (the
"Managing Members") and to issue and sell from time to time,
in one or more series, Series Preferred Membership Interests
(the "Preferred Interests") with a liquidation preference
(the "Liquidation Preference") established by a written
action or actions of the Managing Members providing for the
issue of such series;
WHEREAS, the Issuer will purchase debentures (the
"Debentures") issued pursuant to the Subordinated Indenture
(the "Subordinated Indenture") dated as of March 10, 1994,
between the Guarantor and First Trust National Association,
a national banking corporation, as trustee, with the
proceeds from the issuance and sale of the Preferred
Interests and with the proceeds from the issuance and sale
of the Common Interest Payments; and
WHEREAS, the Guarantor desires hereby to
irrevocably and unconditionally agree to the extent set
forth herein to pay to the Holders the Guarantee Payments
(as defined below) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase
by each Holder of the Preferred Interests, which purchase
the Guarantor hereby agrees shall benefit the Guarantor and
which purchase the Guarantor acknowledges will be made in
reliance upon the execution and delivery of this Guarantee,
the Guarantor executes and delivers this Guarantee for the
benefit of the Holders.
ARTICLE I
As used in this Guarantee, the terms set forth
below shall, unless the context otherwise requires, have the
following meanings. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to
such terms in the Limited Liability Company Operating
Agreement of the Issuer dated as of March __, 1994.
"Expense Agreement" shall mean the Agreement as to
Expenses and Liabilities entered into between the Issuer and
ConAgra pursuant to which ConAgra has agreed to guarantee
the payment of any indebtedness or liabilities incurred by
the Issuer (other than obligations to Holders of Preferred
Interests in such Holders' capacities as holders of such
Preferred Interests).
"Guarantee Payments" shall mean the following
payments, without duplication, to the extent not paid by the
Issuer: (i) any accumulated and unpaid distributions which
have been theretofore declared on the Preferred Interests of
any series out of funds legally available therefor, (ii) the
redemption price (including all accumulated and unpaid
distributions) payable out of funds legally available
therefor with respect to any Preferred Interests of any
series called for redemption by the Issuer and (iii) upon
the liquidation of the Issuer, the lesser of (a) the
Liquidation Distribution (as defined below) and (b) the
amount of assets of the Issuer legally available for
distribution to Holders of Preferred Interests of such
series in liquidation.
"Holder" shall mean any holder from time to time
of any Preferred Interests of any series of the Issuer;
provided, however, that in determining whether the Holders
of the requisite percentage of Preferred Interests have
given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any entity owned
50% or more by the Guarantor, either directly or indirectly.
"Liquidation Distribution" shall mean the
aggregate of the stated Liquidation Preference of all series
of Preferred Interests issued and outstanding and all
accumulated and unpaid distributions (whether or not
declared) to the date of payment.
"Managing Members" refers to HW Nebraska, Inc. and
CP Nebraska, Inc. in their capacity as holders of all of the
Issuer's Common Interests.
"Redemption Price" shall mean the stated
Liquidation Preference per Preferred Interest plus
accumulated and unpaid distributions (whether or not
declared) to the date fixed for redemption.
ARTICLE II
Section 2.01. The Guarantor irrevocably and
unconditionally agrees, to the extent set forth herein, to
pay in full, to the Holders the Guarantee Payments, as and
when due (except to the extent paid by the Issuer),
regardless of any defense, right of set-off or counterclaim
which the Issuer may have or assert.
This Guarantee is continuing, irrevocable,
unconditional and absolute. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment
of the required amounts by the Guarantor to the Holders or
by causing the Issuer to pay such amounts to such Holders.
Section 2.02. The Guarantor hereby waives notice
of acceptance of this Guarantee and of any liability to
which it applies or may apply, presentment, demand for
payment, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
Section 2.03. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee
shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the
Issuer of any express or implied agreement, covenant,
term or condition relating to the Preferred Interests
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the redemption price,
liquidation or other distributions or any other sums
payable under the terms of the Preferred Interests or
the extension of time for the performance of any other
obligation under, arising out of, or in connection
with, the Preferred Interests;
(c) any failure, omission, delay or lack of
diligence on the part of the Holders to enforce, assert
or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the
Preferred Interests, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency
in, any of the Preferred Interests; or
(f) the settlement or compromise of any
obligation guaranteed hereby or hereby incurred.
There shall be no obligation of the Holders to give notice
to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
Section 2.04. This is a guarantee of payment and
not of collection. A Holder may enforce this Guarantee
directly against the Guarantor, and the Guarantor waives any
right or remedy to require that any action be brought
against the Issuer or any other person or entity before
proceeding against the Guarantor. Subject to Section 2.05
hereof, all waivers herein contained shall be without
prejudice to the Holders' right at the Holders' option to
proceed against the Issuer, whether by separate action or by
joinder. The Guarantor agrees that this Guarantee shall not
be discharged except by payment of the Guarantee Payments in
full (to the extent not paid by the Issuer) and by complete
performance of all obligations of the Guarantor contained in
this Guarantee.
Section 2.05. The Guarantor shall be subrogated
to all (if any) rights of the Holders against the Issuer in
respect of any amounts paid to the Holders by the Guarantor
under this Guarantee and shall have the right to waive
payment of any amount of distributions in respect of which
payment has been made to the Holders by the Guarantor
pursuant to Section 2.01 hereof; provided, however, that the
Guarantor shall not (except to the extent required by
mandatory provisions of law) exercise any rights which it
may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result
of a payment under this Guarantee, if, at the time of any
such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to
pay over such amount to the Holders.
Section 2.06. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of
the Issuer with respect to the Preferred Interests and that
the Guarantor shall be liable as principal and sole debtor
hereunder to make Guarantee Payments pursuant to the terms
of this Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (f), inclusive,
of Section 2.03 hereof.
ARTICLE III
Section 3.01. So long as any Preferred Interests
of any series remain outstanding, the Guarantor shall not
and shall not permit any of its majority owned subsidiaries
to declare or pay any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any
of the Guarantor's capital stock or make any guarantee
payments with respect to the foregoing (other than (i)
payments under this Guarantee or (ii) payments to redeem
common share purchase rights under the Guarantor's
shareholder rights plan dated July 10, 1986, as amended, or
the declaration of a dividend of similar share purchase
rights in the future), if at such time the Guarantor shall
be in default with respect to its payment obligations
hereunder or there shall have occurred any event that, with
the giving of notice or the lapse of time or both, would
constitute an Event of Default under the Debentures.
Section 3.02. The Guarantor covenants, so long as
any Preferred Interests of any series remain outstanding it
will: (i) not cause or permit any Common Interests of the
Issuer to be transferred; (ii) maintain direct or indirect
100% ownership of all outstanding interests of the Issuer
other than the Preferred Interests of any series and any
other securities permitted to be issued by the Issuer that
would not cause it to become an "investment company" under
the Investment Company Act of 1940, as amended; (iii) cause
at least 21% of the total value of the Issuer and at least
21% of all interests in the capital, income, gain, loss,
deduction and credit of the Issuer to be represented by
Common Interests; (iv) not voluntarily dissolve, wind-up or
liquidate the Issuer or either of the Managing Members; (v)
cause HW Nebraska, Inc. and CP Nebraska, Inc. to remain the
Managing Members of the Issuer and timely perform all of
their respective duties as Managing Members (including the
duty to declare and pay distributions on the Preferred
Interests) and (vi) to use reasonable efforts to cause the
Issuer to remain a limited liability company under the laws
of the State of Iowa and otherwise continue to be treated as
a partnership for United States federal income tax purposes;
provided that the Guarantor may, solely to change the
________
domicile of the Issuer, permit the Issuer to consolidate or
merge with or into another limited liability company or
limited partnership formed under the laws of any state of
the United States of America so long as:
(a) such successor limited liability company or
limited partnership expressly assumes all of the
obligations of the Issuer under each series of
Preferred Interest then outstanding,
(b) the Guarantor expressly acknowledges such
successor as the holder of all of the Debentures
relating to each series of Preferred Interests then
outstanding,
(c) such merger or consolidation does not cause
any series of Preferred Interests then outstanding to
be delisted by any national securities exchange or
other organization on which such series is then listed,
(d) Holders of outstanding Preferred Interests do
not suffer any adverse tax consequences as a result of
such merger or consolidation,
(e) such merger or consolidation does not cause
any series of Preferred Interests to be downgraded by
any "nationally recognized statistical rating
organization," as such term is defined by the
Securities and Exchange Commission for purposes of Rule
436(g)(2) under the Securities Act of 1933, as amended,
and
(f) following such merger or consolidation,
neither the Guarantor nor such successor limited
liability company are an "investment company" under the
Investment Company Act of 1940, as amended.
Section 3.03. The Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other
liabilities of the Guarantor, (ii) pari passu with the most
senior preferred stock now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered
into by the Guarantor in respect of any preferred or
preference stock of any affiliate of the Guarantor and (iii)
senior to the Guarantor's common stock.
ARTICLE IV
This Guarantee shall terminate and be of no
further force and effect as to any series of Preferred
Interest upon full payment of the Redemption Price of all
Preferred Interests of such series, and shall terminate
completely upon full payment of the amounts payable to the
Holders upon liquidation of the Issuer; provided, however,
that this Guarantee shall continue to be effective or shall
be reinstated, as the case may be, if at any time any holder
of Preferred Interests of any series must restore payment of
any sums paid under the Preferred Interests of such series
or under this Guarantee for any reason whatsoever. The
Guarantor agrees to indemnify each Holder and hold it
harmless against any loss it may suffer in such
circumstances.
ARTICLE V
Section 5.01. All guarantees and agreements
contained in this Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders.
The Guarantor shall not assign its obligations hereunder
without the prior approval of the Holders of not less than
66-2/3% in liquidation preference of all Preferred Interests
of all series then outstanding voting as a single class.
Section 5.02. Except with respect to any changes
which do not adversely affect the rights of Holders (in
which cases no vote will be required), this Guarantee may
only be amended by instrument in writing signed by the
Guarantor with the prior approval of the Holders of not less
than 66-2/3% in stated liquidation preference of all
Preferred Interests of all series then outstanding voting as
a single class.
Section 5.03. Any notice, request or other
communication required or permitted to be given hereunder to
the Guarantor shall be given in writing by delivering the
same against receipt therefor by facsimile transmission
(confirmed by mail), addressed to the Guarantor, as follows
(and if so given, shall be deemed given when mailed), to
wit:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Attn: Treasurer
Fax: (402) 595-4438
Telephone: (402) 595-4000
Any notice, request or other communication
required or permitted to be given hereunder to the Holders
shall be given by the Guarantor in the same manner as
notices sent by the Issuer to the Holders.
Section 5.04. The masculine and neuter genders
used herein shall include the masculine, feminine and neuter
genders.
Section 5.05. This Guarantee is solely for the
benefit of the Holders and is not separately transferable
from the Preferred Interests.
Section 5.06. THIS GUARANTEE SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
THIS GUARANTEE is executed as of the day and year
first above written.
ConAgra, Inc.
By _____________________
Name:
Title:
EXHIBIT 10.2
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT, dated as of ______________ between
ConAgra, Inc. ("ConAgra"), a corporation organized under the
laws of the State of Delaware, and ConAgra Capital, L.C., a
limited liability company organized under the laws of the
State of Iowa (the "Company).
WHEREAS, the Company intends to issue its Common
Membership Interests (the "Common Interests") to and receive
related capital contributions (the "Common Interest
Payments") from HW Nebraska, Inc. and CP Nebraska, Inc. (the
"Managing Members") and to issue and sell from time to time,
in one or more series, Series Preferred Membership Interests
(the "Preferred Interests") with a liquidation preference
(the "Liquidation Preference") established by a written
action or actions of the Managing Members providing for the
issue of such series;
WHEREAS, ConAgra will indirectly own all of the
Common Interests of the Company;
NOW, THEREFORE, in consideration of the purchase
by each holder of the Preferred Interests, which purchase
ConAgra hereby agrees shall benefit ConAgra and which
purchase ConAgra acknowledges will be made in reliance upon
the execution and delivery of this Agreement, ConAgra and
the Company hereby agree as follows:
Section 1.01. Guarantee by ConAgra. Subject to
the terms and conditions hereof, ConAgra hereby irrevocably
and unconditionally guarantees to each person or entity to
whom the Company is now or hereafter becomes indebted or
liable (other than obligations to holders of the Preferred
Interests of any series in such holders' capacities as
holders of such shares; such obligations being separately
guaranteed to the extent set forth in the Payment and
Guarantee Agreement dated the date hereof and executed and
delivered by ConAgra (the "Guarantee")) (the
"Beneficiaries") the full payment, when and as due,
regardless of any defense, right of set-off or counterclaim
which the Company may have or assert, of any and all
indebtedness and liabilities of the Company to such
Beneficiaries (collectively, the "Obligations"). This
Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement
shall terminate and be of no further force and effect upon
the later of (i) the date on which full payment has been
made of all amounts payable to all holders of any series of
the Preferred Interests upon liquidation of the Company and
(ii) the date on which there are no Beneficiaries remaining;
provided, however, that this Agreement shall continue to be
effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Interests of any series or
any Beneficiary must restore payment of any sums paid under
the Preferred Interests of such series, under any
Obligation, under the Guarantee or under this Agreement for
any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. ConAgra hereby
waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply and ConAgra
hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 1.04. Releases, Waivers, Etc. The
obligations, covenants, agreements and duties of ConAgra
under this Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Company
of any express or implied agreement, covenant, term or
condition relating to the Obligations to be performed or
observed by the Company;
(b) the extension of time for the payment by the
Company of all or any portion of the Obligations or for the
performance of any other obligation under, arising out of,
or in connection with, the Obligations;
(c) any failure, omission, delay or lack of
diligence on the part of the Beneficiaries to enforce,
assert or exercise any right, privilege, power or remedy
conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Company
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Company or any of the assets of the Company;
or
2
(e) the settlement or compromise of any
Obligation guaranteed hereby or any obligation hereby
incurred.
There shall be no obligation of the Beneficiaries to give
notice to, or obtain the consent of, ConAgra with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may
enforce this Agreement directly against ConAgra and ConAgra
waives any right or remedy to require that any action be
brought against the Company or any other person or entity
before proceeding against ConAgra.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives
of ConAgra and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there
remains any Beneficiary of the Company, or any Preferred
Interest of any series remains outstanding, this Agreement
shall not be modified or amended in any manner adverse to
such Beneficiaries or to the holders of the Preferred
Interests.
Section 2.03. Notices. Any notice, request or
other communication required or permitted to be given
hereunder shall be given in writing by delivering the same
against receipt therefor by facsimile transmission
(confirmed by mail), addressed as follows (and if so given,
shall be deemed given when mailed), to wit:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Attn: Treasurer
Fax: (402) 595-4438
Telephone: (402) 595-4000
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Attn: Treasurer
Fax: (402) 595-4438
Telephone: (402) 595-4000
3
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
THIS AGREEMENT is executed as of the day and year
first above written.
CONAGRA, INC.
By _____________________________
Name:
Title:
CONAGRA CAPITAL, L.C.
By: CP Nebraska, Inc., a Nebraska
corporation, as Managing
Member
By _____________________________
Name:
Title:
By: HW Nebraska, Inc., a Nebraska
corporation, as Managing
Member
By _____________________________
Name:
Title:
4
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of ConAgra, Inc. on Form S-3 of our reports dated July
15, 1993, appearing in and incorporated by reference in the
Annual Report on Form 10-K of ConAgra, Inc. for the year ended
May 30, 1993 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration
Statement.
DELOITTE & TOUCHE
Omaha, Nebraska
March 11, 1994
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $500,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or 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
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 9th day of March, 1994.
/s/ C. M. Harper
________________________________
C. M. Harper
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $500,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or 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
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 11th day of March, 1994.
/s/ Robert A. Krane
________________________________
Robert A. Krane
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $500,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or 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
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 9th day of March, 1994.
/s/ Gerald Rauenhorst
________________________________
Gerald Rauenhorst
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $500,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or 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
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 9th day of March, 1994.
/s/ Carl E. Reichardt
________________________________
Carl E. Reichardt
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $500,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or 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
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 8th day of March, 1994.
/s/ Ronald W. Roskens
________________________________
Ronald W. Roskens
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $500,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or 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
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 8th day of March, 1994.
/s/ Walter Scott, Jr.
________________________________
Walter Scott, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $500,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or 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
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 8th day of March, 1994.
/s/ William G. Stocks
________________________________
William G. Stocks
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $500,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or 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
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 8th day of March, 1994.
/s/ Frederick B. Wells
________________________________
Frederick B. Wells
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $500,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or 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
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 10th day of March, 1994.
/s/ Thomas R. Williams
________________________________
Thomas R. Williams
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned Director of
ConAgra, Inc. constitutes and appoints P. B. Fletcher his true
and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead in any and all capacities, to execute a registration
statement on Form S-3 for the registration under the Securities
Act of 1933 of up to $500,000,000 maximum aggregate offering
price of securities of ConAgra, Inc., including but not limited
to debt and/or equity securities, and/or securities into which
the securities are convertible into or exchangeable for, and/or
guarantees or other agreements with respect to securities of
subsidiaries of Conagra, Inc., and any and all amendments and
post-effective amendments and supplements to the registration
statement and any and all instruments necessary or incidental in
connection therewith, and to file the same with the Securities
and Exchange Commission, granting unto such attorney-in-fact and
agent, full power and authority to do and perform each and every
act and thing requisite or 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
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal this 8th day of March, 1994.
/s/ Clayton K. Yeutter
________________________________
Clayton K. Yeutter
Exhibit 26.1
Securities Act of 1933 File No.
_________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
_________________________________________________________________
_____________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)___________
__________________
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
________________
CONAGRA, INC.
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
47-0248710
(I.R.S. Employer Identification No.)
One ConAgra Drive
Omaha, Nebraska
(Address of principal executive offices)
68102-5001
(Zip Code)
__________________________________
Debt Securities
(Title of the indenture securities)
_______________________________________________
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The Trustee is not the obligor, nor is the Trustee directly
or indirectly controlling, controlled by, or under common
control with the obligor.
(See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement
of eligibility.
*1. -- A copy of the articles of association of the
trustee as now in effect . (See Exhibit T-1 (Item
12) , Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The
Chase Manhattan Bank (National Association) and
The Chase Bank of New York (National Association)
to commence business and a copy of approval of
merger of said corporations, all of which
documents are still in effect. (See Exhibit T-1
(Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan
Bank (National Association) to exercise corporate
trust powers, both of which documents are still in
effect. (See Exhibit T-1 (Item 12), Registration
No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee.
(See Exhibit T-1 (Item 12(a)), Registration No.
33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if
the obligor is in default. (Not applicable).
*6. -- The consents of United States institutional
trustees required by Section 321(b) of the Act.
(See Exhibit T-1, (Item 12), Registration No. 22-
19019.)
7. -- A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
___________________
*The Exhibits thus designated are incorporated herein by
reference. Following the description of such Exhibits is a
reference to the copy of the Exhibit heretofore filed with the
Securities and Exchange Commission, to which there have been no
amendments or changes.
___________________
1.
NOTE
Inasmuch as this Form T-1 is filed prior to the
ascertainment by the trustee of all facts on which to base a
responsive answer to Item 2 the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless
amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, the trustee, The Chase Manhattan Bank (National
Association), a corporation organized and existing under the
laws of the United States of America, has duly caused this
statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New
York, and the State of New York, on the 11th day March, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
/s/ Sheik Wiltshire
By _______________________
Sheik Wiltshire
Corporate Trust Officer
_________________
2
<TABLE>
EXHIBIT 7
<S> <C>
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of
The Chase Manhattan Bank, N.A.
of New York in the State of New York, at the close of business on December
31, 1993, published in response to call made by Comptroller of the Currency,
under title 12, United States Code, Section 161.
Charter Number 02370 Comptroller of the Currency Northeastern District
Statement of Resources and Liabilities
ASSETS Thousands
of Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........ $ 5,778,428
Interest-bearing balance .................................. 5,431,174
Securities ...................................................... 7,439,029
Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBFs:
Federal funds sold ......................................... 3,982,649
Securities purchased under agreements to resell ............ 0
Loans and lease financing receivables:
Loans and leases, net of unearned income .................. $48,856,930
LESS: Allowance for loan and lease losses ................. $ 1,065,877
LESS: Allocated transfer risk reserve ..................... 0
-----------
Loans and leases, net of unearned income, allowance, and reserve 47,791,053
Assets held in trading accounts ................................. 6,244,939
Premises and fixed assets (including capitalized leases) ........ 1,617,111
Other real estate owned ......................................... 1,189,024
Investments in unconsolidated subsidiaries and associated
companies ................................................. 67,637
Customers' liability to this bank on acceptances outstanding .... 774,020
Intangible assets ............................................... 354,023
Other assets .................................................... 3,520,283
-----------
TOTAL ASSETS .................................................... 84,189,415
-----------
-----------
LIABILITIES
Deposits:
In domestic offices ....................................... $34,624,513
Noninterest-bearing .................. $13,739,371
Interest-bearing ..................... 20,885,142
-----------
In foreign offices, Edge and Agreement
subsidiaries, and IBFs .................................... 30,660,808
Noninterest-bearing ..................... 2,473,222
Interest-bearing ....................... 28,187,586
-----------
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased ................................... 2,829,219
Securities sold under agreements to repurchase ............ 140,462
Demand notes issued to the U.S. Treasury ........................ 25,000
Other borrowed money ............................................ 2,618,185
Mortgage indebtedness and obligations under capitalized leases .. 41,366
Bank's liability on acceptances, executed and outstanding ....... 780,289
Subordinated notes and debentures ............................... 2,360,000
Other liabilities ............................................... 3,697,556
-----------
TOTAL LIABILITIES ............................................... $77,777,398
-----------
-----------
Limited-life preferred stock and related surplus ................ 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................... 0
Common stock .................................................... $ 910,494
Surplus ......................................................... 4,382,506
Undivided profits and capital reserves .......................... 920,258
Net unrealized gains on available-for-sale securities ........... 187,683
Cumulative foreign currency translation adjustments ............. 11,076
-----------
TOTAL EQUITY CAPITAL ............................................ 6,412,017
-----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND
EQUITY CAPITAL ............................................ $84,189,415
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and
to the best of our knowledge and belief has been prepared in conformance with
the instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Boyle
</TABLE>
Exhibit 26.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
ConAgra, Inc.
(Exact name of registrant as specified in its charter)
Delaware 47-0248710
(State of Incorporation) (I.R.S. Employer
Identification No.)
One ConAgra Drive
Omaha, Nebraska 68102-5001
(Address of Principal Executive Offices) (Zip Code)
Debentures
(Title of the Indenture Securities)
GENERAL
1. General Information. Furnish the following information as
to the Trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor
or any underwriter for the obligor is an affiliate of the
Trustee, describe each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the
Trustee's knowledge the obligor is not in default under any
Indenture for which the Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of
this statement of eligibility and qualification. Each of
the exhibits listed below is incorporated by reference from
a previous registration.
1. Copy of Articles of Association.
2. Copy of Certificate of Authority to Commence Business.
3. Authorization of the Trustee to exercise corporate
trust powers (included in Exhibits 1 and 2; no separate
instrument).
4. Copy of existing By-Laws.
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b)
of the act.
7. Copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its
supervising or examining authority.
NOTE
The answers to this statement insofar as such answers relate
to what persons have been underwriters for any securities of the
obligors within three years prior to the date of filing this
statement, or what persons are owners of 10% or more of the
voting securities of the obligors, or affiliates, are based upon
information furnished to the Trustee by the obligors. While the
Trustee has no reason to doubt the accuracy of any such
information, it cannot accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the Trustee, First Trust National Association, an
Association organized and existing under the laws of the United
States, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed
and attested, all in the City of Saint Paul and State of
Minnesota on the 9th day of March, 1994.
FIRST TRUST NATIONAL ASSOCIATION
[SEAL]
/s/ Frank P. Leslie III
Frank P. Leslie III
Assistant Vice President
/s/ David H. Bluhm
David H. Bluhm
Assistant Secretary
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act
of 1939, the undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby
consents that reports of examination of the undersigned by
Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: March 9, 1994
FIRST TRUST NATIONAL ASSOCIATION
/s/ Frank P. Leslie III
Frank P. Leslie III
Assistant Vice President
