Exhibit 4.7
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CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION,
Trustee
Subordinated Indenture
Dated as of March 10, 1994
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CROSS REFERENCE SHEET
Subordinated Indenture
Dated March 10, 1994
<PAGE>
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.
<PAGE>
TABLE OF CONTENTS
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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
<PAGE>
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 Signatory
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 signatories,
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 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 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: /s/ James P. O'Donnell
Title: Vice President,
Finance and Treasurer
[CORPORATE SEAL]
Attest:
By: /s/ Sue E. Badberg
Title: Assistant Secretary
First Trust National
Association, Trustee
By: /s/ Daniel Bluhm
Title: Vice President
[CORPORATE SEAL]
Attest:
By: /s/ Frank P. Leslie
Title: Assistant Secretary
STATE OF NEBRASKA )
) ss:
COUNTY OF DOUGLAS )
On this 10th day of March, 1994 before me personally came
James P. O'Donnell, to me personally known, who, being by me duly
sworn, did depose and say that he resides at Omaha, Nebraska, that he
is the Vice President, Finance and Treasurer 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]
/s/ Lillian Child
Notary Public
STATE OF MINNESOTA )
) ss:
COUNTY OF HENNEPIN )
On this 10th day of March, 1994 before me personally came David
Bluhm, to me personally known, who, being by me duly sworn, did depose
and say that he resides in Apple Valley, Minnesota, that he is Vice
President 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]
/s/ Martina Mendez
Notary Public
<PAGE>
==========================================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
First Supplemental Indenture
Dated as of April 20, 1994
Providing for Issuance of
9% Series A Debentures due 2043
in connection with the issuance by
ConAgra Capital, L.C. of its
9% Series A Cumulative Preferred Securities
==========================================================
<PAGE>
FIRST SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of April 20, 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, in accordance with Sections 2.1, 2.3 and 8.1 of
the Subordinated Indenture dated as of March 10, 1994, between the
Issuer and the Trustee (the "Indenture"), this Supplemental
Indenture is being entered into in order to establish the form and
terms of a series of Securities to be issued in connection with the
issuance by ConAgra Capital, L.C., an Iowa limited liability
company ("Capital"), of its 9% Series A Cumulative Preferred
Securities (the "Series A Preferred Securities");
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Supplemental Indenture to provide, among other
things, for the authentication, delivery and administration of such
series of Securities;
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplement to Indenture according to its terms
and the terms of the Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
such series of 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 such series of Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined in the Indenture. All
capitalized terms used herein without definition shall have the
meanings specified in the Indenture.
SECTION 1.2 Additional Terms Defined. As used in this
Supplemental Indenture, the additional terms set forth below shall
have the following meanings:
"Additional Interest" shall have the meaning set forth in
Section 2.8 hereof.
"Common Interests" shall mean Common Membership Interests
as defined in the Operating Agreement.
"DTC" shall mean The Depository Trust Company as initial
depositary of the Series A Debentures upon a Preferred Security
Exchange.
"Event of Default" shall (a) prior to a Preferred
Security Exchange, have the meaning set forth in Section 2.12
hereof and (b) on and after a Preferred Security Exchange, have the
meaning set forth in Section 5.1 of the Indenture.
"Expense Agreement" means the Agreement as to Expenses
and Liabilities dated as of April 20, 1994 between the Issuer and
Capital.
"Guarantee" means the Payment and Guarantee Agreement
dated as of April 20, 1994, executed and delivered by the Issuer
for the benefit of the holders from time to time of the Series A
Preferred Securities and other Preferred Interests of Capital.
"Managing Members" means HW Nebraska, Inc., a
Nebraska corporation, and CP Nebraska, Inc., a Nebraska
corporation, as managing members of Capital.
"Operating Agreement" means the Limited Liability Company
Operating Agreement dated as of March 11, 1994 by and among the
Managing Members.
"Preferred Interests" means Series Preferred Membership
Interests as defined in the Operating Agreement.
"Preferred Security Exchange" means an exchange of Series
A Debentures for Series A Preferred Securities pursuant to Section
7 of the Written Action.
"Underwriting Agreement" means the underwriting agreement
dated as of April 20, 1994, among the Issuer, Capital and Smith
Barney Shearson Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated as representatives of the several underwriters named
therein.
"Written Action" means the Written Action of the Managing
Members Pursuant to Section 3.02 of the Operating Agreement dated
April 20, 1994, establishing the terms of the Series A Preferred
Securities.
ARTICLE TWO
ISSUANCE OF 9% SERIES A DEBENTURES
SECTION 2.1 Issuance of 9% Series A Debentures. There
shall be a series of Securities designated "9% Series A Debentures
due 2043" (the "Series A Debentures") and such Series A Debentures
shall have the terms set forth in this Article Two in accordance
with the provisions of the Indenture and this Supplemental
Indenture.
SECTION 2.2 Limitation on Aggregate Principal Amount. The
aggregate principal amount of the Series A Debentures which may be
authenticated and delivered shall be limited to $100,000,000 (or up
to $115,000,000 aggregate principal amount if and to the extent the
underwriters' over-allotment option granted by the Issuer in the
Underwriting Agreement is exercised).
SECTION 2.3 Maturity of the Series A Debentures. Subject
to the provisions of Sections 2.4 and 2.5, the entire principal
amount of the Series A Debentures shall become due and payable,
together with any accrued and unpaid interest thereon, including
Additional Interest, if any, on the earlier of (a) May 31, 2043
(subject to the Issuer's right to exchange the Series A Debentures
for new debentures pursuant to Section 2.6) and (b) the date upon
which Capital shall be dissolved, wound-up or liquidated; provided
that the parenthetical to clause (a) and the entirety of clause (b)
shall be inapplicable on and after the date of any Preferred
Security Exchange.
SECTION 2.4 Mandatory Prepayment of Series A Debentures
upon redemption of Series A Preferred Securities. Notwithstanding
the provisions of Section 2.3, if Capital redeems the Series A
Preferred Securities in accordance with the terms thereof, the
Series A Debentures pertaining to the Series A Preferred Securities
shall become due and payable in a principal amount equal to the
aggregate stated liquidation preference of the Series A Preferred
Securities so redeemed, together with any and all accrued interest
thereon, including Additional Interest, if any. Any payment
pursuant to this Section 2.4 shall be made prior to 12:00 noon, New
York time, on the date fixed for such redemption or at such other
time on such earlier date as Capital and the Issuer shall agree.
SECTION 2.5 Optional Prepayment. Upon not less than 30
nor more than 60 days' prior notice, the Issuer shall have the
right to prepay the Series A Debentures relating to the Series A
Preferred Securities (together with any accrued but unpaid
interest, including Additional Interest, if any, on the portion
being prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any time
on or after May 31, 1999; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after April 20, 1994
in United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series A
Debentures for federal income tax purposes even if the Series
A Preferred Securities are exchanged for the Series A
Debentures pursuant to a Preferred Security Exchange.
SECTION 2.6 Exchange of Series A Debentures for New
Debentures. Notwithstanding the provisions of Section 2.3, prior to
a Preferred Security Exchange, in lieu of repaying the Series A
Debentures relating to the Series A Preferred Securities when due,
the Issuer may elect to exchange such Series A Debentures for new
debentures with an equal aggregate principal amount issued under
the Indenture with terms substantially identical to the Series A
Debentures; provided that the Issuer may not so elect to exchange
any Series A Debentures, unless at the time of such exchange
Capital owns all of the Series A Debentures and, as determined in
the judgment of the Managing Members and Capital's financial
advisor (selected by the Managing Members and who shall be
unaffiliated with the Issuer and shall be among the 30 largest
investment banking firms, measured by total capital, in the United
States at the time of such exchange), (a) the Issuer is not
bankrupt, insolvent or in liquidation, (b) no Event of Default or
event that with the giving of notice or the passage of time would
constitute an Event of Default on any Securities pertaining to
Preferred Interests of any series, has occurred and is continuing,
(c) the Issuer has made timely payments on the Series A Debentures
for the immediately preceding 18 months, (d) Capital is not in
arrears on payments of distributions on the Series A Preferred
Securities, (e) there is then no present reason to believe the
Issuer will be unable to make timely payment of principal and
interest on such new debentures, (f) such new debentures are being
issued 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 debentures are being issued at a rate
sufficient to provide payments equal to or greater than the amount
of distributions required under the Series A Preferred Securities,
(h) such debentures are being issued for a term that is consistent
with market circumstances and the Issuer's financial condition, (i)
immediately prior to issuing such new debentures, the senior
unsecured long-term debt of the Issuer 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 the Issuer'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 of 1933, as amended) and any subordinated
unsecured long-term debt of the Issuer or, if there is no such debt
then outstanding, the Series A Preferred Securities, 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 Interests of
the first series issued.
SECTION 2.7 Denomination and Interest on the Series A
Debentures. (a) The Series A Debentures shall be issuable as
Registered Securities in denominations of $25 and any multiple
thereof.
(b) The Series A Debentures shall bear interest at a rate
of 9% per annum accruing from April 27, 1994 or from the most
recent Interest Payment Date (as defined below) to which interest
has been paid or provided for on the Series A Debentures. To the
extent allowed by law, the Issuer will also pay interest on overdue
installments of principal and interest at such rate. The amount of
interest payable for any full monthly interest period shall be
computed on the basis of twelve 30-day months and a 360-day year
and, for any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days elapsed
in such period. Such interest shall be payable monthly on the last
day (an "Interest Payment Date") of each calendar month, commencing
on May 31, 1994 to the holder or holders of the Series A Debenture
on the relevant record date (each, a "Record Date"), which shall be
one Business Day prior to the relevant Interest Payment Date. If
Interest Payment Date 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 (and the Record Date
for such Interest Payment Date shall be one Business Day prior to
the date on which payment is to be made), in each case with the
same force and effect as if made on such date.
SECTION 2.8 Additional Interest. If at any time following
the issuance of the Series A Preferred Securities and prior to a
Preferred Security Exchange, Capital shall be required to pay, with
respect to its income derived from the interest payments on the
Series A Debentures relating to the Series A Preferred Securities,
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, the
Issuer will pay as interest such additional amounts ("Additional
Interest") as may be necessary in order that the net amounts
received and retained by Capital after the payment of such taxes,
duties, assessments or governmental charges shall result in
Capital's having such funds as it would have had in the absence of
the payment of such taxes, duties, assessments or governmental
charges.
SECTION 2.9 Extension of Interest Period. Notwithstanding
the provisions of Section 2.7 hereof, the Issuer shall have the
right at any time or times during the term of the Series A
Debentures, so long as the Issuer is not in default in the payment
of interest under any of the Securities, to extend the interest
payment period for the Series A Debentures up to 18 months;
provided that at the end of such period the Issuer shall pay all
interest then accrued and unpaid (together with interest thereon at
the rate specified for the Series A Debentures to the extent
permitted by applicable law); provided further that, during any
such extended interest period, neither the Issuer nor any majority
owned subsidiary of the Issuer 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 the Issuer'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 the Series A Debentures if an extended interest period
of identical length is simultaneously selected for all Securities.
Prior to the termination of any such extended interest payment
period for the Series A Debentures, the Issuer may further extend
the interest payment period for the Series A Debentures; provided
that such extended interest payment period for the Series A
Debentures together with all such further extensions thereof, may
not exceed 18 months; and provided further that any such further
extended interest period may only be selected with respect to the
Series A Debentures if a further extended interest period of
identical length is simultaneously selected for all Securities.
Following the termination of any extended interest payment period,
if the Issuer has paid all accrued and unpaid interest required by
the Debentures for such period, then the Issuer shall have the
right to again extend the interest payment period up to 18 months
as herein described. Prior to any Preferred Security Exchange, the
Issuer shall give Capital notice of its selection of any extended
interest payment period one Business Day prior to the earlier of
(i) the date Capital declares the related distribution to holders
of the Series A Preferred Securities or (ii) the date Capital is
required to give notice of the record or payment date of such
related distribution to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Series
A Preferred Securities, but in any event not less than two Business
Days prior to such record date; the Issuer shall cause Capital to
give such notice of the Issuer's selection of any extended interest
payment period to all holders of such Series A Preferred
Securities. After any Preferred Security Exchange, the Issuer shall
give the Holders of the Series A Debentures notice of its selection
of any extended interest payment prior to the date it is required
to give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable
self-regulatory organization, but in any event not less than two
Business Days prior to such Record Date.
SECTION 2.10 Set-off. Notwithstanding anything to the
contrary herein, prior to any Preferred Security Exchange the
Issuer shall have the right to set off any payment it is otherwise
required to make hereunder with and to the extent the Issuer has
theretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee.
SECTION 2.11 Certain Covenants. (a) So long as the Series
A Preferred Securities remain outstanding, neither the Issuer nor
any majority-owned subsidiary of the Issuer shall declare or pay
any dividend on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Issuer'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 the Issuer'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
Issuer is in default with respect to its payment obligations under
the Guarantee or the Expense Agreement or there shall have occurred
an Event of Default or any event that, with the giving of notice or
the lapse of time or both, would constitute an Event of Default
under the Securities.
(b) So long as the Series A Preferred Securities remain
outstanding, the Issuer shall (i) not cause or permit any Common
Interests to be transferred, (ii) maintain direct or indirect
ownership of all outstanding securities in Capital other than the
Preferred Interests of any series and any other securities
permitted to be issued by Capital that would not cause Capital to
become an "investment company" under the Investment Company Act of
1940, as amended, (iii) cause at least 21% of the total value of
Capital and at least 21% of all interests in the capital, income,
gain, loss, deduction and credit of Capital to be represented by
Common Interests, (iv) not voluntarily dissolve, windup or
liquidate Capital or either of the Managing Members, (v) cause HW
Nebraska, Inc. and CP Nebraska, Inc. to remain the Managing Members
of Capital and timely perform all of their respective duties as
Managing Members of Capital, and (vi) use reasonable efforts to
cause 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 the Issuer may permit Capital, solely for
the purpose of changing its domicile or avoiding tax consequences
adverse to the Issuer, Capital or holders of Series A Preferred
Securities, to consolidate or merge with or into a limited
liability company or a limited partnership formed under the laws of
any state of the United States of America; provided that (1) such
successor limited liability company or limited partnership (x)
expressly assumes all of the obligations of Capital under the
Series A Preferred Securities and other series of Preferred
Interests then outstanding or (y) substitutes for the Series A
Preferred Securities and other series of Preferred Interests then
outstanding other securities having substantially the same terms as
the Series A Preferred Securities and such other Preferred
Interests (the "Successor Securities") so long as the Successor
Securities rank, with respect to participation in the profits and
assets of such successor entity, at least as senior as the Series A
Preferred Securities and such other Preferred Interests rank with
respect to participation in the profits and assets of Capital, (2)
the Issuer expressly acknowledges such successor as the holder of
all of the Series A Debentures and other series of debentures
issued under the Indenture then outstanding, (3) 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, (4) the
holders of Series A Preferred Securities and such other Preferred
Interests do not suffer any adverse tax consequences as a result of
such merger or consolidation, (5) such merger or consolidation does
not cause any Preferred Interests to be downgraded by any
"nationally recognized statistical rating organization," as that
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 (6) following such merger or consolidation, neither
the Issuer nor such successor limited liability company or limited
partnership will be an "investment company" for purposes of the
Investment Company Act of 1940, as amended.
(c) So long as the Series A Preferred Securities
remain outstanding, the Issuer shall not consolidate with or merge
into any other Person or sell its property and assets as, or
substantially as, an entirety to any Person and shall not permit
any Person to merge into or consolidate with the Issuer unless (i)
in case the Issuer shall consolidate with or merge into another
Person or sell its properties and assets as, or substantially as,
an entirety to any Person, the Person formed by such consolidation
or into which the Issuer is merged or the Person which purchases
the properties and assets of the Issuer as, or substantially, as an
entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States
of America, any State or the District of Columbia, and shall
expressly assume the Issuer's obligations under the Indenture, this
Supplemental Indenture and the Series A Debentures and (ii)
immediately after giving effect to the transaction no Event of
Default shall have occurred and be continuing.
(d) So long as the Series A Preferred Securities
remain outstanding, the provisions of Sections 2.11(b) and (c)
shall remain in full force and effect notwithstanding satisfaction
and discharge of the Indenture pursuant to Section 10.1 thereof.
SECTION 2.12 Events of Default; Remedies. Prior to any
Preferred Security Exchange, "Event of Default" means any one of
the following events:
(a) failure to pay when due any interest under any
Securities, including any Additional Interest, and such failure
shall continue for a period of 30 days (whether or not payment is
prohibited by the provisions contained in Article Thirteen of the
Indenture or otherwise); provided that a valid extension of the
interest payment period by the Issuer shall not constitute a
default in the payment of interest for this purpose;
(b) failure to pay when due any principal under any
Securities (whether or not payment is prohibited by the provisions
contained in Article Thirteen of the Indenture or otherwise);
(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 (other than a covenant or warranty in
respect of the Series A Debentures a default in the performance or
breach of which is elsewhere in this Section specifically dealt
with) or contained in the Indenture, this Supplemental Indenture or
the Series A Debentures, and continuance of such default or breach
for a period of 90 days after there as been given, by registered or
certified mail, to the Issuer by the Trustee or any Holder hereof,
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;
(d) the dissolution, or winding up or liquidation
of Capital;
(e) 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
(f) 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.
If an Event of Default shall occur and be continuing,
then Capital will have the right (i) to declare the principal of
and the interest on the Series A Debentures (including any
Additional Interest and any interest subject to an extension
election) and any other amounts payable under the Series A
Debentures to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series A Debentures to the contrary
notwithstanding and (ii) to enforce its other rights hereunder and
thereunder. Capital may not accelerate the principal amount of any
Series A Debenture unless the principal amount of all Securities is
accelerated.
If an Event of Default specified in clauses (d), (e) or
(f) above shall have occurred, the principal of and interest on the
Series A Debentures shall thereupon and concurrently become due and
payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived, anything in the
Indenture, this Supplemental Indenture or the Series A Debentures
to the contrary notwithstanding.
If an Event of Default specified in clause (a) or (b)
above shall have occurred and be continuing and Capital shall have
failed to pay any distributions on the Series A Preferred
Securities when due (other than as a result of any valid extension
of the interest payment period by the Issuer for the Series A
Debentures Securities) or to pay any portion of the redemption
price of the Series A Preferred Securities called for redemption,
then any Holder of Series A Preferred Securities may, as set forth
in the terms of the Series A Preferred Securities, enforce directly
against the Issuer Capital's right hereunder to receive payments of
principal and interest on the Series A Debentures relating to such
Series A Preferred Securities but only in an amount sufficient to
enable Capital to pay such distributions or redemption price.
The Issuer expressly acknowledges that under the terms of
Section 3.02(f) of the Operating Agreement and Section 9 of the
Written Action, the holders of the outstanding Series A Preferred
Securities together with the holder of other Preferred Interests
shall in certain circumstances have the right to appoint a trustee,
which trustee shall be authorized to exercise Capital's creditor
rights under the Indenture, this Supplemental Indenture and the
Series A Debentures and the Issuer agrees to cooperate with such
trustee; provided that nay trustee so appointed shall vacate office
immediately in accordance with Section 3.02(f) of the Operating
Agreement if all Events of Default giving rise to such right of
appointment have been cured by the Issuer.
Except as provided in this Section 2.12, Holders of
Series A Preferred Securities shall have no rights to enforce any
obligations of the Issuer under the Indenture, this Supplemental
Indenture or the Series A Debentures.
On and after a Preferred Security Exchange, the
provisions of Article Five of the Indenture, including without
limitation the definition of an "Event of Default", shall apply to
the Series A Debentures and this Section 2.12 shall be of no
further force or effect.
SECTION 2.13 Book-Entry-Only Issuance; The Depository
Trust Company. On and after a Preferred Security Exchange, the
provisions of this Section 2.13 shall apply.
(a) DTC, New York, New York, will act as securities
depository for the Series A Debentures. The Series A Debentures
will be issued as one or more global certificates only as
fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). Such global certificates shall bear a
legend in the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS DEBENTURE IS IN GLOBAL FORM WITHIN THE MEANING OF
THE INDENTURE AND SUPPLEMENTAL INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF DTC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
DEBENTURES IN CERTIFICATED FORM, THIS DEBENTURE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY
A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.
or any other legend then customary for securities of a
similar nature held by DTC.
(b) Redemption notices shall be sent to Cede & Co. If
less then all of the Series A Debentures are being redeemed, such
securities shall be redeemed in accordance with DTC's then current
practice.
(c) DTC may discontinue providing its services as
securities depository with respect to the Series A Debentures by
giving reasonable notice to the Issuer as provided in the agreement
between the Issuer and DTC. Under such circumstances, if a
successor securities depository is not obtained, the Issuer at its
expense shall cause certificates for Series A Debentures to be
printed and delivered as promptly as practicable.
SECTION 2.14 Listing on the New York Stock Exchange.
Prior to a Preferred Security Exchange, the Issuer will use its
best efforts to have the Series A Debentures listed on the same
exchange on which the Series A Preferred Securities are listed.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall be
deemed given by a party hereto if in writing and delivered
personally or by telegram or facsimile transmission or by
registered or certified mail (return receipt requested) to the
other party at the following address for such party (or at such
other address as shall be specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The Issuer shall
have the right at all times to assign any of its rights or
obligations under the Indenture, this Supplemental Indenture and
the Series A Debentures to a direct or indirect wholly owned
subsidiary of the Issuer(other than to any Managing Member);
provided that, in the event of any such assignment, the Issuer
shall remain jointly and severally liable for all such obligations;
and provided further that in the event of an assignment prior to a
Preferred Security Exchange the Issuer shall have received an
opinion of nationally recognized tax counsel that such assignment
shall not constitute a taxable event of the holders of Series A
Preferred Securities for federal income tax purposes. Except as
otherwise provided in this Supplemental Indenture, Capital may not
assign any of its rights under the Series A Debentures without the
prior written consent of the Issuer. Subject to the foregoing, the
Indenture, this Supplemental Indenture and the Series A Debentures
shall be binding upon and inure to the benefit of the Issuer,
Capital, the Holders from time to time of the Series A Debentures
and their respective successors and assigns. Except as provided in
this Section 3.2 or elsewhere in this Supplemental Indenture, none
of the Indenture, this Supplemental Indenture nor the Series A
Debentures may be assigned by either the Issuer or Capital and any
assignment by the Issuer or Capital in contravention of this
Section 3.2 shall be null and void.
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL INDENTURE
AND THE SERIES A DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.4 Counterparts. This Supplemental Indenture may
be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and
the same instrument.
Section 3.5 Amendments. This Supplemental Indenture may
be amended as set forth in Article Eight of the Indenture.
Notwithstanding the foregoing, so long as any Series A Preferred
Securities shall remain outstanding, (i) no amendment to the
provisions of the Indenture, this Supplemental Indenture or the
Series A Debentures shall be made that adversely affects the
holders of any Preferred Interests then outstanding, or terminate
the Indenture, this Supplemental Indenture or the Series A
Debentures, without in each case the prior consent of holders of
66-2/3% in stated liquidation preference of all Preferred Interests
then outstanding, unless and until all Securities and all accrued
and unpaid interest thereon (including Additional Interest, if any)
shall have been paid in full and (ii) without the prior consent of
holders of 100% in stated liquidation preference of all Series A
Preferred Securities then outstanding, no amendment shall be made
to the provisions of this clause (ii) of Section 3.5 or to (a)
extend the stated maturity of the principal of any Debenture, 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 or interest thereon is payable or impair the
right to institute suit for the enforcement of any payment on any
Debenture when due or (b) reduce the aforesaid percentage in
principal amount of Debentures of any series the consent of the
holders of which is required for any such modification. Any
required consent of holders of Preferred Interests pursuant to this
Section 3.5 shall be in writing or shall be obtained at a meeting
of Preferred Interestholders convened in the manner specified in
3.02(e) of the Operating Agreement.
Section 3.6 Waivers. Capital may not waive compliance or
waive any default in compliance by the Issuer of any covenant or
other term in the Indenture, this Supplemental Indenture or the
Series A Debentures without the approval of the same percentage of
holders of Preferred Interests, obtained in the same manner, as
would be required for an amendment of the Indenture, this
Supplemental Indenture or the Series A Debentures to the same
effect; provided that if no approval would be required for any such
amendment, then Capital may waive such compliance or default in any
manner that the parties shall agree.
Section 3.7 Third Party Beneficiaries. The Issuer hereby
acknowledges that until a Preferred Security Exchange, the holders
from time to time of the Series A Preferred Securities shall
expressly be third party beneficiaries of this Supplemental
Indenture.
Section 3.8 Amendment to Indenture. Pursuant to Section
8.1 of the Indenture, Section 8.2 of the Indenture is hereby
amended for purposes of any and all Securities, including without
limitation the Series A Debentures, issued under the Indenture by
substituting the phrase "of not less than 66-2/3%" for the phrase
"of not less than a majority" in the first clause of such Section
8.2.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the
date and year first above written.
CONAGRA, INC.
By: /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President, Finance
and Treasurer
[SEAL]
Attest:
/s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ David H. Bluhm
Name: David H. Bluhm
Title: Vice President
[SEAL]
Attest:
/s/ Frank P. Leslie
Name: Frank P. Leslie
Title: Assistant Secretary
<PAGE>
Exhibit A
[Form of Series A Debenture]
No. $
ConAgra, Inc.
____% Series A Debentures due 2043
ConAgra, Inc., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
or registered assigns, at the office or agency of the Issuer
in The City of New York, the principal sum of
Dollars
on 2043, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, at a rate of ___%
per annum accruing from
, 1994 or from the most recent Interest Payment Date (as
defined below) to which interest has been paid or provided for on
the Series A Debentures. To the extent allowed by law, the Issuer
will also pay interest on overdue installments of principal and
interest at such rate. The amount of interest payable for any full
monthly interest period shall be computed on the basis of twelve
30-day months and a 360-day year and, for any period shorter than a
full monthly interest period, shall be computed on the basis of the
actual number of days elapsed in such period. Such interest shall
be payable monthly on the last day (an "Interest Payment Date") of
each calendar month, commencing on May 31, 1994 to the holder or
holders of this Debenture on the relevant record date (each, a
"Record Date"), which shall be one Business Day prior to the
relevant Interest Payment Date. If Interest Payment Date 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 (and the Record Date for such Interest
Payment Date shall be one Business Day prior to the date on which
payment is to be made), in each case with the same force and effect
as if made on such date. If at any time following the issuance of
the Series A Preferred Securities and prior to a Preferred Security
Exchange, Capital shall be required to pay, with respect to its
income derived from the interest payments on the Series A
Debentures relating to the Series A Preferred Securities, 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, the
Issuer will pay as interest such additional amounts ("Additional
Interest") as may be necessary in order that the net amounts
received and retained by Capital after the payment of such taxes,
duties, assessments or governmental charges shall result in
Capital's having such funds as it would have had in the absence of
the payment of such taxes, duties, assessments or governmental
charges. Notwithstanding the forgoing, the Issuer shall have the
right at any time or times during the term of the Series A
Debentures, so long as the Issuer is not in default in the payment
of interest under any of the Securities, to extend the interest
payment period for the Series A Debentures up to 18 months;
provided that at the end of such period the Issuer shall pay all
interest then accrued and unpaid (together with interest thereon at
the rate specified for the Series A Debentures to the extent
permitted by applicable law); provided further that, during any
such extended interest period, neither the Issuer nor any majority
owned subsidiary of the Issuer 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 the Issuer'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 the Series A Debentures if an extended interest period
of identical length is simultaneously selected for all Securities.
Prior to the termination of any such extended interest payment
period for the Series A Debentures, the Issuer may further extend
the interest payment period for the Series A Debentures; provided
that such extended interest payment period for the Series A
Debentures together with all such further extensions thereof, may
not exceed 18 months; and provided further that any such further
extended interest period may only be selected with respect to the
Series A Debentures if a further extended interest period of
identical length is simultaneously selected for all Securities.
Following the termination of any extended interest payment period,
if the Issuer has paid all accrued and unpaid interest required by
the Debentures for such period, then the Issuer shall have the
right to again extend the interest payment period up to 18 months
as herein described. Prior to any Preferred Security Exchange, the
Issuer shall give Capital notice of its selection of any extended
interest payment period one Business Day prior to the earlier of
(i) the date Capital declares the related distribution to the
holders of the Series A Preferred Securities or (ii) the date
Capital is required to give notice of the record or payment date of
such related distribution to the holders of the Series A Preferred
Securities to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Series A
Preferred Securities, but in any event not less than two Business
Days prior to such record date; the Issuer shall cause Capital to
give such notice of the Issuer's selection of any extended interest
payment period to all holders of such Series A Preferred
Securities. After any Preferred Security Exchange, the Issuer shall
give the Holders of the Series A Debentures notice of its selection
of any extended interest payment prior to the date it is required
to give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable
self-regulatory organization, but in any event not less than two
Business Days prior to such Record Date.
Reference is made to the further provisions of this
Debenture set forth below. Such further provisions shall for all
purposes have the same effect as though fully set forth at this
place.
This Debenture shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon
shall have been signed by the Trustee under the Indenture referred
to below.
This Debenture is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the
Issuer (hereinafter called the "Securities") of the series
hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of March 10, 1994 and a
Supplemental Indenture dated as of , 1994 (herein collectively
called the "Indenture"), duly executed and delivered by the Issuer
and First Trust National Association, as Trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the holders of the
Securities. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase
or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Debenture is one of a series designated as
the "___% Series A Debentures due 2043" (the "Series A Debentures")
of the Issuer, limited in aggregate principal amount to
$___________ (or up to $ aggregate principal amount if and to the
extent the underwriters' over-allotment option granted by the
Issuer in the Underwriting Agreement is exercised).
In case an Event of Default with respect to the Series A
Debentures, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the Holders of not less than
66-2/3% in aggregate principal amount of the Securities at the time
Outstanding (as defined in the Indenture) of all series to be
affected (voting as one class), evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of each such
series; provided, however, that no such supplemental indenture
shall (i) extend the final maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of any interest thereon, or impair or
affect the rights of any Holder to institute suit for the payment
thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities,
the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each
Security affected. It is also provided in the Indenture that, with
respect to certain defaults or Events of Default regarding the
Securities of any series, prior to any declaration accelerating the
maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or,
in the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the Holders of
all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence shall
not, however, apply to a continuing default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of this
Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders
and owners of this Debenture and any Debenture which may be issued
in exchange or substitution herefor, irrespective of whether or not
any notation thereof is made upon this Debenture or such other
Debentures.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Debenture
in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Series A Debentures are issuable in registered form
without coupons in denominations of $25 and any integral multiple
of $25 at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, and in the manner and subject to
the limitations provided in the Indenture, but without the payment
of any service charge, notes may be exchanged for a like aggregate
principal amount of Series A Debentures of other authorized
denominations.
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series A
Debentures relating to the Series A Preferred Securities (together
with any accrued but unpaid interest, including Additional
Interest, if any, on the portion being prepaid), without premium or
penalty,
(i) in whole or in part, as the case may be, at any time
on or after , 1999; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after , 1994 in United
States law (including the enactment or imminent enactment of
any legislation, the publication of any judicial decisions or
regulatory rulings or a change in the official position or in
the interpretation of law or regulations), there exists more
than an insubstantial risk that the Issuer will be precluded
from deducting the interest on the Series A Debentures for
federal income tax purposes even if the Series A Preferred
Securities are exchanged for the Series A Debentures pursuant
to a Preferred Security Exchange, all as further provided in
the Indenture.
The Series A Debentures are, to the extent and in the
manner provided in the Indenture, expressly subordinate and junior
in right of payment of all Senior Indebtedness as provided in the
Indenture, and each holder of this Debenture, by his acceptance
hereof, agrees to and shall be bound by such provisions of the
Indenture and authorizes and directs the Trustee in his behalf to
take such action as appropriate to effectuate such subordination
and appoints the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as 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.
Upon due presentment for registration of transfer of this
Debenture at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, a new Debenture or Debentures of
authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to
the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent of the
Issuer or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Debenture (whether or not this
Note shall be overdue and notwithstanding any notation of ownership
or other writing hereon), for the purpose of receiving payment of,
or on account of, the principal hereof and premium, if any, and
subject to the provisions on the face hereof, interest hereon, and
for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, 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 hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the
Indenture.
IN WITNESS WHEREOF, ConAgra, Inc. has caused this
instrument to be signed by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
Dated:
ConAgra, Inc.
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
First Trust National
Association, as Trustee
By__________________________
Authorized Officer
<PAGE>
==========================================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
Second Supplemental Indenture
Dated as of April 20, 1994
Providing for Issuance of
9% Series AA Debentures due 2043
in connection with the issuance by
ConAgra Capital, L.C. of its
Common Interests
==========================================================
<PAGE>
SECOND SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of April 20, 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, in accordance with Sections 2.1, 2.3 and 8.1 of
the Subordinated Indenture dated as of March 10, 1994, between the
Issuer and the Trustee (the "Indenture"), this Supplemental
Indenture is being entered into in order to establish the form and
terms of a series of Securities to be issued in connection with the
issuance by ConAgra Capital, L.C., an Iowa limited liability
company ("Capital"), of its Common Interests (the "Common
Interests");
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Supplemental Indenture to provide, among other
things, for the authentication, delivery and administration of such
series of Securities;
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplement to Indenture according to its terms
and the terms of the Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
such series of 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 such series of Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined in the Indenture. All
capitalized terms used herein without definition shall have the
meanings specified in the Indenture.
SECTION 1.2 Additional Terms Defined. As used in this
Supplemental Indenture, the additional terms set forth below shall
have the following meanings:
"Additional Interest" shall have the meaning set forth in
Section 2.8 hereof.
"Common Interests" shall mean Common Membership Interests
as defined in the Operating Agreement.
"DTC" shall mean The Depository Trust Company as initial
depositary of the Series AA Debentures upon a Preferred Security
Exchange.
"Event of Default" shall (a) prior to a Preferred
Security Exchange, have the meaning set forth in Section 2.12
hereof and (b) on and after a Preferred Security Exchange, have the
meaning set forth in Section 5.1 of the Indenture.
"Expense Agreement" means the Agreement as to Expenses
and Liabilities dated as of April 20, 1994 between the Issuer and
Capital.
"Guarantee" means the Payment and Guarantee Agreement
dated as of April 20, 1994, executed and delivered by the Issuer
for the benefit of the holders from time to time of the Common
Interests and other Preferred Interests of Capital.
"Managing Members" means HW Nebraska, Inc., a Nebraska
corporation, and CP Nebraska, Inc., a Nebraska corporation, as
managing members of Capital.
"Operating Agreement" means the Limited Liability Company
Operating Agreement dated as of March 11, 1994 by and among the
Managing Members.
"Preferred Interests" means Series Preferred Membership
Interests as defined in the Operating Agreement.
"Preferred Security Exchange" means an exchange of 9%
Series A Debentures for 9% Series A Preferred Securities pursuant
to Section 7 of the Written Action.
"Series A Debentures" shall mean the 9% Series A
Debentures as defined in the First Supplemental Indenture dated
April 20, 1994.
"9% Series A Preferred Securities" shall mean 9% Series A
Preferred Securities as defined in the Written Action.
"Underwriting Agreement" means the underwriting agreement
dated as of April 20, 1994, among the Issuer, Capital and Smith
Barney Shearson Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated as representatives of the several underwriters named
therein.
"Written Action" means the Written Action of the Managing
Members Pursuant to Section 3.02 of the Operating Agreement dated
April 20, 1994, establishing the terms of the Preferred Interests.
ARTICLE TWO
ISSUANCE OF 9% SERIES AA DEBENTURES
SECTION 2.1 Issuance of 9% Series AA Debentures. There
shall be a series of Securities designated "9% Series AA Debentures
due 2043" (the "Series AA Debentures") and such Series AA
Debentures shall have the terms set forth in this Article Two in
accordance with the provisions of the Indenture and this
Supplemental Indenture.
SECTION 2.2 Limitation on Aggregate Principal Amount. The
aggregate principal amount of the Series AA Debentures which may be
authenticated and delivered shall be limited to $26,600,000 (or up
to $30,590,000 aggregate principal amount if and to the extent the
underwriters' over-allotment option granted by the Issuer in the
Underwriting Agreement is exercised).
SECTION 2.3 Maturity of the Series AA Debentures. Subject
to the provisions of Sections 2.4 and 2.5, the entire principal
amount of the Series AA Debentures shall become due and payable,
together with any accrued and unpaid interest thereon, including
Additional Interest, if any, on the earlier of (a) May 31, 2043
(subject to the Issuer's right to exchange the Series AA Debentures
for new debentures pursuant to Section 2.6) and (b) the date upon
which Capital shall be dissolved, wound-up or liquidated; provided
that the parenthetical to clause (a) and the entirety of clause (b)
shall be inapplicable on and after the date of any Preferred
Security Exchange.
SECTION 2.4 Mandatory Prepayment of Series AA Debentures
upon redemption of Common Interests. Notwithstanding the provisions
of Section 2.3, if Capital redeems the Preferred Interests in
accordance with the terms thereof, the Series AA Debentures shall
become due and payable in a principal amount together with any and
all accrued interest thereon, including Additional Interest, if
any. Any payment pursuant to this Section 2.4 shall be made prior
to 12:00 noon, New York time, on the date fixed for such redemption
or at such other time on such earlier date as Capital and the
Issuer shall agree.
SECTION 2.5 Optional Prepayment. Upon not less than 30
nor more than 60 days' prior notice, the Issuer shall have the
right to prepay the Series AA Debentures (together with any accrued
but unpaid interest, including Additional Interest, if any, on the
portion being prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any time
on or after May 31, 1999; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after April 20, 1994
in United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series AA
Debentures for federal income tax purposes.
SECTION 2.6 Exchange of Series AA Debentures for New
Debentures. Notwithstanding the provisions of Section 2.3, prior to
a Preferred Security Exchange, in lieu of repaying the Series AA
Debentures when due, the Issuer may elect to exchange such Series
AA Debentures for new debentures with an equal aggregate principal
amount issued under the Indenture with terms substantially
identical to the Series AA Debentures; provided that the Issuer may
not so elect to exchange any Series AA Debentures, unless at the
time of such exchange Capital owns all of the Series AA Debentures
and, as determined in the judgment of the Managing Members and
Capital's financial advisor (selected by the Managing Members and
who shall be unaffiliated with the Issuer and shall be among the 30
largest investment banking firms, measured by total capital, in the
United States at the time of such exchange), (a) the Issuer is not
bankrupt, insolvent or in liquidation, (b) no Event of Default or
event that with the giving of notice or the passage of time would
constitute an Event of Default on any Securities pertaining to
Preferred Interests of any series, has occurred and is continuing,
(c) the Issuer has made timely payments on the Series A Debentures
for the immediately preceding 18 months, (d) Capital is not in
arrears on payments of distributions on the 9% Series A Preferred
Securities, (e) there is then no present reason to believe the
Issuer will be unable to make timely payment of principal and
interest on such new debentures, (f) such new debentures are being
issued 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 debentures are being issued at a rate
sufficient to provide payments equal to or greater than the amount
of distributions required under the Common Interests, (h) such
debentures are being issued for a term that is consistent with
market circumstances and the Issuer's financial condition, (i)
immediately prior to issuing such new debentures, the senior
unsecured long-term debt of the Issuer 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 the Issuer'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 of 1933, as amended) and any subordinated
unsecured long-term debt of the Issuer or, if there is no such debt
then outstanding, the Preferred Interests, 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 Interests of
the first series issued.
SECTION 2.7 Denomination and Interest on the Series AA
Debentures. (a) The Series AA Debentures shall be issuable as
Registered Securities in denominations of $25 and any multiple
thereof.
(b) The Series AA Debentures shall bear interest at a
rate of 9% per annum accruing from April 27, 1994 or from the most
recent Interest Payment Date (as defined below) to which interest
has been paid or provided for on the Series AA Debentures. To the
extent allowed by law, the Issuer will also pay interest on overdue
installments of principal and interest at such rate. The amount of
interest payable for any full monthly interest period shall be
computed on the basis of twelve 30-day months and a 360-day year
and, for any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days elapsed
in such period. Such interest shall be payable monthly on the last
day of each calendar month (an "Interest Payment Date") commencing
on May 31, 1994 to the holder or holders of the Series AA Debenture
on the relevant record date (each, a "Record Date"), which shall be
one Business Day prior to the relevant Interest Payment Date. If
Interest Payment Date 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 (and the Record Date
for such Interest Payment Date shall be one Business Day prior to
the date on which payment is to be made), in each case with the
same force and effect as if made on such date.
SECTION 2.8 Additional Interest. If at any time following
the issuance of the Common Interests, Capital shall be required to
pay, with respect to its income derived from the interest payments
on the Series AA Debentures, 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, the Issuer will pay as interest such
additional amounts ("Additional Interest") as may be necessary in
order that the net amounts received and retained by Capital after
the payment of such taxes, duties, assessments or governmental
charges shall result in Capital's having such funds as it would
have had in the absence of the payment of such taxes, duties,
assessments or governmental charges.
SECTION 2.9 Extension of Interest Period. Notwithstanding
the provisions of Section 2.7 hereof, the Issuer shall have the
right at any time or times during the term of the Series AA
Debentures, so long as the Issuer is not in default in the payment
of interest under any of the Securities, to extend the interest
payment period for the Series AA Debentures up to 18 months;
provided that at the end of such period the Issuer shall pay all
interest then accrued and unpaid (together with interest thereon at
the rate specified for the Series AA Debentures to the extent
permitted by applicable law); provided further that, during any
such extended interest period, neither the Issuer nor any majority
owned subsidiary of the Issuer 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 the Issuer'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 the Series AA Debentures if an extended interest period
of identical length is simultaneously selected for all Securities.
Prior to the termination of any such extended interest payment
period for the Series AA Debentures, the Issuer may further extend
the interest payment period for the Series AA Debentures; provided
that such extended interest payment period for the Series AA
Debentures together with all such further extensions thereof, may
not exceed 18 months; and provided further that any such further
extended interest period may only be selected with respect to the
Series AA Debentures if a further extended interest period of
identical length is simultaneously selected for all Securities.
Following the termination of any extended interest payment period,
if the Issuer has paid all accrued and unpaid interest required by
the Series AA Debentures for such period, then the Issuer shall
have the right to again extend the interest payment period up to 18
months as herein described. The Issuer shall give Capital notice of
its selection of any extended interest payment period one Business
Day prior to the earlier of (i) the date Capital declares the
related distribution, if any, to holders of the Common Interests or
(ii) the date Capital is required to give notice of the record or
payment date of such related distribution to the New York Stock
Exchange or other applicable self-regulatory organization or to
holders of the Common Interests, but in any event not less than two
Business Days prior to such record date.
SECTION 2.10 Set-off. Notwithstanding anything to the
contrary herein, prior to any Preferred Security Exchange the
Issuer shall have the right to set off any payment it is otherwise
required to make hereunder with and to the extent the Issuer has
theretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee provided Issuer shall not
affect any set off with respect to the Series AA Debentures until
all payments required under the Series A Debentures have been made.
SECTION 2.11 Certain Covenants. (a) So long as the
Preferred Interests remain outstanding, neither the Issuer nor any
majority-owned subsidiary of the Issuer shall declare or pay any
dividend on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Issuer'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 the Issuer'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
Issuer is in default with respect to its payment obligations under
the Guarantee or the Expense Agreement or there shall have occurred
an Event of Default or any event that, with the giving of notice or
the lapse of time or both, would constitute an Event of Default
under the Securities.
(b) So long as the Preferred Interests remain
outstanding, the Issuer shall (i) not cause or permit any Common
Interests to be transferred, (ii) maintain direct or indirect
ownership of all outstanding securities in Capital other than the
Preferred Interests of any series and any other securities
permitted to be issued by Capital that would not cause Capital to
become an "investment company" under the Investment Company Act of
1940, as amended, (iii) cause at least 21% of the total value of
Capital and at least 21% of all interests in the capital, income,
gain, loss, deduction and credit of Capital to be represented by
Common Interests, (iv) not voluntarily dissolve, windup or
liquidate Capital or either of the Managing Members, (v) cause HW
Nebraska, Inc. and CP Nebraska, Inc. to remain the Managing Members
of Capital and timely perform all of their respective duties as
Managing Members of Capital, and (vi) use reasonable efforts to
cause 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 the Issuer may permit Capital, solely for
the purpose of changing its domicile or avoiding tax consequences
adverse to the Issuer, Capital or holders of Preferred Interests,
to consolidate or merge with or into a limited liability company or
a limited partnership formed under the laws of any state of the
United States of America; provided that (1) such successor limited
liability company or limited partnership (x) expressly assumes all
of the obligations of Capital under the Common Interests and other
series of Preferred Interests then outstanding or (y) substitutes
for the Common Interests and any series of Preferred Interests then
outstanding other securities having substantially the same terms as
the Common Interests and any such Preferred Interests (the
"Successor Securities") so long as the Successor Securities rank,
with respect to participation in the profits and assets of such
successor entity, at least as senior as the Common Interests and
any such Preferred Interests rank, respectively, with respect to
participation in the profits and assets of Capital, (2) the Issuer
expressly acknowledges such successor as the holder of all of the
Series AA Debentures and other series of debentures issued under
the Indenture then outstanding, (3) 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, (4) the holders
of Common Interests and any such Preferred Interests do not suffer
any adverse tax consequences as a result of such merger or
consolidation, (5) such merger or consolidation does not cause any
Preferred Interests to be downgraded by any "nationally recognized
statistical rating organization," as that 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 (6) following
such merger or consolidation, neither the Issuer nor such successor
limited liability company or limited partnership will be an
"investment company" for purposes of the Investment Company Act of
1940, as amended.
(c) So long as the Common Interests remain
outstanding, the Issuer shall not consolidate with or merge into
any other Person or sell its property and assets as, or
substantially as, an entirety to any Person and shall not permit
any Person to merge into or consolidate with the Issuer unless (i)
in case the Issuer shall consolidate with or merge into another
Person or sell its properties and assets as, or substantially as,
an entirety to any Person, the Person formed by such consolidation
or into which the Issuer is merged or the Person which purchases
the properties and assets of the Issuer as, or substantially, as an
entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States
of America, any State or the District of Columbia, and shall
expressly assume the Issuer's obligations under the Indenture, this
Supplemental Indenture and the Series AA Debentures and (ii)
immediately after giving effect to the transaction no Event of
Default shall have occurred and be continuing.
(d) So long as the Series A Preferred Securities
remain outstanding, the provisions of Sections 2.11(b) and 9c)
shall remain in full force and effect notwithstanding satisfaction
and discharge of the Indenture pursuant to Section 10.1 thereof.
SECTION 2.12 Events of Default; Remedies. Prior to any
Preferred Security Exchange, "Event of Default" means any one of
the following events:
(a) failure to pay when due any interest under any
Securities, including any Additional Interest, and such failure
shall continue for a period of 30 days (whether or not payment is
prohibited by the provisions contained in Article Thirteen of the
Indenture or otherwise); provided that a valid extension of the
interest payment period by the Issuer shall not constitute a
default in the payment of interest for this purpose;
(b) failure to pay when due any principal under any
Securities (whether or not payment is prohibited by the provisions
contained in Article Thirteen of the Indenture or otherwise);
(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 (other than a covenant or warranty in
respect of the Series AA Debentures a default in the performance or
breach of which is elsewhere in this Section specifically dealt
with) or contained in the Indenture, this Supplemental Indenture or
the Series AA Debentures, and continuance of such default or breach
for a period of 90 days after there as been given, by registered or
certified mail, to the Issuer by the Trustee or any Holder hereof,
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;
(d) the dissolution, or winding up or liquidation of
Capital;
(e) 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
(f) 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.
If an Event of Default shall occur and be continuing,
then Capital will have the right (i) to declare the principal of
and the interest on the Series AA Debentures (including any
Additional Interest and any interest subject to an extension
election) and any other amounts payable under the Series AA
Debentures to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series AA Debentures to the contrary
notwithstanding and (ii) to enforce its other rights hereunder and
thereunder. Capital may not accelerate the principal amount of any
Series AA Debenture unless the principal amount of all Securities
is accelerated.
If an Event of Default specified in clauses (d), (e) or
(f) above shall have occurred, the principal of and interest on the
Series AA Debentures shall thereupon and concurrently become due
and payable without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived, anything in the
Indenture, this Supplemental Indenture or the Series AA Debentures
to the contrary notwithstanding.
If an Event of Default specified in clause (a) or (b)
above shall have occurred and be continuing and Capital shall have
failed to pay any distributions on the Common Interests when due
(other than as a result of any valid extension of the interest
payment period by the Issuer for the Series AA Debentures) or to
pay any portion of the redemption price of the Common Interests
called for redemption, then any Holder of Common Interests may, as
set forth in the terms of the Common Interests, enforce directly
against the Issuer Capital's right hereunder to receive payments of
principal and interest on the Series AA Debentures relating to such
Common Interests but only in an amount sufficient to enable Capital
to pay such distributions or redemption price.
Except as provided in this Section 2.12, Holders of
Common Interests shall have no rights to enforce any obligations of
the Issuer under the Indenture, this Supplemental Indenture or the
Series AA Debentures.
On and after a Preferred Security Exchange, the
provisions of Article Five of the Indenture, including without
limitation the definition of an "Event of Default", shall apply to
the Series AA Debentures and this Section 2.12 shall be of no
further force or effect.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall be
deemed given by a party hereto if in writing and delivered
personally or by telegram or facsimile transmission or by
registered or certified mail (return receipt requested) to the
other party at the following address for such party (or at such
other address as shall be specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The Issuer shall
have the right at all times to assign any of its rights or
obligations under the Indenture, this Supplemental Indenture and
the Series AA Debentures to a direct or indirect wholly owned
subsidiary of the Issuer(other than to any Managing Member);
provided that, in the event of any such assignment, the Issuer
shall remain jointly and severally liable for all such obligations;
and provided further that in the event of an assignment prior to a
Preferred Security Exchange the Issuer shall have received an
opinion of nationally recognized tax counsel that such assignment
shall not constitute a taxable event of the holders of Common
Interests for federal income tax purposes. Except as otherwise
provided in this Supplemental Indenture, Capital may not assign any
of its rights under the Series AA Debentures without the prior
written consent of the Issuer. Subject to the foregoing, the
Indenture, this Supplemental Indenture and the Series AA Debentures
shall be binding upon and inure to the benefit of the Issuer,
Capital, the Holders from time to time of the Series AA Debentures
and their respective successors and assigns. Except as provided in
this Section 3.2 or elsewhere in this Supplemental Indenture, none
of the Indenture, this Supplemental Indenture nor the Series AA
Debentures may be assigned by either the Issuer or Capital and any
assignment by the Issuer or Capital in contravention of this
Section 3.2 shall be null and void.
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL INDENTURE
AND THE Series AA Debentures SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.4 Counterparts. This Supplemental Indenture may
be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and
the same instrument.
Section 3.5 Amendments. This Supplemental Indenture may
be amended as set forth in Article Eight of the Indenture.
Notwithstanding the foregoing, so long as any Common Interests
shall remain outstanding, (i) no amendment to the provisions of the
Indenture, this Supplemental Indenture or the Series AA Debentures
shall be made that adversely affects the holders of any Common
Interest then outstanding, or terminate the Indenture, this
Supplemental Indenture or the Series AA Debentures, without in each
case the prior consent of holders of 66-2/3% of all Common Interest
then outstanding, unless and until all Securities and all accrued
and unpaid interest thereon (including Additional Interest, if any)
shall have been paid in full and (ii) without the prior consent of
holders of 100% of all Common Interests then outstanding, no
amendment shall be made to the provisions of this clause (ii) of
Section 3.5 or to (a) extend the stated maturity of the principal
of any Debenture, 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 or interest thereon is
payable or impair the right to institute suit for the enforcement
of any payment on any Debenture when due or (b) reduce the
aforesaid percentage in principal amount of Debentures of any
series the consent of the holders of which is required for any such
modification. Any required consent of holders of Common Interest
pursuant to this Section 3.5 shall be in writing or shall be
obtained at a meeting of Common Interest holders.
Section 3.6 Waivers. Capital may not waive compliance or
waive any default in compliance by the Issuer of any covenant or
other term in the Indenture, this Supplemental Indenture or the
Series AA Debentures without the approval of the same percentage of
holders of Common Interests, obtained in the same manner, as would
be required for an amendment of the Indenture, this Supplemental
Indenture or the Series AA Debentures to the same effect; provided
that if no approval would be required for any such amendment, then
Capital may waive such compliance or default in any manner that the
parties shall agree.
Section 3.7 Third Party Beneficiaries. The Issuer hereby
acknowledges that the holders from time to time of the Common
Interests shall expressly be third party beneficiaries of this
Supplemental Indenture.
Section 3.8 Amendment to Indenture. Pursuant to Section
8.1 of the Indenture, Section 8.2 of the Indenture is hereby
amended for purposes of any and all Securities, including without
limitation the Series AA Debentures, issued under the Indenture by
substituting the phrase "of not less than 66-2/3%" for the phrase
"of not less than a majority" in the first clause of such Section
8.2.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the
date and year first above written.
CONAGRA, INC.
By /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President, Finance
and Treasurer
[SEAL]
Attest:
/s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By /s/ David G. Bluhm
Name: David H. Bluhm
Title: Vice President
[SEAL]
Attest:
/s/ Frank P. Leslie
Name: Frank P. Leslie
Title: Assistant Secretary
<PAGE>
Exhibit A
[Form of Face of Series AA Debenture]
No.
ConAgra, Inc.
9% Series AA Debentures due 2043
ConAgra, Inc., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
or registered assigns, at the
office or agency of the Issuer in The City of New York, the
principal sum of Dollars on May 31, 1995, in such coin or currency
of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to
pay interest, at a rate of 9% per annum accruing from April 27,
1994 or from the most recent Interest Payment Date (as defined
below) to which interest has been paid or provided for on the
Series AA Debentures. To the extent allowed by law, the Issuer will
also pay interest on overdue installments of principal and interest
at such rate. The amount of interest payable for any full monthly
interest period shall be computed on the basis of twelve 30-day
months and a 360-day year and, for any period shorter than a full
monthly interest period, shall be computed on the basis of the
actual number of days elapsed in such period. Such interest shall
be payable monthly on the last day (an "Interest Payment Date") of
each calendar month, commencing on May 31, 1994 to the holder or
holders of this Debenture on the relevant record date (each, a
"Record Date"), which shall be one Business Day prior to the
relevant Interest Payment Date. If Interest Payment Date 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 (and the Record Date for such Interest
Payment Date shall be one Business Day prior to the date on which
payment is to be made), in each case with the same force and effect
as if made on such date. If at any time following the issuance of
the Common Securities, Capital shall be required to pay, with
respect to its income derived from the interest payments on the
Series AA Debentures, 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, the Issuer will pay as interest such additional
amounts ("Additional Interest") as may be necessary in order that
the net amounts received and retained by Capital after the payment
of such taxes, duties, assessments or governmental charges shall
result in Capital's having such funds as it would have had in the
absence of the payment of such taxes, duties, assessments or
governmental charges. Notwithstanding the forgoing, the Issuer
shall have the right at any time or times during the term of the
Series AA Debentures, so long as the Issuer is not in default in
the payment of interest under any of the Securities, to extend the
interest payment period for the Series AA Debentures up to 18
months; provided that at the end of such period the Issuer shall
pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Series AA Debentures to the
extent permitted by applicable law); provided further that, during
any such extended interest period, neither the Issuer nor any
majority owned subsidiary of the Issuer 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 the Issuer'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 the Series AA Debentures if an
extended interest period of identical length is simultaneously
selected for all Securities. Prior to the termination of any such
extended interest payment period for the Series AA Debentures, the
Issuer may further extend the interest payment period for the
Series AA Debentures; provided that such extended interest payment
period for the Series AA Debentures together with all such further
extensions thereof, may not exceed 18 months; and provided further
that any such further extended interest period may only be selected
with respect to the Series AA Debentures if a further extended
interest period of identical length is simultaneously selected for
all Securities. Following the termination of any extended interest
payment period, if the Issuer has paid all accrued and unpaid
interest required by the Debentures for such period, then the
Issuer shall have the right to again extend the interest payment
period up to 18 months as herein described. The Issuer shall give
Capital notice of its selection of any extended interest payment
period one Business Day prior to the earlier of (i) the date
Capital declares the related distribution, if any, to the holders
of the Common Interests or (ii) the date Capital is required to
give notice of the record or payment date of such related
distribution, if any, to the holders of the Common Interests to the
New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Common Interests, but in any
event not less than two Business Days prior to such record date.
Reference is made to the further provisions of this
Debenture set forth on the reverse hereof. Such further provisions
shall for all purposes have the same effect as though fully set
forth at this place.
This Debenture shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon
shall have been signed by the Trustee under the Indenture referred
to below.
This Debenture is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the
Issuer (hereinafter called the "Securities") of the series
hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of March 10, 1994 and a Second
Supplemental Indenture dated as of April 20, 1994 (herein
collectively called the "Indenture"), duly executed and delivered
by the Issuer and First Trust National Association, as Trustee
(herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Issuer and the
holders of the Securities. The Securities may be issued in one or
more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may
bear interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any) and may
otherwise vary as in the Indenture provided. This Debenture is one
of a series designated as the "9% Series AA Debentures due 2043"
(the "Series AA Debentures") of the Issuer, limited in aggregate
principal amount to $26,600,000 (or up to $30,590,000 aggregate
principal amount if and to the extent the underwriters'
over-allotment option granted by the Issuer in the Underwriting
Agreement is exercised).
In case an Event of Default with respect to the Series AA
Debentures, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the Holders of not less than
66-2/3% in aggregate principal amount of the Securities at the time
Outstanding (as defined in the Indenture) of all series to be
affected (voting as one class), evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of each such
series; provided, however, that no such supplemental indenture
shall (i) extend the final maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of any interest thereon, or impair or
affect the rights of any Holder to institute suit for the payment
thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities,
the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each
Security affected. It is also provided in the Indenture that, with
respect to certain defaults or Events of Default regarding the
Securities of any series, prior to any declaration accelerating the
maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or,
in the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the Holders of
all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence shall
not, however, apply to a continuing default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of this
Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders
and owners of this Debenture and any Debenture which may be issued
in exchange or substitution herefor, irrespective of whether or not
any notation thereof is made upon this Debenture or such other
Debentures.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Debenture
in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Series AA Debentures are issuable in registered form
without coupons in denominations of $25 and any integral multiple
of $25 at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, and in the manner and subject to
the limitations provided in the Indenture, but without the payment
of any service charge, notes may be exchanged for a like aggregate
principal amount of Series AA Debentures of other authorized
denominations.
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series AA
Debentures (together with any accrued but unpaid interest,
including Additional Interest, if any, on the portion being
prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any time
on or after May 31, 1999; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after April 20, 1994
in United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series AA
Debentures for federal income tax purposes,
all as further provided in the Indenture.
The Series AA Debentures are, to the extent and in the
manner provided in the Indenture, expressly subordinate and junior
in right of payment of all Senior Indebtedness as provided in the
Indenture, and each holder of this Debenture, by his acceptance
hereof, agrees to and shall be bound by such provisions of the
Indenture and authorizes and directs the Trustee in his behalf to
take such action as appropriate to effectuate such subordination
and appoints the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as 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.
Upon due presentment for registration of transfer of this
Debenture at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, a new Debenture or Debentures of
authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to
the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent of the
Issuer or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Debenture (whether or not this
Note shall be overdue and notwithstanding any notation of ownership
or other writing hereon), for the purpose of receiving payment of,
or on account of, the principal hereof and premium, if any, and
subject to the provisions on the face hereof, interest hereon, and
for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, 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 hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the
Indenture.
Dated: April 27, 1994
ConAgra, Inc.
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
First Trust National
Association, as Trustee
By__________________________
Authorized Signatory
<PAGE>
==========================================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
Third Supplemental Indenture
Dated as of June 1, 1994
Providing for Issuance of
Series B Debentures due 2043
in connection with the issuance by
ConAgra Capital, L.C. of its
Series B Cumulative Preferred Securities
==========================================================
<PAGE>
THIRD SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of June 1, 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, in accordance with Sections 2.1, 2.3 and 8.1 of
the Subordinated Indenture dated as of March 10, 1994, between the
Issuer and the Trustee (the "Indenture"), this Supplemental
Indenture is being entered into in order to establish the form and
terms of a series of Securities to be issued in connection with the
issuance by ConAgra Capital, L.C., an Iowa limited liability
company ("Capital"), of its Series B Adjustable Rate Cumulative
Preferred Securities (the "Series B Preferred Securities");
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Supplemental Indenture to provide, among other
things, for the authentication, delivery and administration of such
series of Securities;
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplement to Indenture according to its terms
and the terms of the Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
such series of 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 such series of Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined in the Indenture. All
capitalized terms used herein without definition shall have the
meanings specified in the Indenture.
SECTION 1.2 Additional Terms Defined. As used in this
Supplemental Indenture, the additional terms set forth below shall
have the following meanings:
"Additional Interest" shall have the meaning set forth in
Section 2.8 hereof.
"Common Interests" shall mean Common Membership Interests
as defined in the Operating Agreement.
"DTC" shall mean The Depository Trust Company as initial
depositary of the Series B Debentures upon a Preferred Security
Exchange.
"Event of Default" shall (a) prior to a Preferred
Security Exchange, have the meaning set forth in Section 2.12
hereof and (b) on and after a Preferred Security Exchange, have the
meaning set forth in Section 5.1 of the Indenture.
"Expense Agreement" means the Agreement as to Expenses
and Liabilities dated as of April 20, 1994 between the Issuer and
Capital.
"Guarantee" means the Payment and Guarantee Agreement
dated as of April 20, 1994, executed and delivered by the Issuer
for the benefit of the holders from time to time of the Series B
Preferred Securities and other Preferred Interests of Capital.
"Managing Members" means HW Nebraska, Inc., a Nebraska
corporation, and CP Nebraska, Inc., a Nebraska corporation, as
managing members of Capital.
"Operating Agreement" means the Limited Liability Company
Operating Agreement dated as of March 11, 1994 by and among the
Managing Members.
"Preferred Interests" means Series Preferred Membership
Interests as defined in the Operating Agreement.
"Preferred Security Exchange" means an exchange of Series
B Debentures for Series B Preferred Securities pursuant to Section
7 of the Written Action.
"Underwriting Agreement" means the underwriting agreement
dated as of June 1, 1994, among the Issuer, Capital and Smith
Barney Shearson Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated as representatives of the several underwriters named
therein.
"Written Action" means the Written Action of the Managing
Members Pursuant to Section 3.02 of the Operating Agreement dated
June 1, 1994, establishing the terms of the Series B Preferred
Securities.
ARTICLE TWO
ISSUANCE OF SERIES B DEBENTURES
SECTION 2.1 Issuance of Series B Debentures. There shall
be a series of Securities designated "Series B Adjustable Rate
Debentures due 2043" (the "Series B Debentures") and such Series B
Debentures shall have the terms set forth in this Article Two in
accordance with the provisions of the Indenture and this
Supplemental Indenture.
SECTION 2.2 Limitation on Aggregate Principal Amount. The
aggregate principal amount of the Series B Debentures which may be
authenticated and delivered shall be limited to $175,000,000.
SECTION 2.3 Maturity of the Series B Debentures. Subject
to the provisions of Sections 2.4 and 2.5, the entire principal
amount of the Series B Debentures shall become due and payable,
together with any accrued and unpaid interest thereon, including
Additional Interest, if any, on the earlier of (a) June 30, 2043
(subject to the Issuer's right to exchange the Series B Debentures
for new debentures pursuant to Section 2.6) and (b) the date upon
which Capital shall be dissolved, wound-up or liquidated; provided
that the parenthetical to clause (a) and the entirety of clause (b)
shall be inapplicable on and after the date of any Preferred
Security Exchange.
SECTION 2.4 Mandatory Prepayment of Series B Debentures
upon redemption of Series B Preferred Securities. Notwithstanding
the provisions of Section 2.3, if Capital redeems the Series B
Preferred Securities in accordance with the terms thereof, the
Series B Debentures pertaining to the Series B Preferred Securities
shall become due and payable in a principal amount equal to the
aggregate stated liquidation preference of the Series B Preferred
Securities so redeemed, together with any and all accrued interest
thereon, including Additional Interest, if any. Any payment
pursuant to this Section 2.4 shall be made prior to 12:00 noon, New
York time, on the date fixed for such redemption or at such other
time on such earlier date as Capital and the Issuer shall agree.
SECTION 2.5 Optional Prepayment. Upon not less than 30
nor more than 60 days' prior notice, the Issuer shall have the
right to prepay the Series B Debentures relating to the Series B
Preferred Securities (together with any accrued but unpaid
interest, including Additional Interest, if any, on the portion
being prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any time
on or after June 30, 1999; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after June 1, 1994 in
United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series B
Debentures for federal income tax purposes even if the Series
B Preferred Securities are exchanged for the Series B
Debentures pursuant to a Preferred Security Exchange.
SECTION 2.6 Exchange of Series B Debentures for New
Debentures. Notwithstanding the provisions of Section 2.3, prior to
a Preferred Security Exchange, in lieu of repaying the Series B
Debentures relating to the Series B Preferred Securities when due,
the Issuer may elect to exchange such Series B Debentures for new
debentures with an equal aggregate principal amount issued under
the Indenture with terms substantially identical to the Series B
Debentures; provided that the Issuer may not so elect to exchange
any Series B Debentures, unless at the time of such exchange
Capital owns all of the Series B Debentures and, as determined in
the judgment of the Managing Members and Capital's financial
advisor (selected by the Managing Members and who shall be
unaffiliated with the Issuer and shall be among the 30 largest
investment banking firms, measured by total capital, in the United
States at the time of such exchange), (a) the Issuer is not
bankrupt, insolvent or in liquidation, (b) no Event of Default or
event that with the giving of notice or the passage of time would
constitute an Event of Default on any Securities pertaining to
Preferred Interests of any series, has occurred and is continuing,
(c) the Issuer has made timely payments on the Series B Debentures
for the immediately preceding 18 months, (d) Capital is not in
arrears on payments of distributions on the Series B Preferred
Securities, (e) there is then no present reason to believe the
Issuer will be unable to make timely payment of principal and
interest on such new debentures, (f) such new debentures are being
issued 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 debentures are being issued at a rate
sufficient to provide payments equal to or greater than the amount
of distributions required under the Series B Preferred Securities,
(h) such debentures are being issued for a term that is consistent
with market circumstances and the Issuer's financial condition, (i)
immediately prior to issuing such new debentures, the senior
unsecured long-term debt of the Issuer 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 the Issuer'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 of 1933, as amended) and any subordinated
unsecured long-term debt of the Issuer or, if there is no such debt
then outstanding, the Series B Preferred Securities, 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 Interests of
the first series issued.
SECTION 2.7 Denomination and Interest on the Series B
Debentures. (a) The Series B Debentures shall be issuable as
Registered Securities in denominations of $25 and any multiple
thereof.
(b) The Series B Debentures shall bear interest at a rate
equal to 7.06% per annum from June 8, 1994 to and including August
31, 1994 and will bear interest for each monthly interest period
thereafter at a rate per annum equal to the Applicable Interest
Rate in effect for the Quarterly Period in which such interest
period occurs until the principal amount of the Series B Debentures
has been paid or duly made available for payment.
Except as provided below in this paragraph, the "Applicable
Interest Rate" for any Quarterly Period will be equal to 95% of the
Effective Rate (as defined below), but not less than 5.0% per
annum, or more than 10.5% per annum. The "Effective Rate" for any
Quarterly Period will be equal to the highest of the Treasury Bill
Rate, the Ten Year Constant Maturity Rate and the Thirty Year
Constant Maturity Rate (each as defined below) for such Quarterly
Period. In the event that the Issuer determines in good faith that
for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate cannot be determined for any Quarterly Period, then the
Effective Rate for such Quarterly Period will be equal to the
higher of whichever two of such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate can be determined for any Quarterly Period, then the
Effective Rate for such Quarterly Period will be equal to
whichever such rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate can be determined for any Quarterly Period, then the
Effective Rate for the preceding Quarterly Period will be
continued for such Quarterly Period.
Except as described below in this paragraph, the "Treasury
Bill Rate" for each Quarterly Period will be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period (as defined
below)) for three-month U.S. Treasury bills, as published weekly by
the Federal Reserve Board (as defined below) during the Calendar
Period immediately preceding the last ten calendar days preceding
the Quarterly Period for which the interest rate on the Series B
Debentures is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum market
discount rate during any such Calendar Period, then the Treasury
Bill Rate for such Quarterly Period will be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period) for
three-month U.S. Treasury bills, as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Issuer. In the
event that a per annum market discount rate for three-month U.S.
Treasury bills is not published by the Federal Reserve Board or by
any Federal Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Treasury Bill Rate for
such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one
weekly per annum market discount rate, if only one such rate is
published during the relevant Calendar Period) for all of the U.S.
Treasury bills then having remaining maturities of not less than 80
nor more than 100 days, as published during such Calendar Period by
the Federal Reserve Board or, if the Federal Reserve Board does not
publish such rates, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Issuer. In the
event that the Issuer determines in good faith that for any reason
no such U.S. Treasury bill rates are published as provided above
during such Calendar Period, then the Treasury Bill Rate for such
Quarterly Period will be the arithmetic average of the per annum
market discount rates based upon the closing bids during such
Calendar Period for each of the issues of marketable
non-interest-bearing U.S. Treasury securities with a remaining
maturity of not less than 80 nor more than 100 days from the date
of each such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if daily
quotations are not generally available) to the Issuer by at least
three recognized dealers in U.S. Government securities selected by
the Issuer. In the event that the Issuer determines in good faith
that for any reason the Issuer cannot determine the Treasury Bill
Rate for any Quarterly Period as provided above in this paragraph,
the Treasury Bill Rate for such Quarterly Period will be the
arithmetic average of the per annum market discount rates based
upon the closing bids during such Calendar Period for each of the
issues of marketable interest-bearing U.S. Treasury securities with
a remaining maturity of not less than 80 nor more than 100 days, as
chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally available) to
the Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
Except as described below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Period will be the
arithmetic average of the two most recent weekly per annum Ten Year
Average Yields (as defined below) (or the one weekly per annum Ten
Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately preceding the
last ten calendar days preceding the Quarterly Period for which the
interest rate on the Series B Debentures is being determined. In
the event that the Federal Reserve Board does not publish such a
weekly per annum Ten Year Average Yield during such Calendar
Period, then the Ten Year Constant Maturity Rate for such Quarterly
Period will be the arithmetic average of the two most recent weekly
per annum Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Issuer. In the event that a
per annum Ten Year Average Yield is not published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then
the Ten Year Constant Maturity Rate for such Quarterly Period will
be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly per annum average
yield to maturity, if only one such yield is published during the
relevant Calendar Period) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special
Securities (as defined below)) then having remaining maturities of
not less than eight nor more than twelve years, as published during
such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board does not publish such yields, by any Federal
Reserve Bank or by any U.S. Government department or agency
selected by the Issuer. In the event that the Issuer determines in
good faith that for any reason the Issuer cannot determine the Ten
Year Constant Maturity Rate for any Quarterly Period as provided
above in this paragraph, then the Ten Year Constant Maturity Rate
for such Quarterly Period will be the arithmetic average of the per
annum average yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight
nor more than twelve years from the date of each such quotation, as
chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally available) to
the Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
Except as described below in this paragraph, the "Thirty Year
Constant Maturity Rate" for each Quarterly Period will be the
arithmetic average of the two most recent weekly per annum Thirty
Year Average Yields (as defined below) (or the one weekly per annum
Thirty Year Average Yield, if only one such yield is published
during the relevant Calendar Period), as published weekly by the
Federal Reserve Board during the Calendar Period immediately
preceding the last ten calendar days preceding the Quarterly Period
for which the interest rate on the Series B Debentures is being
determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum Thirty Year Average Yield during
such Calendar Period, then the Thirty Year Constant Maturity Rate
for such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum Thirty Year Average Yields (or the one
weekly per annum Thirty Year Average Yield, if only one such yield
is published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the Issuer.
In the event that a per annum Thirty Year Average Yield is not
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Thirty Year Constant Maturity Rate for
such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum average yields to maturity (or the one
weekly per annum average yield to maturity, if only one such yield
is published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) then having remaining
maturities of not less than twenty-eight nor more than thirty
years, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board does not publish
such yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Issuer. In the event that the
Issuer determines in good faith that for any reason the Issuer
cannot determine the Thirty Year Constant Maturity Rate for any
Quarterly Period as provided above in this paragraph, then the
Thirty Year Constant Maturity Rate for such Quarterly Period will
be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period
for each of the issues of actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) with
a final maturity date not less than twenty-eight nor more than
thirty years (or, in the absence of which, having maturities of not
less than twenty-five years or, in the further absence of which,
twenty years) from the date of each such quotation, as chosen and
quoted daily for each business day in New York City (or less
frequently if daily quotations are not generally available) to the
Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Thirty Year Constant Maturity Rate will each be rounded to
the nearest five hundredths of a percent.
The Applicable Interest Rate with respect to each Quarterly
Period will be calculated as promptly as practicable by the Issuer
according to the appropriate method described above.
As used above, the term "Calendar Period" means a period of
fourteen calendar days; the term "Federal Reserve Board" means the
Board of Governors of the Federal Reserve System; the term
"Quarterly Period" means the three-month period ending November 30,
1994 and each three-month period ending February 28 (or February
29), May 31, August 31, and November 30 thereafter; the term
"Special Securities" means securities which can, at the option of
the holder, be surrendered at face value in payment of any Federal
estate tax or which provide tax benefits to the holder and are
priced to reflect such tax benefits or which were originally issued
at a deep or substantial discount; the term "Ten Year Average
Yield" means the average yield to maturity for actively traded
marketable U.S. Treasury fixed interest rate securities (adjusted
to constant maturities of ten years); and the term "Thirty Year
Average Yield" means the average yield to maturity for actively
traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of thirty years).
To the extent allowed by law, the Issuer will also pay
interest on overdue installments of interest at the rate used to
compute such installments. The amount of interest payable for any
full monthly interest period shall be computed on the basis of
twelve 30-day months and a 360-day year and, for any period shorter
than a full monthly interest period, shall be computed on the basis
of the actual number of days elapsed in such period. Such interest
shall be payable monthly on the last day (an "Interest Payment
Date") of each calendar month, commencing on June 30, 1994 to the
holder or holders of the Series B Debenture on the relevant record
date (each, a "Record Date"), which shall be one Business Day prior
to the relevant Interest Payment Date. If Interest Payment Date 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 (and the Record Date for such
Interest Payment Date shall be one Business Day prior to the date
on which payment is to be made), in each case with the same force
and effect as if made on such date.
SECTION 2.8 Additional Interest. If at any time following
the issuance of the Series B Preferred Securities and prior to a
Preferred Security Exchange, Capital shall be required to pay, with
respect to its income derived from the interest payments on the
Series B Debentures relating to the Series B Preferred Securities,
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, the
Issuer will pay as interest such additional amounts ("Additional
Interest") as may be necessary in order that the net amounts
received and retained by Capital after the payment of such taxes,
duties, assessments or governmental charges shall result in
Capital's having such funds as it would have had in the absence of
the payment of such taxes, duties, assessments or governmental
charges.
SECTION 2.9 Extension of Interest Period. Notwithstanding
the provisions of Section 2.7 hereof, the Issuer shall have the
right at any time or times during the term of the Series B
Debentures, so long as the Issuer is not in default in the payment
of interest under any of the Securities, to extend the interest
payment period for the Series B Debentures up to 18 months;
provided that at the end of such period the Issuer shall pay all
installments of interest then accrued and unpaid (together with
interest thereon at the rate used to compute such installments to
the extent permitted by applicable law); provided further that,
during any such extended interest period, neither the Issuer nor
any majority owned subsidiary of the Issuer 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
the Issuer'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 the Series B
Debentures if an extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for the
Series B Debentures, the Issuer may further extend the interest
payment period for the Series B Debentures; provided that such
extended interest payment period for the Series B Debentures
together with all such further extensions thereof, may not exceed
18 months; and provided further that any such further extended
interest period may only be selected with respect to the Series B
Debentures if a further extended interest period of identical
length is simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the Issuer
has paid all accrued and unpaid interest required by the Securities
for such period, then the Issuer shall have the right to again
extend the interest payment period up to 18 months as herein
described. Prior to any Preferred Security Exchange, the Issuer
shall give Capital notice of its selection of any extended interest
payment period one Business Day prior to the earlier of (i) the
date Capital declares the related distribution to holders of the
Series B Preferred Securities or (ii) the date Capital is required
to give notice of the record or payment date of such related
distribution to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Series B
Preferred Securities, but in any event not less than two Business
Days prior to such record date; the Issuer shall cause Capital to
give such notice of the Issuer's selection of any extended interest
payment period to all holders of such Series B Preferred
Securities. After any Preferred Security Exchange, the Issuer shall
give the Holders of the Series B Debentures notice of its selection
of any extended interest payment prior to the date it is required
to give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable
self-regulatory organization, but in any event not less than two
Business Days prior to such Record Date.
SECTION 2.10 Set-off. Notwithstanding anything to the
contrary herein, prior to any Preferred Security Exchange the
Issuer shall have the right to set off any payment it is otherwise
required to make hereunder with and to the extent the Issuer has
theretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee.
SECTION 2.11 Certain Covenants. (a) So long as the Series
B Preferred Securities remain outstanding, neither the Issuer nor
any majority-owned subsidiary of the Issuer shall declare or pay
any dividend on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Issuer'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 the Issuer'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
Issuer is in default with respect to its payment obligations under
the Guarantee or the Expense Agreement or there shall have occurred
an Event of Default or any event that, with the giving of notice or
the lapse of time or both, would constitute an Event of Default
under the Securities.
(b) So long as the Series B Preferred Securities remain
outstanding, the Issuer shall (i) not cause or permit any Common
Interests to be transferred, (ii) maintain direct or indirect
ownership of all outstanding securities in Capital other than the
Preferred Interests of any series and any other securities
permitted to be issued by Capital that would not cause Capital to
become an "investment company" under the Investment Company Act of
1940, as amended, (iii) cause at least 21% of the total value of
Capital and at least 21% of all interests in the capital, income,
gain, loss, deduction and credit of Capital to be represented by
Common Interests, (iv) not voluntarily dissolve, windup or
liquidate Capital or either of the Managing Members, (v) cause HW
Nebraska, Inc. and CP Nebraska, Inc. to remain the Managing Members
of Capital and timely perform all of their respective duties as
Managing Members of Capital, and (vi) use reasonable efforts to
cause 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 the Issuer may permit Capital, solely for
the purpose of changing its domicile or avoiding tax consequences
adverse to the Issuer, Capital or holders of Series B Preferred
Securities, to consolidate or merge with or into a limited
liability company or a limited partnership formed under the laws of
any state of the United States of America; provided that (1) such
successor limited liability company or limited partnership (x)
expressly assumes all of the obligations of Capital under the
Series B Preferred Securities and other series of Preferred
Interests then outstanding or (y) substitutes for the Series B
Preferred Securities and other series of Preferred Interests then
outstanding other securities having substantially the same terms as
the Series B Preferred Securities and such other Preferred
Interests (the "Successor Securities") so long as the Successor
Securities rank, with respect to participation in the profits and
assets of such successor entity, at least as senior as the Series B
Preferred Securities and such other Preferred Interests rank with
respect to participation in the profits and assets of Capital, (2)
the Issuer expressly acknowledges such successor as the holder of
all of the Series B Debentures and other series of debentures
issued under the Indenture then outstanding, (3) 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, (4) the
holders of Series B Preferred Securities and such other Preferred
Interests do not suffer any adverse tax consequences as a result of
such merger or consolidation, (5) such merger or consolidation does
not cause any Preferred Interests to be downgraded by any
"nationally recognized statistical rating organization," as that
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 (6) following such merger or consolidation, neither
the Issuer nor such successor limited liability company or limited
partnership will be an "investment company" for purposes of the
Investment Company Act of 1940, as amended.
(c) So long as the Series B Preferred Securities
remain outstanding, the Issuer shall not consolidate with or merge
into any other Person or sell its property and assets as, or
substantially as, an entirety to any Person and shall not permit
any Person to merge into or consolidate with the Issuer unless (i)
in case the Issuer shall consolidate with or merge into another
Person or sell its properties and assets as, or substantially as,
an entirety to any Person, the Person formed by such consolidation
or into which the Issuer is merged or the Person which purchases
the properties and assets of the Issuer as, or substantially, as an
entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States
of America, any State or the District of Columbia, and shall
expressly assume the Issuer's obligations under the Indenture, this
Supplemental Indenture and the Series B Debentures and (ii)
immediately after giving effect to the transaction no Event of
Default shall have occurred and be continuing.
(d) So long as the Series B Preferred Securities
remain outstanding, the provisions of Sections 2.11(b) and (c)
shall remain in full force and effect notwithstanding satisfaction
and discharge of the Indenture pursuant to Section 10.1 thereof.
SECTION 2.12 Events of Default; Remedies. Prior to any
Preferred Security Exchange, "Event of Default" means any one of
the following events:
(a) failure to pay when due any interest under any
Securities, including any Additional Interest, and such failure
shall continue for a period of 30 days (whether or not payment is
prohibited by the provisions contained in Article Thirteen of the
Indenture or otherwise); provided that a valid extension of the
interest payment period by the Issuer shall not constitute a
default in the payment of interest for this purpose;
(b) failure to pay when due any principal under any
Securities (whether or not payment is prohibited by the provisions
contained in Article Thirteen of the Indenture or otherwise);
(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 (other than a covenant or warranty in
respect of the Series B Debentures a default in the performance or
breach of which is elsewhere in this Section specifically dealt
with) or contained in the Indenture, this Supplemental Indenture or
the Series B Debentures, and continuance of such default or breach
for a period of 90 days after there as been given, by registered or
certified mail, to the Issuer by the Trustee or any Holder hereof,
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;
(d) the dissolution, or winding up or liquidation of
Capital;
(e) 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
(f) 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.
If an Event of Default shall occur and be continuing,
then Capital will have the right (i) to declare the principal of
and the interest on the Series B Debentures (including any
Additional Interest and any interest subject to an extension
election) and any other amounts payable under the Series B
Debentures to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series B Debentures to the contrary
notwithstanding and (ii) to enforce its other rights hereunder and
thereunder. Capital may not accelerate the principal amount of any
Series B Debenture unless the principal amount of all Securities is
accelerated.
If an Event of Default specified in clauses (d), (e) or
(f) above shall have occurred, the principal of and interest on the
Series B Debentures shall thereupon and concurrently become due and
payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived, anything in the
Indenture, this Supplemental Indenture or the Series B Debentures
to the contrary notwithstanding.
If an Event of Default specified in clause (a) or (b)
above shall have occurred and be continuing and Capital shall have
failed to pay any distributions on the Series B Preferred
Securities when due (other than as a result of any valid extension
of the interest payment period by the Issuer for the Series B
Debentures Securities) or to pay any portion of the redemption
price of the Series B Preferred Securities called for redemption,
then any Holder of Series B Preferred Securities may, as set forth
in the terms of the Series B Preferred Securities, enforce directly
against the Issuer Capital's right hereunder to receive payments of
principal and interest on the Series B Debentures relating to such
Series B Preferred Securities but only in an amount sufficient to
enable Capital to pay such distributions or redemption price.
The Issuer expressly acknowledges that under the terms of
Section 3.02(f) of the Operating Agreement and Section 9 of the
Written Action, the holders of the outstanding Series B Preferred
Securities together with the holder of other Preferred Interests
shall in certain circumstances have the right to appoint a trustee,
which trustee shall be authorized to exercise Capital's creditor
rights under the Indenture, this Supplemental Indenture and the
Series B Debentures and the Issuer agrees to cooperate with such
trustee; provided that any trustee so appointed shall vacate office
immediately in accordance with Section 3.02(f) of the Operating
Agreement if all Events of Default giving rise to such right of
appointment have been cured by the Issuer.
Except as provided in this Section 2.12, Holders of
Series B Preferred Securities shall have no rights to enforce any
obligations of the Issuer under the Indenture, this Supplemental
Indenture or the Series B Debentures.
On and after a Preferred Security Exchange, the
provisions of Article Five of the Indenture, including without
limitation the definition of an "Event of Default", shall apply to
the Series B Debentures and this Section 2.12 shall be of no
further force or effect.
SECTION 2.13 Book-Entry-Only Issuance; The Depository
Trust Company. On and after a Preferred Security Exchange, the
provisions of this Section 2.13 shall apply.
(a) DTC, New York, New York, will act as securities
depository for the Series B Debentures. The Series B Debentures
will be issued as one or more global certificates only as
fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). Such global certificates shall bear a
legend in the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS DEBENTURE IS IN GLOBAL FORM WITHIN THE MEANING OF
THE INDENTURE AND SUPPLEMENTAL INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF DTC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
DEBENTURES IN CERTIFICATED FORM, THIS DEBENTURE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY
A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.
or any other legend then customary for securities of a similar
nature held by DTC.
(b) Redemption notices shall be sent to Cede & Co. If
less then all of the Series B Debentures are being redeemed, such
securities shall be redeemed in accordance with DTC's then current
practice.
(c) DTC may discontinue providing its services as
securities depository with respect to the Series B Debentures by
giving reasonable notice to the Issuer as provided in the agreement
between the Issuer and DTC. Under such circumstances, if a
successor securities depository is not obtained, the Issuer at its
expense shall cause certificates for Series B Debentures to be
printed and delivered as promptly as practicable.
SECTION 2.14 Listing on the New York Stock Exchange.
Following a Preferred Security Exchange, the Issuer will use its
best efforts to have the Series B Debentures listed on the same
exchange on which the Series B Preferred Securities are listed.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall be
deemed given by a party hereto if in writing and delivered
personally or by telegram or facsimile transmission or by
registered or certified mail (return receipt requested) to the
other party at the following address for such party (or at such
other address as shall be specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The Issuer shall
have the right at all times to assign any of its rights or
obligations under the Indenture, this Supplemental Indenture and
the Series B Debentures to a direct or indirect wholly owned
subsidiary of the Issuer(other than to any Managing Member);
provided that, in the event of any such assignment, the Issuer
shall remain jointly and severally liable for all such obligations;
and provided further that in the event of an assignment prior to a
Preferred Security Exchange the Issuer shall have received an
opinion of nationally recognized tax counsel that such assignment
shall not constitute a taxable event of the holders of Series B
Preferred Securities for federal income tax purposes. Except as
otherwise provided in this Supplemental Indenture, Capital may not
assign any of its rights under the Series B Debentures without the
prior written consent of the Issuer. Subject to the foregoing, the
Indenture, this Supplemental Indenture and the Series B Debentures
shall be binding upon and inure to the benefit of the Issuer,
Capital, the Holders from time to time of the Series B Debentures
and their respective successors and assigns. Except as provided in
this Section 3.2 or elsewhere in this Supplemental Indenture, none
of the Indenture, this Supplemental Indenture nor the Series B
Debentures may be assigned by either the Issuer or Capital and any
assignment by the Issuer or Capital in contravention of this
Section 3.2 shall be null and void.
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL INDENTURE
AND THE SERIES B DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.4 Counterparts. This Supplemental Indenture may
be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and
the same instrument.
Section 3.5 Amendments. This Supplemental Indenture may
be amended as set forth in Article Eight of the Indenture.
Notwithstanding the foregoing, so long as any Series B Preferred
Securities shall remain outstanding, (i) no amendment to the
provisions of the Indenture, this Supplemental Indenture or the
Series B Debentures shall be made that adversely affects the
holders of any Preferred Interests then outstanding, or terminate
the Indenture, this Supplemental Indenture or the Series B
Debentures, without in each case the prior consent of holders of
66-2/3% in stated liquidation preference of all Preferred Interests
then outstanding, unless and until all Securities and all accrued
and unpaid interest thereon (including Additional Interest, if any)
shall have been paid in full and (ii) without the prior consent of
holders of 100% in stated liquidation preference of all Series B
Preferred Securities then outstanding, no amendment shall be made
to the provisions of this clause (ii) of Section 3.5 or to (a)
extend the stated maturity of the principal 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 change the currency in which the
principal thereof or interest thereon is payable or impair the
right to institute suit for the enforcement of any payment on any
Security when due or (b) reduce the aforesaid percentage in
principal amount of Securities of any series the consent of the
holders of which is required for any such modification. Any
required consent of holders of Preferred Interests pursuant to this
Section 3.5 shall be in writing or shall be obtained at a meeting
of Preferred Interestholders convened in the manner specified in
3.02(e) of the Operating Agreement.
Section 3.6 Waivers. Capital may not waive compliance or
waive any default in compliance by the Issuer of any covenant or
other term in the Indenture, this Supplemental Indenture or the
Series B Debentures without the approval of the same percentage of
holders of Preferred Interests, obtained in the same manner, as
would be required for an amendment of the Indenture, this
Supplemental Indenture or the Series B Debentures to the same
effect; provided that if no approval would be required for any such
amendment, then Capital may waive such compliance or default in any
manner that the parties shall agree.
Section 3.7 Third Party Beneficiaries. The Issuer hereby
acknowledges that until a Preferred Security Exchange, the holders
from time to time of the Series B Preferred Securities shall
expressly be third party beneficiaries of this Supplemental
Indenture.
Section 3.8 Amendment to Indenture. Pursuant to Section
8.1 of the Indenture, Section 8.2 of the Indenture is hereby
amended for purposes of any and all Securities, including without
limitation the Series B Debentures, issued under the Indenture by
substituting the phrase "of not less than 66-2/3%" for the phrase
"of not less than a majority" in the first clause of such Section
8.2.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the
date and year first above written.
CONAGRA, INC.
By: /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President, Finance
and Treasurer
[SEAL]
Attest:
/s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By /s/ G. S. Kessler
Name: G. S. Kessler
Title: Assistant Vice President
[SEAL]
Attest:
/s/ Sheryl A. Christopherson
Name: Sheryl A. Christopherson
Title: Assistant Secretary
<PAGE>
Exhibit A
[Form of Series B Debenture]
No. 1
ConAgra, Inc.
Series B Debentures due 2043
ConAgra, Inc., a Delaware corporation (the "Issuer"), for
value received, hereby promises to pay to ConAgra Capital, L.C. or
registered assigns, at the office or agency of the Issuer in The
City of New York, the principal sum of $175,000,000 Dollars on June
30, 2043, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, at a rate equal to
7.06% per annum from June 8, 1994 to and including August 31, 1994
and interest for each monthly interest period thereafter at a rate
per annum equal to the Applicable Interest Rate in effect for the
Quarterly Period in which such interest period occurs until such
principal sum is paid or duly made available for payment.
Except as provided below in this paragraph, the "Applicable
Interest Rate" for any Quarterly Period will be equal to 95% of the
Effective Rate (as defined below), but not less than 5.0% per
annum, or more than 10.5% per annum. The "Effective Rate" for any
Quarterly Period will be equal to the highest of the Treasury Bill
Rate, the Ten Year Constant Maturity Rate and the Thirty Year
Constant Maturity Rate (each as defined below) for such Quarterly
Period. In the event that the Issuer determines in good faith that
for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate cannot be determined for any Quarterly Period, then the
Effective Rate for such Quarterly Period will be equal to the
higher of whichever two of such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate can be determined for any Quarterly Period, then the
Effective Rate for such Quarterly Period will be equal to
whichever such rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate can be determined for any Quarterly Period, then the
Effective Rate for the preceding Quarterly Period will be
continued for such Quarterly Period.
Except as described below in this paragraph, the "Treasury
Bill Rate" for each Quarterly Period will be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period (as defined
below)) for three-month U.S. Treasury bills, as published weekly by
the Federal Reserve Board (as defined below) during the Calendar
Period immediately preceding the last ten calendar days preceding
the Quarterly Period for which the interest rate on the Series B
Debentures is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum market
discount rate during any such Calendar Period, then the Treasury
Bill Rate for such Quarterly Period will be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period) for
three-month U.S. Treasury bills, as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Issuer. In the
event that a per annum market discount rate for three-month U.S.
Treasury bills is not published by the Federal Reserve Board or by
any Federal Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Treasury Bill Rate for
such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one
weekly per annum market discount rate, if only one such rate is
published during the relevant Calendar Period) for all of the U.S.
Treasury bills then having remaining maturities of not less than 80
nor more than 100 days, as published during such Calendar Period by
the Federal Reserve Board or, if the Federal Reserve Board does not
publish such rates, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Issuer. In the
event that the Issuer determines in good faith that for any reason
no such U.S. Treasury bill rates are published as provided above
during such Calendar Period, then the Treasury Bill Rate for such
Quarterly Period will be the arithmetic average of the per annum
market discount rates based upon the closing bids during such
Calendar Period for each of the issues of marketable
non-interest-bearing U.S. Treasury securities with a remaining
maturity of not less than 80 nor more than 100 days from the date
of each such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if daily
quotations are not generally available) to the Issuer by at least
three recognized dealers in U.S. Government securities selected by
the Issuer. In the event that the Issuer determines in good faith
that for any reason the Issuer cannot determine the Treasury Bill
Rate for any Quarterly Period as provided above in this paragraph,
the Treasury Bill Rate for such Quarterly Period will be the
arithmetic average of the per annum market discount rates based
upon the closing bids during such Calendar Period for each of the
issues of marketable interest-bearing U.S. Treasury securities with
a remaining maturity of not less than 80 nor more than 100 days, as
chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally available) to
the Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
Except as described below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Period will be the
arithmetic average of the two most recent weekly per annum Ten Year
Average Yields (as defined below) (or the one weekly per annum Ten
Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately preceding the
last ten calendar days preceding the Quarterly Period for which the
interest rate on the Series B Debentures is being determined. In
the event that the Federal Reserve Board does not publish such a
weekly per annum Ten Year Average Yield during such Calendar
Period, then the Ten Year Constant Maturity Rate for such Quarterly
Period will be the arithmetic average of the two most recent weekly
per annum Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Issuer. In the event that a
per annum Ten Year Average Yield is not published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then
the Ten Year Constant Maturity Rate for such Quarterly Period will
be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly per annum average
yield to maturity, if only one such yield is published during the
relevant Calendar Period) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special
Securities (as defined below)) then having remaining maturities of
not less than eight nor more than twelve years, as published during
such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board does not publish such yields, by any Federal
Reserve Bank or by any U.S. Government department or agency
selected by the Issuer. In the event that the Issuer determines in
good faith that for any reason the Issuer cannot determine the Ten
Year Constant Maturity Rate for any Quarterly Period as provided
above in this paragraph, then the Ten Year Constant Maturity Rate
for such Quarterly Period will be the arithmetic average of the per
annum average yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight
nor more than twelve years from the date of each such quotation, as
chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally available) to
the Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
Except as described below in this paragraph, the "Thirty Year
Constant Maturity Rate" for each Quarterly Period will be the
arithmetic average of the two most recent weekly per annum Thirty
Year Average Yields (as defined below) (or the one weekly per annum
Thirty Year Average Yield, if only one such yield is published
during the relevant Calendar Period), as published weekly by the
Federal Reserve Board during the Calendar Period immediately
preceding the last ten calendar days preceding the Quarterly Period
for which the interest rate on the Series B Debentures is being
determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum Thirty Year Average Yield during
such Calendar Period, then the Thirty Year Constant Maturity Rate
for such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum Thirty Year Average Yields (or the one
weekly per annum Thirty Year Average Yield, if only one such yield
is published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the Issuer.
In the event that a per annum Thirty Year Average Yield is not
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Thirty Year Constant Maturity Rate for
such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum average yields to maturity (or the one
weekly per annum average yield to maturity, if only one such yield
is published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) then having remaining
maturities of not less than twenty-eight nor more than thirty
years, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board does not publish
such yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Issuer. In the event that the
Issuer determines in good faith that for any reason the Issuer
cannot determine the Thirty Year Constant Maturity Rate for any
Quarterly Period as provided above in this paragraph, then the
Thirty Year Constant Maturity Rate for such Quarterly Period will
be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period
for each of the issues of actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) with
a final maturity date not less than twenty-eight nor more than
thirty years (or, in the absence of which, having maturities of not
less than twenty-five years or, in the further absence of which,
twenty years) from the date of each such quotation, as chosen and
quoted daily for each business day in New York City (or less
frequently if daily quotations are not generally available) to the
Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Thirty Year Constant Maturity Rate will each be rounded to
the nearest five hundredths of a percent.
The Applicable Interest Rate with respect to each Quarterly
Period will be calculated as promptly as practicable by the Issuer
according to the appropriate method described above.
As used above, the term "Calendar Period" means a period of
fourteen calendar days; the term "Federal Reserve Board" means the
Board of Governors of the Federal Reserve System; the term
"Quarterly Period" means the three-month period ending November 30,
1994 and each three-month period ending February 28 (or February
29), May 31, August 31, and November 30 thereafter; the term
"Special Securities" means securities which can, at the option of
the holder, be surrendered at face value in payment of any Federal
estate tax or which provide tax benefits to the holder and are
priced to reflect such tax benefits or which were originally issued
at a deep or substantial discount; the term "Ten Year Average
Yield" means the average yield to maturity for actively traded
marketable U.S. Treasury fixed interest rate securities (adjusted
to constant maturities of ten years); and the term "Thirty Year
Average Yield" means the average yield to maturity for actively
traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of thirty years).
To the extent allowed by law, the Issuer will also pay
interest on overdue installments of interest at the rate used to
compute such installments. The amount of interest payable for any
full monthly interest period shall be computed on the basis of
twelve 30-day months and a 360-day year and, for any period shorter
than a full monthly interest period, shall be computed on the basis
of the actual number of days elapsed in such period. Such interest
shall be payable monthly on the last day (an "Interest Payment
Date") of each calendar month, commencing on June 30, 1994 to the
holder or holders of this Debenture on the relevant record date
(each, a "Record Date"), which shall be one Business Day prior to
the relevant Interest Payment Date. If Interest Payment Date 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 (and the Record Date for such Interest
Payment Date shall be one Business Day prior to the date on which
payment is to be made), in each case with the same force and effect
as if made on such date. If at any time following the issuance of
the Series B Preferred Securities and prior to a Preferred Security
Exchange, Capital shall be required to pay, with respect to its
income derived from the interest payments on the Series B
Debentures relating to the Series B Preferred Securities, 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, the
Issuer will pay as interest such additional amounts ("Additional
Interest") as may be necessary in order that the net amounts
received and retained by Capital after the payment of such taxes,
duties, assessments or governmental charges shall result in
Capital's having such funds as it would have had in the absence of
the payment of such taxes, duties, assessments or governmental
charges. Notwithstanding the forgoing, the Issuer shall have the
right at any time or times during the term of the Series B
Debentures, so long as the Issuer is not in default in the payment
of interest under any of the Securities, to extend the interest
payment period for the Series B Debentures up to 18 months;
provided that at the end of such period the Issuer shall pay all
installments of interest then accrued and unpaid (together with
interest thereon at the rate used to compute such installments to
the extent permitted by applicable law); provided further that,
during any such extended interest period, neither the Issuer nor
any majority owned subsidiary of the Issuer 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
the Issuer'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 the Series B
Debentures if an extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for the
Series B Debentures, the Issuer may further extend the interest
payment period for the Series B Debentures; provided that such
extended interest payment period for the Series B Debentures
together with all such further extensions thereof, may not exceed
18 months; and provided further that any such further extended
interest period may only be selected with respect to the Series B
Debentures if a further extended interest period of identical
length is
simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the Issuer
has paid all accrued and unpaid interest required by the Securities
for such period, then the Issuer shall have the right to again
extend the interest payment period up to 18 months as herein
described. Prior to any Preferred Security Exchange, the Issuer
shall give Capital notice of its selection of any extended interest
payment period one Business Day prior to the earlier of (i) the
date Capital declares the related distribution to the holders of
the Series B Preferred Securities or (ii) the date Capital is
required to give notice of the record or payment date of such
related distribution to the holders of the Series B Preferred
Securities to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Series B
Preferred Securities, but in any event not less than two Business
Days prior to such record date; the Issuer shall cause Capital to
give such notice of the Issuer's selection of any extended interest
payment period to all holders of such Series B Preferred
Securities. After any Preferred Security Exchange, the Issuer shall
give the Holders of the Series B Debentures notice of its selection
of any extended interest payment prior to the date it is required
to give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable
self-regulatory organization, but in any event not less than two
Business Days prior to such Record Date.
Reference is made to the further provisions of this
Debenture set forth below. Such further provisions shall for all
purposes have the same effect as though fully set forth at this
place.
This Debenture shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon
shall have been signed by the Trustee under the Indenture referred
to on the reverse or succeeding pages hereof.
This Debenture is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the
Issuer (hereinafter called the "Securities") of the series
hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of March 10, 1994 and
supplemental indentures thereto (herein collectively called the
"Indenture"), duly executed and delivered by the Issuer and First
Trust National Association, as Trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the holders of the
Securities. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase
or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Debenture is one of a series designated as
the "Series B Adjustable Rate Debentures due 2043" (the "Series B
Debentures") of the Issuer, limited in aggregate principal amount
to $175,000,000.
In case an Event of Default with respect to the Series B
Debentures, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the Holders of not less than
66-2/3% in aggregate principal amount of the Securities at the time
Outstanding (as defined in the Indenture) of all series to be
affected (voting as one class), evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of each such
series; provided, however, that no such supplemental indenture
shall (i) extend the final maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of any interest thereon, or impair or
affect the rights of any Holder to institute suit for the payment
thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities,
the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each
Security affected. It is also provided in the Indenture that, with
respect to certain defaults or Events of Default regarding the
Securities of any series, prior to any declaration accelerating the
maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or,
in the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the Holders of
all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence shall
not, however, apply to a continuing default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of this
Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders
and owners of this Debenture and any Debenture which may be issued
in exchange or substitution herefor, irrespective of whether or not
any notation thereof is made upon this Debenture or such other
Debentures.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Debenture
in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Series B Debentures are issuable in registered form
without coupons in denominations of $25 and any integral multiple
of $25 at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, and in the manner and subject to
the limitations provided in the Indenture, but without the payment
of any service charge, Series B Debentures may be exchanged for a
like aggregate principal amount of Series B Debentures of other
authorized denominations.
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series B
Debentures relating to the Series B Preferred Securities (together
with any accrued but unpaid interest, including Additional
Interest, if any, on the portion being prepaid), without premium or
penalty,
(i) in whole or in part, as the case may be, at any time
on or after June 30, 1999; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after June 1, 1994 in
United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series B
Debentures for federal income tax purposes even if the Series
B Preferred Securities are exchanged for the Series B
Debentures pursuant to a Preferred Security Exchange,
all as further provided in the Indenture.
The Series B Debentures are, to the extent and in the
manner provided in the Indenture, expressly subordinate and junior
in right of payment of all Senior Indebtedness as provided in the
Indenture, and each holder of this Debenture, by his acceptance
hereof, agrees to and shall be bound by such provisions of the
Indenture and authorizes and directs the Trustee in his behalf to
take such action as appropriate to effectuate such subordination
and appoints the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as 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.
Upon due presentment for registration of transfer of this
Debenture at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, a new Debenture or Debentures of
authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to
the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent of the
Issuer or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Debenture (whether or not this
Debenture shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if
any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall
be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, 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 hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the
Indenture.
IN WITNESS WHEREOF, ConAgra, Inc. has caused this
instrument to be signed by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
Dated:
ConAgra, Inc.
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
First Trust National
Association, as Trustee
By__________________________
Authorized Officer
<PAGE>
==========================================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
Fourth Supplemental Indenture
Dated as of June 1, 1994
Providing for Issuance of
Series BB Debentures due 2043
in connection with the issuance by
ConAgra Capital, L.C. of its
Common Interests
==========================================================
<PAGE>
FOURTH SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of June 1, 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, in accordance with Sections 2.1, 2.3 and 8.1 of
the Subordinated Indenture dated as of March 10, 1994, between the
Issuer and the Trustee (the "Indenture"), this Supplemental
Indenture is being entered into in order to establish the form and
terms of a series of Securities to be issued in connection with the
issuance by ConAgra Capital, L.C., an Iowa limited liability
company ("Capital"), of its Common Interests (the "Common
Interests");
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Supplemental Indenture to provide, among other
things, for the authentication, delivery and administration of such
series of Securities;
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplement to Indenture according to its terms
and the terms of the Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
such series of 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 such series of Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined in the Indenture. All
capitalized terms used herein without definition shall have the
meanings specified in the Indenture.
SECTION 1.2 Additional Terms Defined. As used in this
Supplemental Indenture, the additional terms set forth below shall
have the following meanings:
"Additional Interest" shall have the meaning set forth in
Section 2.8 hereof.
"Common Interests" shall mean Common Membership Interests
as defined in the Operating Agreement.
"Event of Default" shall (a) prior to a Preferred
Security Exchange, have the meaning set forth in Section 2.12
hereof and (b) on and after a Preferred Security Exchange, have the
meaning set forth in Section 5.1 of the Indenture.
"Expense Agreement" means the Agreement as to Expenses
and Liabilities dated as of April 20, 1994 between the Issuer and
Capital.
"Guarantee" means the Payment and Guarantee Agreement
dated as of April 20, 1994, executed and delivered by the Issuer
for the benefit of the holders from time to time of the Common
Interests and other Preferred Interests of Capital.
"Managing Members" means HW Nebraska, Inc., a
Nebraska corporation, and CP Nebraska, Inc., a Nebraska
corporation, as managing members of Capital.
"Operating Agreement" means the Limited Liability Company
Operating Agreement dated as of March 11, 1994 by and among the
Managing Members.
"Preferred Interests" means Series Preferred Membership
Interests as defined in the Operating Agreement.
"Preferred Security Exchange" means an exchange of Series
B Debentures for Series B Preferred Securities pursuant to Section
7 of the Written Action.
"Series BB Debentures" shall mean the Series BB
Adjustable Rate Debentures as defined in the Fourth Supplemental
Indenture dated June 1, 1994.
"Series B Preferred Securities" shall mean Series B
Adjustable Rate Cumulative Preferred Securities as defined in the
Written Action.
"Underwriting Agreement" means the underwriting agreement
dated as of June 1, 1994, among the Issuer, Capital and Smith
Barney Shearson Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated as representatives of the several underwriters named
therein.
"Written Action" means the Written Action of the Managing
Members Pursuant to Section 3.02 of the Operating Agreement dated
June 1, 1994, establishing the terms of the Preferred Interests
relating to the Series BB Debentures.
ARTICLE TWO
ISSUANCE OF SERIES BB DEBENTURES
SECTION 2.1 Issuance of Series BB Debentures. There shall
be a series of Securities designated "Series BB Adjustable Rate
Debentures due 2043" (the "Series BB Debentures") and such Series
BB Debentures shall have the terms set forth in this Article Two in
accordance with the provisions of the Indenture and this
Supplemental Indenture.
SECTION 2.2 Limitation on Aggregate Principal Amount. The
aggregate principal amount of the Series BB Debentures which may be
authenticated and delivered shall be limited to $46,519,000.
SECTION 2.3 Maturity of the Series BB Debentures. Subject
to the provisions of Sections 2.4 and 2.5, the entire principal
amount of the Series BB Debentures shall become due and payable,
together with any accrued and unpaid interest thereon, including
Additional Interest, if any, on the earlier of (a) June 30, 2043
(subject to the Issuer's right to exchange the Series BB Debentures
for new debentures pursuant to Section 2.6) and (b) the date upon
which Capital shall be dissolved, wound-up or liquidated; provided
that the parenthetical to clause (a) and the entirety of clause (b)
shall be inapplicable on and after the date of any Preferred
Security Exchange.
SECTION 2.4 Mandatory Prepayment of Series BB Debentures
upon redemption of Common Interests. Notwithstanding the provisions
of Section 2.3, if Capital redeems the Preferred Interests in
accordance with the terms thereof, the Series BB Debentures shall
become due and payable in a principal amount together with any and
all accrued interest thereon, including Additional Interest, if
any. Any payment pursuant to this Section 2.4 shall be made prior
to 12:00 noon, New York time, on the date fixed for such redemption
or at such other time on such earlier date as Capital and the
Issuer shall agree.
SECTION 2.5 Optional Prepayment. Upon not less than 30
nor more than 60 days' prior notice, the Issuer shall have the
right to prepay the Series BB Debentures (together with any accrued
but unpaid interest, including Additional Interest, if any, on the
portion being prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any time
on or after June 30, 1999; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after June 1, 1994 in
United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series BB
Debentures for federal income tax purposes.
SECTION 2.6 Exchange of Series BB Debentures for New
Debentures. Notwithstanding the provisions of Section 2.3, prior to
a Preferred Security Exchange, in lieu of repaying the Series BB
Debentures when due, the Issuer may elect to exchange such Series
BB Debentures for new debentures with an equal aggregate principal
amount issued under the Indenture with terms substantially
identical to the Series BB Debentures; provided that the Issuer may
not so elect to exchange any Series BB Debentures, unless at the
time of such exchange Capital owns all of the Series BB Debentures
and, as determined in the judgment of the Managing Members and
Capital's financial advisor (selected by the Managing Members and
who shall be unaffiliated with the Issuer and shall be among the 30
largest investment banking firms, measured by total capital, in the
United States at the time of such exchange), (a) the Issuer is not
bankrupt, insolvent or in liquidation, (b) no Event of Default or
event that with the giving of notice or the passage of time would
constitute an Event of Default on any Securities pertaining to
Preferred Interests of any series, has occurred and is continuing,
(c) the Issuer has made timely payments on the Series BB Debentures
for the immediately preceding 18 months, (d) Capital is not in
arrears on payments of distributions on the Series B Preferred
Securities, (e) there is then no present reason to believe the
Issuer will be unable to make timely payment of principal and
interest on such new debentures, (f) such new debentures are being
issued 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 debentures are being issued at a rate
sufficient to provide payments equal to or greater than the amount
of distributions required under the Common Interests, (h) such
debentures are being issued for a term that is consistent with
market circumstances and the Issuer's financial condition, (i)
immediately prior to issuing such new debentures, the senior
unsecured long-term debt of the Issuer 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 the Issuer'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 of 1933, as amended) and any subordinated
unsecured long-term debt of the Issuer or, if there is no such debt
then outstanding, the Preferred Interests, 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 Interests of
the first series issued.
SECTION 2.7 Denomination and Interest on the Series BB
Debentures. (a) The Series BB Debentures shall be issuable as
Registered Securities in denominations of $25 and any multiple
thereof.
(b) The Series BB Debentures shall bear interest at a
rate equal to 7.06% per annum from June 8, 1994 to and including
August 31, 1994 and will bear interest for each monthly interest
period thereafter at a rate per annum equal to the Applicable
Interest Rate in effect for the Quarterly Period in which such
interest period occurs until the principal amount of the Series B
Debentures has been paid or duly made available for payment.
Except as provided below in this paragraph, the "Applicable
Interest Rate" for any Quarterly Period will be equal to 95% of the
Effective Rate (as defined below), but not less than 5.0% per
annum, or more than 10.5% per annum. The "Effective Rate" for any
Quarterly Period will be equal to the highest of the Treasury Bill
Rate, the Ten Year Constant Maturity Rate and the Thirty Year
Constant Maturity Rate (each as defined below) for such Quarterly
Period. In the event that the Issuer determines in good faith that
for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate cannot be determined for any Quarterly Period, then the
Effective Rate for such Quarterly Period will be equal to the
higher of whichever two of such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate can be determined for any Quarterly Period, then the
Effective Rate for such Quarterly Period will be equal to
whichever such rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate can be determined for any Quarterly Period, then the
Effective Rate for the preceding Quarterly Period will be
continued for such Quarterly Period.
Except as described below in this paragraph, the "Treasury
Bill Rate" for each Quarterly Period will be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period (as defined
below)) for three-month U.S. Treasury bills, as published weekly by
the Federal Reserve Board (as defined below) during the Calendar
Period immediately preceding the last ten calendar days preceding
the Quarterly Period for which the interest rate on the Series BB
Debenture is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum market
discount rate during any such Calendar Period, then the Treasury
Bill Rate for such Quarterly Period will be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period) for
three-month U.S. Treasury bills, as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Issuer. In the
event that a per annum market discount rate for three-month U.S.
Treasury bills is not published by the Federal Reserve Board or by
any Federal Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Treasury Bill Rate for
such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one
weekly per annum market discount rate, if only one such rate is
published during the relevant Calendar Period) for all of the U.S.
Treasury bills then having remaining maturities of not less than 80
nor more than 100 days, as published during such Calendar Period by
the Federal Reserve Board or, if the Federal Reserve Board does not
publish such rates, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Issuer. In the
event that the Issuer determines in good faith that for any reason
no such U.S. Treasury bill rates are published as provided above
during such Calendar Period, then the Treasury Bill Rate for such
Quarterly Period will be the arithmetic average of the per annum
market discount rates based upon the closing bids during such
Calendar Period for each of the issues of marketable
non-interest-bearing U.S. Treasury securities with a remaining
maturity of not less than 80 nor more than 100 days from the date
of each such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if daily
quotations are not generally available) to the Issuer by at least
three recognized dealers in U.S. Government securities selected by
the Issuer. In the event that the Issuer determines in good faith
that for any reason the Issuer cannot determine the Treasury Bill
Rate for any Quarterly Period as provided above in this paragraph,
the Treasury Bill Rate for such Quarterly Period will be the
arithmetic average of the per annum market discount rates based
upon the closing bids during such Calendar Period for each of the
issues of marketable interest-bearing U.S. Treasury securities with
a remaining maturity of not less than 80 nor more than 100 days, as
chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally available) to
the Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
Except as described below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Period will be the
arithmetic average of the two most recent weekly per annum Ten Year
Average Yields (as defined below) (or the one weekly per annum Ten
Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately preceding the
last ten calendar days preceding the Quarterly Period for which the
interest rate on the Series BB Debenture is being determined. In
the event that the Federal Reserve Board does not publish such a
weekly per annum Ten Year Average Yield during such Calendar
Period, then the Ten Year Constant Maturity Rate for such Quarterly
Period will be the arithmetic average of the two most recent weekly
per annum Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Issuer. In the event that a
per annum Ten Year Average Yield is not published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then
the Ten Year Constant Maturity Rate for such Quarterly Period will
be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly per annum average
yield to maturity, if only one such yield is published during the
relevant Calendar Period) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special
Securities (as defined below)) then having remaining maturities of
not less than eight nor more than twelve years, as published during
such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board does not publish such yields, by any Federal
Reserve Bank or by any U.S. Government department or agency
selected by the Issuer. In the event that the Issuer determines in
good faith that for any reason the Issuer cannot determine the Ten
Year Constant Maturity Rate for any Quarterly Period as provided
above in this paragraph, then the Ten Year Constant Maturity Rate
for such Quarterly Period will be the arithmetic average of the per
annum average yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight
nor more than twelve years from the date of each such quotation, as
chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally available) to
the Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
Except as described below in this paragraph, the "Thirty Year
Constant Maturity Rate" for each Quarterly Period will be the
arithmetic average of the two most recent weekly per annum Thirty
Year Average Yields (as defined below) (or the one weekly per annum
Thirty Year Average Yield, if only one such yield is published
during the relevant Calendar Period), as published weekly by the
Federal Reserve Board during the Calendar Period immediately
preceding the last ten calendar days preceding the Quarterly Period
for which the interest rate on the Series BB Debenture is being
determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum Thirty Year Average Yield during
such Calendar Period, then the Thirty Year Constant Maturity Rate
for such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum Thirty Year Average Yields (or the one
weekly per annum Thirty Year Average Yield, if only one such yield
is published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the Issuer.
In the event that a per annum Thirty Year Average Yield is not
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Thirty Year Constant Maturity Rate for
such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum average yields to maturity (or the one
weekly per annum average yield to maturity, if only one such yield
is published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) then having remaining
maturities of not less than twenty-eight nor more than thirty
years, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board does not publish
such yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Issuer. In the event that the
Issuer determines in good faith that for any reason the Issuer
cannot determine the Thirty Year Constant Maturity Rate for any
Quarterly Period as provided above in this paragraph, then the
Thirty Year Constant Maturity Rate for such Quarterly Period will
be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period
for each of the issues of actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) with
a final maturity date not less than twenty-eight nor more than
thirty years (or, in the absence of which, having maturities of not
less than twenty-five years or, in the further absence of which,
twenty years) from the date of each such quotation, as chosen and
quoted daily for each business day in New York City (or less
frequently if daily quotations are not generally available) to the
Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Thirty Year Constant Maturity Rate will each be rounded to
the nearest five hundredths of a percent.
The Applicable Interest Rate with respect to each Quarterly
Period will be calculated as promptly as practicable by the Issuer
according to the appropriate method described above.
As used above, the term "Calendar Period" means a period of
fourteen calendar days; the term "Federal Reserve Board" means the
Board of Governors of the Federal Reserve System; the term
"Quarterly Period" means the three-month period ending November 30,
1994 and each three-month period ending February 28 (or February
29), May 31, August 31, and November 30 thereafter; the term
"Special Securities" means securities which can, at the option of
the holder, be surrendered at face value in payment of any Federal
estate tax or which provide tax benefits to the holder and are
priced to reflect such tax benefits or which were originally issued
at a deep or substantial discount; the term "Ten Year Average
Yield" means the average yield to maturity for actively traded
marketable U.S. Treasury fixed interest rate securities (adjusted
to constant maturities of ten years); and the term "Thirty Year
Average Yield" means the average yield to maturity for actively
traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of thirty years).
To the extent allowed by law, the Issuer will also pay
interest on overdue installments of interest at the rate used to
compute such installments. The amount of interest payable for any
full monthly interest period shall be computed on the basis of
twelve 30-day months and a 360-day year and, for any period shorter
than a full monthly interest period, shall be computed on the basis
of the actual number of days elapsed in such period. Such interest
shall be payable monthly on the last day of each calendar month (an
"Interest Payment Date") commencing on June 30, 1994 to the holder
or holders of the Series BB Debenture on the relevant record date
(each, a "Record Date"), which shall be one Business Day prior to
the relevant Interest Payment Date. If Interest Payment Date 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 (and the Record Date for such Interest
Payment Date shall be one Business Day prior to the date on which
payment is to be made), in each case with the same force and effect
as if made on such date.
SECTION 2.8 Additional Interest. If at any time following
the issuance of the Common Interests, Capital shall be required to
pay, with respect to its income derived from the interest payments
on the Series BB Debentures, 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, the Issuer will pay as interest such
additional amounts ("Additional Interest") as may be necessary in
order that the net amounts received and retained by Capital after
the payment of such taxes, duties, assessments or governmental
charges shall result in Capital's having such funds as it would
have had in the absence of the payment of such taxes, duties,
assessments or governmental charges.
SECTION 2.9 Extension of Interest Period. Notwithstanding
the provisions of Section 2.7 hereof, the Issuer shall have the
right at any time or times during the term of the Series BB
Debentures, so long as the Issuer is not in default in the payment
of interest under any of the Securities, to extend the interest
payment period for the Series BB Debentures up to 18 months;
provided that at the end of such period the Issuer shall pay all
installments of interest then accrued and unpaid (together with
interest thereon at the rate used to compute such installments to
the extent permitted by applicable law); provided further that,
during any such extended interest period, neither the Issuer nor
any majority owned subsidiary of the Issuer 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
the Issuer'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 the Series BB
Debentures if an extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for the
Series BB Debentures, the Issuer may further extend the interest
payment period for the Series BB Debentures; provided that such
extended interest payment period for the Series BB Debentures
together with all such further extensions thereof, may not exceed
18 months; and provided further that any such further extended
interest period may only be selected with respect to the Series BB
Debentures if a further extended interest period of identical
length is simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the Issuer
has paid all accrued and unpaid interest required by the Series BB
Debentures for such period, then the Issuer shall have the right to
again extend the interest payment period up to 18 months as herein
described. The Issuer shall give Capital notice of its selection of
any extended interest payment period one Business Day prior to the
earlier of (i) the date Capital declares the related distribution,
if any, to holders of the Common Interests or (ii) the date Capital
is required to give notice of the record or payment date of such
related distribution to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Common
Interests, but in any event not less than two Business Days prior
to such record date.
SECTION 2.10 Set-off. Notwithstanding anything to the
contrary herein, prior to any Preferred Security Exchange the
Issuer shall have the right to set off any payment it is otherwise
required to make hereunder with and to the extent the Issuer has
theretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee provided Issuer shall not
affect any set off with respect to the Series BB Debentures until
all payments required under the Series BB Debentures have been
made.
SECTION 2.11 Certain Covenants. (a) So long as the
Preferred Interests remain outstanding, neither the Issuer nor any
majority-owned subsidiary of the Issuer shall declare or pay any
dividend on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Issuer'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 the Issuer'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
Issuer is in default with respect to its payment obligations under
the Guarantee or the Expense Agreement or there shall have occurred
an Event of Default or any event that, with the giving of notice or
the lapse of time or both, would constitute an Event of Default
under the Securities.
(b) So long as the Preferred Interests remain
outstanding, the Issuer shall (i) not cause or permit any Common
Interests to be transferred, (ii) maintain direct or indirect
ownership of all outstanding securities in Capital other than the
Preferred Interests of any series and any other securities
permitted to be issued by Capital that would not cause Capital to
become an "investment company" under the Investment Company Act of
1940, as amended, (iii) cause at least 21% of the total value of
Capital and at least 21% of all interests in the capital, income,
gain, loss, deduction and credit of Capital to be represented by
Common Interests, (iv) not voluntarily dissolve, windup or
liquidate Capital or either of the Managing Members, (v) cause HW
Nebraska, Inc. and CP Nebraska, Inc. to remain the Managing Members
of Capital and timely perform all of their respective duties as
Managing Members of Capital, and (vi) use reasonable efforts to
cause 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 the Issuer may permit Capital, solely for
the purpose of changing its domicile or avoiding tax consequences
adverse to the Issuer, Capital or holders of Preferred Interests,
to consolidate or merge with or into a limited liability company or
a limited partnership formed under the laws of any state of the
United States of America; provided that (1) such successor limited
liability company or limited partnership (x) expressly assumes all
of the obligations of Capital under the Common Interests and other
series of Preferred Interests then outstanding or (y) substitutes
for the Common Interests and any series of Preferred Interests then
outstanding other securities having substantially the same terms as
the Common Interests and any such Preferred Interests (the
"Successor Securities") so long as the Successor Securities rank,
with respect to participation in the profits and assets of such
successor entity, at least as senior as the Common Interests and
any such Preferred Interests rank, respectively, with respect to
participation in the profits and assets of Capital, (2) the Issuer
expressly acknowledges such successor as the holder of all of the
Series BB Debentures and other series of debentures issued under
the Indenture then outstanding, (3) 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, (4) the holders
of Common Interests and any such Preferred Interests do not suffer
any adverse tax consequences as a result of such merger or
consolidation, (5) such merger or consolidation does not cause any
Preferred Interests to be downgraded by any "nationally recognized
statistical rating organization," as that 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 (6) following
such merger or consolidation, neither the Issuer nor such successor
limited liability company or limited partnership will be an
"investment company" for purposes of the Investment Company Act of
1940, as amended.
(c) So long as the Common Interests remain
outstanding, the Issuer shall not consolidate with or merge into
any other Person or sell its property and assets as, or
substantially as, an entirety to any Person and shall not permit
any Person to merge into or consolidate with the Issuer unless (i)
in case the Issuer shall consolidate with or merge into another
Person or sell its properties and assets as, or substantially as,
an entirety to any Person, the Person formed by such consolidation
or into which the Issuer is merged or the Person which purchases
the properties and assets of the Issuer as, or substantially, as an
entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States
of America, any State or the District of Columbia, and shall
expressly assume the Issuer's obligations under the Indenture, this
Supplemental Indenture and the Series BB Debentures and (ii)
immediately after giving effect to the transaction no Event of
Default shall have occurred and be continuing.
(d) So long as the Series B Preferred Securities
remain outstanding, the provisions of Sections 2.11(b) and (c)
shall remain in full force and effect notwithstanding satisfaction
and discharge of the Indenture pursuant to Section 10.1 thereof.
SECTION 2.12 Events of Default; Remedies. Prior to any
Preferred Security Exchange, "Event of Default" means any one of
the following events:
(a) failure to pay when due any interest under any
Securities, including any Additional Interest, and such failure
shall continue for a period of 30 days (whether or not payment is
prohibited by the provisions contained in Article Thirteen of the
Indenture or otherwise); provided that a valid extension of the
interest payment period by the Issuer shall not constitute a
default in the payment of interest for this purpose;
(b) failure to pay when due any principal under any
Securities (whether or not payment is prohibited by the provisions
contained in Article Thirteen of the Indenture or otherwise);
(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 (other than a covenant or warranty in
respect of the Series BB Debentures a default in the performance or
breach of which is elsewhere in this Section specifically dealt
with) or contained in the Indenture, this Supplemental Indenture or
the Series BB Debentures, and continuance of such default or breach
for a period of 90 days after there as been given, by registered or
certified mail, to the Issuer by the Trustee or any Holder hereof,
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;
(d) the dissolution, or winding up or liquidation
of Capital;
(e) 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
(f) 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.
If an Event of Default shall occur and be continuing,
then Capital will have the right (i) to declare the principal of
and the interest on the Series BB Debentures (including any
Additional Interest and any interest subject to an extension
election) and any other amounts payable under the Series BB
Debentures to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series BB Debentures to the contrary
notwithstanding and (ii) to enforce its other rights hereunder and
thereunder. Capital may not accelerate the principal amount of any
Series BB Debenture unless the principal amount of all Securities
is accelerated.
If an Event of Default specified in clauses (d), (e) or
(f) above shall have occurred, the principal of and interest on the
Series BB Debentures shall thereupon and concurrently become due
and payable without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived, anything in the
Indenture, this Supplemental Indenture or the Series BB Debentures
to the contrary notwithstanding.
If an Event of Default specified in clause (a) or (b)
above shall have occurred and be continuing and Capital shall have
failed to pay any distributions on the Common Interests when due
(other than as a result of any valid extension of the interest
payment period by the Issuer for the Series BB Debentures) or to
pay any portion of the redemption price of the Common Interests
called for redemption, then any Holder of Common Interests may, as
set forth in the terms of the Common Interests, enforce directly
against the Issuer Capital's right hereunder to receive payments of
principal and interest on the Series BB Debentures relating to such
Common Interests but only in an amount sufficient to enable Capital
to pay such distributions or redemption price.
Except as provided in this Section 2.12, Holders of
Common Interests shall have no rights to enforce any obligations of
the Issuer under the Indenture, this Supplemental Indenture or the
Series BB Debentures.
On and after a Preferred Security Exchange, the provisions
of Article Five of the Indenture, including without limitation the
definition of an "Event of Default", shall apply to the Series BB
Debentures and this Section 2.12 shall be of no further force or
effect.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall be
deemed given by a party hereto if in writing and delivered
personally or by telegram or facsimile transmission or by
registered or certified mail (return receipt requested) to the
other party at the following address for such party (or at such
other address as shall be specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The Issuer shall
have the right at all times to assign any of its rights or
obligations under the Indenture, this Supplemental Indenture and
the Series BB Debentures to a direct or indirect wholly owned
subsidiary of the Issuer(other than to any Managing Member);
provided that, in the event of any such assignment, the Issuer
shall remain jointly and severally liable for all such obligations;
and provided further that in the event of an assignment prior to a
Preferred Security Exchange the Issuer shall have received an
opinion of nationally recognized tax counsel that such assignment
shall not constitute a taxable event of the holders of Common
Interests for federal income tax purposes. Except as otherwise
provided in this Supplemental Indenture, Capital may not assign any
of its rights under the Series BB Debentures without the prior
written consent of the Issuer. Subject to the foregoing, the
Indenture, this Supplemental Indenture and the Series BB Debentures
shall be binding upon and inure to the benefit of the Issuer,
Capital, the Holders from time to time of the Series BB Debentures
and their respective successors and assigns. Except as provided in
this Section 3.2 or elsewhere in this Supplemental Indenture, none
of the Indenture, this Supplemental Indenture nor the Series BB
Debentures may be assigned by either the Issuer or Capital and any
assignment by the Issuer or Capital in contravention of this
Section 3.2 shall be null and void.
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL INDENTURE
AND THE SERIES BB DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.4 Counterparts. This Supplemental Indenture may
be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and
the same instrument.
Section 3.5 Amendments. This Supplemental Indenture may
be amended as set forth in Article Eight of the Indenture.
Notwithstanding the foregoing, so long as any Common Interests
shall remain outstanding, (i) no amendment to the provisions of the
Indenture, this Supplemental Indenture or the Series BB Debentures
shall be made that adversely affects the holders of any Common
Interest then outstanding, or terminate the Indenture, this
Supplemental Indenture or the Series BB Debentures, without in each
case the prior consent of holders of 66-2/3% of all Common
Interests then outstanding, unless and until all Securities and all
accrued and unpaid interest thereon (including Additional Interest,
if any) shall have been paid in full and (ii) without the prior
consent of holders of 100% of all Common Interests then
outstanding, no amendment shall be made to the provisions of this
clause (ii) of Section 3.5 or to (a) extend the stated maturity of
the principal of any Debenture, 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 or
interest thereon is payable or impair the right to institute suit
for the enforcement of any payment on any Debenture when due or (b)
reduce the aforesaid percentage in principal amount of Debentures
of any series the consent of the holders of which is required for
any such modification. Any required consent of holders of Common
Interest pursuant to this Section 3.5 shall be in writing or shall
be obtained at a meeting of Common Interest holders.
Section 3.6 Waivers. Capital may not waive compliance or
waive any default in compliance by the Issuer of any covenant or
other term in the Indenture, this Supplemental Indenture or the
Series BB Debentures without the approval of the same percentage of
holders of Common Interests, obtained in the same manner, as would
be required for an amendment of the Indenture, this Supplemental
Indenture or the Series BB Debentures to the same effect; provided
that if no approval would be required for any such amendment, then
Capital may waive such compliance or default in any manner that the
parties shall agree.
Section 3.7 Third Party Beneficiaries. The Issuer hereby
acknowledges that the holders from time to time of the Common
Interests shall expressly be third party beneficiaries of this
Supplemental Indenture.
Section 3.8 Amendment to Indenture. Pursuant to Section
8.1 of the Indenture, Section 8.2 of the Indenture is hereby
amended for purposes of any and all Securities, including without
limitation the Series BB Debentures, issued under the Indenture by
substituting the phrase "of not less than 66-2/3%" for the phrase
"of not less than a majority" in the first clause of such Section
8.2.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the
date and year first above written.
CONAGRA, INC.
By: /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President, Finance
and Treasurer
[SEAL]
Attest:
/s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ G. S. Kessler
Name: G.S. Kessler
Title: Assistant Vice President
[SEAL]
Attest:
/s/ Sheryl A. Christopherson
Name: Sheryl A. Christopherson
Title: Assistant Secretary
<PAGE>
Exhibit A
[Form of Face of Series BB Debenture]
No.
ConAgra, Inc.
Series BB Debentures due 2043
ConAgra, Inc., a Delaware corporation (the "Issuer"), for
value received, hereby promises to pay to or registered assigns, at
the office or agency of the Issuer in The City of New York, the
principal sum of $46,519,000 Dollars on May 31, 1995, in such coin
or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private
debts, and to pay interest, at a rate equal to 7.06% per annum from
June 8, 1994 to and including August 31, 1994 and interest for each
monthly interest period thereafter at a rate per annum equal to the
Applicable Interest Rate in effect for the Quarterly Period in
which such interest period occurs until such principal sum is paid
or duly made available for payment.
Except as provided below in this paragraph, the "Applicable
Interest Rate" for any Quarterly Period will be equal to 95% of the
Effective Rate (as defined below), but not less than 5.0% per
annum, or more than 10.5% per annum. The "Effective Rate" for any
Quarterly Period will be equal to the highest of the Treasury Bill
Rate, the Ten Year Constant Maturity Rate and the Thirty Year
Constant Maturity Rate (each as defined below) for such Quarterly
Period. In the event that the Issuer determines in good faith that
for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate cannot be determined for any Quarterly Period, then the
Effective Rate for such Quarterly Period will be equal to the
higher of whichever two of such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate can be determined for any Quarterly Period, then the
Effective Rate for such Quarterly Period will be equal to
whichever such rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity
Rate can be determined for any Quarterly Period, then the
Effective Rate for the preceding Quarterly Period will be
continued for such Quarterly Period.
Except as described below in this paragraph, the "Treasury
Bill Rate" for each Quarterly Period will be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period (as defined
below)) for three-month U.S. Treasury bills, as published weekly by
the Federal Reserve Board (as defined below) during the Calendar
Period immediately preceding the last ten calendar days preceding
the Quarterly Period for which the interest rate on the Series BB
Debentures is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum market
discount rate during any such Calendar Period, then the Treasury
Bill Rate for such Quarterly Period will be the arithmetic average
of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period) for
three-month U.S. Treasury bills, as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Issuer. In the
event that a per annum market discount rate for three-month U.S.
Treasury bills is not published by the Federal Reserve Board or by
any Federal Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Treasury Bill Rate for
such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one
weekly per annum market discount rate, if only one such rate is
published during the relevant Calendar Period) for all of the U.S.
Treasury bills then having remaining maturities of not less than 80
nor more than 100 days, as published during such Calendar Period by
the Federal Reserve Board or, if the Federal Reserve Board does not
publish such rates, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Issuer. In the
event that the Issuer determines in good faith that for any reason
no such U.S. Treasury bill rates are published as provided above
during such Calendar Period, then the Treasury Bill Rate for such
Quarterly Period will be the arithmetic average of the per annum
market discount rates based upon the closing bids during such
Calendar Period for each of the issues of marketable
non-interest-bearing U.S. Treasury securities with a remaining
maturity of not less than 80 nor more than 100 days from the date
of each such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if daily
quotations are not generally available) to the Issuer by at least
three recognized dealers in U.S. Government securities selected by
the Issuer. In the event that the Issuer determines in good faith
that for any reason the Issuer cannot determine the Treasury Bill
Rate for any Quarterly Period as provided above in this paragraph,
the Treasury Bill Rate for such Quarterly Period will be the
arithmetic average of the per annum market discount rates based
upon the closing bids during such Calendar Period for each of the
issues of marketable interest-bearing U.S. Treasury securities with
a remaining maturity of not less than 80 nor more than 100 days, as
chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally available) to
the Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
Except as described below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Period will be the
arithmetic average of the two most recent weekly per annum Ten Year
Average Yields (as defined below) (or the one weekly per annum Ten
Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately preceding the
last ten calendar days preceding the Quarterly Period for which the
interest rate on the Series BB Debentures is being determined. In
the event that the Federal Reserve Board does not publish such a
weekly per annum Ten Year Average Yield during such Calendar
Period, then the Ten Year Constant Maturity Rate for such Quarterly
Period will be the arithmetic average of the two most recent weekly
per annum Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Issuer. In the event that a
per annum Ten Year Average Yield is not published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then
the Ten Year Constant Maturity Rate for such Quarterly Period will
be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly per annum average
yield to maturity, if only one such yield is published during the
relevant Calendar Period) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special
Securities (as defined below)) then having remaining maturities of
not less than eight nor more than twelve years, as published during
such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board does not publish such yields, by any Federal
Reserve Bank or by any U.S. Government department or agency
selected by the Issuer. In the event that the Issuer determines in
good faith that for any reason the Issuer cannot determine the Ten
Year Constant Maturity Rate for any Quarterly Period as provided
above in this paragraph, then the Ten Year Constant Maturity Rate
for such Quarterly Period will be the arithmetic average of the per
annum average yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight
nor more than twelve years from the date of each such quotation, as
chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally available) to
the Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
Except as described below in this paragraph, the "Thirty Year
Constant Maturity Rate" for each Quarterly Period will be the
arithmetic average of the two most recent weekly per annum Thirty
Year Average Yields (as defined below) (or the one weekly per annum
Thirty Year Average Yield, if only one such yield is published
during the relevant Calendar Period), as published weekly by the
Federal Reserve Board during the Calendar Period immediately
preceding the last ten calendar days preceding the Quarterly Period
for which the interest rate on the Series BB Debentures is being
determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum Thirty Year Average Yield during
such Calendar Period, then the Thirty Year Constant Maturity Rate
for such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum Thirty Year Average Yields (or the one
weekly per annum Thirty Year Average Yield, if only one such yield
is published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the Issuer.
In the event that a per annum Thirty Year Average Yield is not
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Thirty Year Constant Maturity Rate for
such Quarterly Period will be the arithmetic average of the two
most recent weekly per annum average yields to maturity (or the one
weekly per annum average yield to maturity, if only one such yield
is published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) then having remaining
maturities of not less than twenty-eight nor more than thirty
years, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board does not publish
such yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Issuer. In the event that the
Issuer determines in good faith that for any reason the Issuer
cannot determine the Thirty Year Constant Maturity Rate for any
Quarterly Period as provided above in this paragraph, then the
Thirty Year Constant Maturity Rate for such Quarterly Period will
be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period
for each of the issues of actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) with
a final maturity date not less than twenty-eight nor more than
thirty years (or, in the absence of which, having maturities of not
less than twenty-five years or, in the further absence of which,
twenty years) from the date of each such quotation, as chosen and
quoted daily for each business day in New York City (or less
frequently if daily quotations are not generally available) to the
Issuer by at least three recognized dealers in U.S. Government
securities selected by the Issuer.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Thirty Year Constant Maturity Rate will each be rounded to
the nearest five hundredths of a percent.
The Applicable Interest Rate with respect to each Quarterly
Period will be calculated as promptly as practicable by the Issuer
according to the appropriate method described above.
As used above, the term "Calendar Period" means a period of
fourteen calendar days; the term "Federal Reserve Board" means the
Board of Governors of the Federal Reserve System; the term
"Quarterly Period" means the three-month period ending November 30,
1994 and each three-month period ending February 28 (or February
29), May 31, August 31, and November 30 thereafter; the term
"Special Securities" means securities which can, at the option of
the holder, be surrendered at face value in payment of any Federal
estate tax or which provide tax benefits to the holder and are
priced to reflect such tax benefits or which were originally issued
at a deep or substantial discount; the term "Ten Year Average
Yield" means the average yield to maturity for actively traded
marketable U.S. Treasury fixed interest rate securities (adjusted
to constant maturities of ten years); and the term "Thirty Year
Average Yield" means the average yield to maturity for actively
traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of thirty years).
To the extent allowed by law, the Issuer will also pay
interest on overdue installments of interest at the rate used to
compute such installments. The amount of interest payable for any
full monthly interest period shall be computed on the basis of
twelve 30-day months and a 360-day year and, for any period shorter
than a full monthly interest period, shall be computed on the basis
of the actual number of days elapsed in such period. Such interest
shall be payable monthly on the last day (an "Interest Payment
Date") of each calendar month, commencing on May 31, 1994 to the
holder or holders of this Debenture on the relevant record date
(each, a "Record Date"), which shall be one Business Day prior to
the relevant Interest Payment Date. If Interest Payment Date 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 (and the Record Date for such Interest
Payment Date shall be one Business Day prior to the date on which
payment is to be made), in each case with the same force and effect
as if made on such date. If at any time following the issuance of
the Common Securities, Capital shall be required to pay, with
respect to its income derived from the interest payments on the
Series BB Debentures, 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, the Issuer will pay as interest such additional
amounts ("Additional Interest") as may be necessary in order that
the net amounts received and retained by Capital after the payment
of such taxes, duties, assessments or governmental charges shall
result in Capital's having such funds as it would have had in the
absence of the payment of such taxes, duties, assessments or
governmental charges. Notwithstanding the forgoing, the Issuer
shall have the right at any time or times during the term of the
Series BB Debentures, so long as the Issuer is not in default in
the payment of interest under any of the Securities, to extend the
interest payment period for the Series BB Debentures up to 18
months; provided that at the end of such period the Issuer shall
pay all installments of interest then accrued and unpaid (together
with interest thereon at the rate used to compute such installments
to the extent permitted by applicable law); provided further that,
during any such extended interest period, neither the Issuer nor
any majority owned subsidiary of the Issuer 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
the Issuer'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 the Series BB
Debentures if an extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for the
Series BB Debentures, the Issuer may further extend the interest
payment period for the Series BB Debentures; provided that such
extended interest payment period for the Series BB Debentures
together with all such further extensions thereof, may not exceed
18 months; and provided further that any such further extended
interest period may only be selected with respect to the Series BB
Debentures if a further extended interest period of identical
length is simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the Issuer
has paid all accrued and unpaid interest required by the Securities
for such period, then the Issuer shall have the right to again
extend the interest payment period up to 18 months as herein
described. The Issuer shall give Capital notice of its selection of
any extended interest payment period one Business Day prior to the
earlier of (i) the date Capital declares the related distribution,
if any, to the holders of the Common Interests or (ii) the date
Capital is required to give notice of the record or payment date of
such related distribution, if any, to the holders of the Common
Interests to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Common Interests,
but in any event not less than two Business Days prior to such
Record Date.
Reference is made to the further provisions of this
Debenture set forth on the reverse hereof. Such further provisions
shall for all purposes have the same effect as though fully set
forth at this place.
This Debenture shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon
shall have been signed by the Trustee under the Indenture referred
to below.
This Debenture is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the
Issuer (hereinafter called the "Securities") of the series
hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of March 10, 1994 and
supplemental indentures thereto (herein collectively called the
"Indenture"), duly executed and delivered by the Issuer and First
Trust National Association, as Trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the holders of the
Securities. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase
or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Debenture is one of a series designated as
the "Series BB Debentures due 2043" (the "Series BB Debentures") of
the Issuer, limited in aggregate principal amount to $46,519,000.
In case an Event of Default with respect to the Series BB
Debentures, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the Holders of not less than
66-2/3% in aggregate principal amount of the Securities at the time
Outstanding (as defined in the Indenture) of all series to be
affected (voting as one class), evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of each such
series; provided, however, that no such supplemental indenture
shall (i) extend the final maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of any interest thereon, or impair or
affect the rights of any Holder to institute suit for the payment
thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities,
the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each
Security affected. It is also provided in the Indenture that, with
respect to certain defaults or Events of Default regarding the
Securities of any series, prior to any declaration accelerating the
maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or,
in the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the Holders of
all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence shall
not, however, apply to a continuing default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of this
Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders
and owners of this Debenture and any Debenture which may be issued
in exchange or substitution herefor, irrespective of whether or not
any notation thereof is made upon this Debenture or such other
Debentures.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Debenture
in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Series BB Debentures are issuable in registered form
without coupons in denominations of $25 and any integral multiple
of $25 at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, and in the manner and subject to
the limitations provided in the Indenture, but without the payment
of any service charge, Series BB Debentures may be exchanged for a
like aggregate principal amount of Series BB Debentures of other
authorized denominations.
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series BB
Debentures (together with any accrued but unpaid interest,
including Additional Interest, if any, on the portion being
prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any time
on or after June 30, 1999; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after June 1, 1994 in
United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series BB
Debentures for federal income tax purposes,
all as further provided in the Indenture.
The Series BB Debentures are, to the extent and in the
manner provided in the Indenture, expressly subordinate and junior
in right of payment of all Senior Indebtedness as provided in the
Indenture, and each holder of this Debenture, by his acceptance
hereof, agrees to and shall be bound by such provisions of the
Indenture and authorizes and directs the Trustee in his behalf to
take such action as appropriate to effectuate such subordination
and appoints the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as 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.
Upon due presentment for registration of transfer of this
Debenture at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, a new Debenture or Debentures of
authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to
the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent of the
Issuer or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Debenture (whether or not this
Debenture shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if
any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall
be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, 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 hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the
Indenture.
Dated:
ConAgra, Inc.
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
First Trust National
Association, as Trustee
By__________________________
Authorized Signatory
<PAGE>
========================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
Fifth Supplemental Indenture
Dated as of January 26, 1995
Providing for Issuance of 9.35%
Series C Debentures due 2044
in connection with the issuance by
ConAgra Capital, L.C. of its
Series C Cumulative Preferred Securities
========================================
<PAGE>
FIFTH SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of January 26, 1995, 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, in accordance with Sections 2.1, 2.3 and 8.1 of
the Subordinated Indenture dated as of March 10, 1994, between the
Issuer and the Trustee (the "Indenture"), this Supplemental
Indenture is being entered into in order to establish the form and
terms of a series of Securities to be issued in connection with the
issuance by ConAgra Capital, L.C., an Iowa limited liability
company ("Capital"), of its Series C Cumulative Preferred
Securities (the "Series C Preferred Securities");
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Supplemental Indenture to provide, among other
things, for the authentication, delivery and administration of such
series of Securities;
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplement to Indenture according to its terms
and the terms of the Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
such series of 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 such series of Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined in the Indenture. All
capitalized terms used herein without definition shall have the
meanings specified in the Indenture.
SECTION 1.2 Additional Terms Defined. As used in this
Supplemental Indenture, the additional terms set forth below shall
have the following meanings:
"Additional Interest" shall have the meaning set forth in
Section 2.8 hereof.
"Common Interests" shall mean Common Membership Interests
as defined in the Operating Agreement.
"DTC" shall mean The Depository Trust Company as initial
depositary of the Series C Debentures upon a Preferred Security
Exchange.
"Event of Default" shall (a) prior to a Preferred
Security Exchange, have the meaning set forth in Section 2.12
hereof and (b) on and after a Preferred Security Exchange, have the
meaning set forth in Section 5.1 of the Indenture.
"Expense Agreement" means the Agreement as to Expenses
and Liabilities dated as of April 20, 1994, between the Issuer and
Capital.
"Guarantee" means the Payment and Guarantee Agreement
dated as of April 20, 1994, executed and delivered by the Issuer
for the benefit of the holders from time to time of the Series C
Preferred Securities and other Preferred Interests of Capital.
"Managing Members" means HW Nebraska, Inc., a
Nebraska corporation, and CP Nebraska, Inc., a Nebraska
corporation, as managing members of Capital.
"Operating Agreement" means the Limited Liability Company
Operating Agreement dated as of March 11, 1994, by and among the
Managing Members.
"Preferred Interests" means Series Preferred Membership
Interests as defined in the Operating Agreement.
"Preferred Security Exchange" means an exchange of Series
C Debentures for Series C Preferred Securities pursuant to Section
7 of the Written Action.
"Underwriting Agreement" means the underwriting agreement
dated as of January 26, 1995, among the Issuer, Capital and Smith
Barney Inc. as representative of the several underwriters named
therein.
"Written Action" means the Written Action of the Managing
Members Pursuant to Section 3.02 of the Operating Agreement dated
January 26, 1995, establishing the terms of the Series C Preferred
Securities.
ARTICLE TWO
ISSUANCE OF SERIES C DEBENTURES
SECTION 2.1 Issuance of Series C Debentures. There shall
be a series of Securities designated "Series C Debentures due 2044"
(the "Series C Debentures") and such Series C Debentures shall have
the terms set forth in this Article Two in accordance with the
provisions of the Indenture and this Supplemental Indenture.
SECTION 2.2 Limitation on Aggregate Principal Amount. The
aggregate principal amount of the Series C Debentures which may be
authenticated and delivered shall be limited to $250,000,000.
SECTION 2.3 Maturity of the Series C Debentures. Subject
to the provisions of Sections 2.4 and 2.5, the entire principal
amount of the Series C Debentures shall become due and payable,
together with any accrued and unpaid interest thereon, including
Additional Interest, if any, on the earlier of (a) February 29,
2044 (subject to the Issuer's right to exchange the Series C
Debentures for new debentures pursuant to Section 2.6) and (b) the
date upon which Capital shall be dissolved, wound-up or liquidated;
provided that the parenthetical to clause (a) and the entirety of
clause (b) shall be inapplicable on and after the date of any
Preferred Security Exchange.
SECTION 2.4 Mandatory Prepayment of Series C Debentures
upon redemption of Series C Preferred Securities. Notwithstanding
the provisions of Section 2.3, if Capital redeems the Series C
Preferred Securities in accordance with the terms thereof, the
Series C Debentures pertaining to the Series C Preferred Securities
shall become due and payable in a principal equal to the aggregate
stated liquidation preference of the Series C Preferred Securities
so redeemed, together with any and all accrued interest thereon,
including Additional Interest, if any. Any payment pursuant to this
Section 2.4 shall be made prior to 12:00 noon, New York time, on
the date fixed for such redemption or at such other time on such
earlier date as Capital and the Issuer shall agree.
SECTION 2.5 Optional Prepayment. Upon not less than 30
nor more than 60 days' prior notice, the Issuer shall have the
right to prepay the Series C Debentures relating to the Series C
Preferred Securities (together with any accrued but unpaid
interest, including Additional Interest, if any, on the portion
being prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any time
on or after February 29, 2000; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after January 26, 1995
in United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series C
Debentures for federal income tax purposes even if the Series
C Preferred Securities are exchanged for the Series C
Debentures pursuant to a Preferred Security Exchange.
SECTION 2.6 Exchange of Series C Debentures for New
Debentures. Notwithstanding the provisions of Section 2.3, prior to
a Preferred Security Exchange, in lieu of repaying the Series C
Debentures relating to the Series C Preferred Securities when due,
the Issuer may elect to exchange such Series C Debentures for new
debentures with an equal aggregate principal amount issued under
the Indenture with terms substantially identical to the Series C
Debentures; provided that the Issuer may not so elect to exchange
any Series C Debentures, unless at the time of such exchange
Capital owns all of the Series C Debentures and, as determined in
the judgment of the Managing Members and Capital's financial
advisor (selected by the Managing Members and who shall be
unaffiliated with the Issuer and shall be among the 30 largest
investment banking firms, measured by total capital, in the United
States at the time of such exchange), (a) the Issuer is not
bankrupt, insolvent or in liquidation, (b) no Event of Default or
event that with the giving of notice or the passage of time would
constitute an Event of Default on any Securities pertaining to
Preferred Interests of any series, has occurred and is continuing,
(c) the Issuer has made timely payments on the Series C Debentures
for the immediately preceding 18 months, (d) Capital is not in
arrears on payments of distributions on the Series C Preferred
Securities, (e) there is then no present reason to believe the
Issuer will be unable to make timely payment of principal and
interest on such new debentures, (f) such new debentures are being
issued 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 debentures are being issued at a rate
sufficient to provide payments equal to or greater than the amount
of distributions required under the Series C Preferred Securities,
(h) such debentures are being issued for a term that is consistent
with market circumstances and the Issuer's financial condition, (i)
immediately prior to issuing such new debentures, the senior
unsecured long-term debt of the Issuer 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 the Issuer'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 of 1933, as amended) and any subordinated
unsecured long-term debt of the Issuer or, if there is no such debt
then outstanding, the Series C Preferred Securities, 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 Series C Preferred
Securities.
SECTION 2.7 Denomination and Interest on the Series C
Debentures. (a) The Series C Debentures shall be issuable as
Registered Securities in denominations of $25 and any multiple
thereof.
(b) The Series C Debentures shall bear interest at a rate
equal to 9.35% per annum from February 2, 1995 or from the most
recent Interest Payment Date (as defined below) to which interest
has been paid or provided for on the Series C Debentures. To the
extent allowed by law, the Issuer will also pay interest on overdue
installments of interest at such rate. The amount of interest
payable for any full monthly interest period shall be computed on
the basis of twelve 30-day months and a 360-day year and, for any
period shorter than a full monthly interest period, shall be
computed on the basis of the actual number of days elapsed in such
period. Such interest shall be payable monthly on the last day of
each calendar month (an "Interest Payment Date") commencing on
February 28, 1995 to the holder or holders of the Series C
Debenture on the relevant record date (each, a "Record Date"),
which shall be one Business Day prior to the relevant Interest
Payment Date. If Interest Payment Date 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 (and the Record Date for such Interest Payment Date shall be
one Business Day prior to the date on which payment is to be made),
in each case with the same force and effect as if made on such
date.
SECTION 2.8 Additional Interest. If at any time following
the issuance of the Series C Preferred Securities and prior to a
Preferred Security Exchange, Capital shall be required to pay, with
respect to its income derived from the interest payments on the
Series C Debentures relating to the Series C Preferred Securities,
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, the
Issuer will pay as interest such additional amounts ("Additional
Interest") as may be necessary in order that the net amounts
received and retained by Capital after the payment of such taxes,
duties, assessments or governmental charges shall result in
Capital's having such funds as it would have had in the absence of
the payment of such taxes, duties, assessments or governmental
charges.
SECTION 2.9 Extension of Interest Period. Notwithstanding
the provisions of Section 2.7 hereof, the Issuer shall have the
right at any time or times during the term of the Series C
Debentures, so long as the Issuer is not in default in the payment
of interest under any of the Securities, to extend the interest
payment period for the Series C Debentures up to 18 months;
provided that at the end of such period the Issuer shall pay all
installments of interest then accrued and unpaid (together with
interest thereon at the rate specified for the Series C Debentures
to the extent permitted by applicable law); provided further that,
during any such extended interest period, neither the Issuer nor
any majority owned subsidiary of the Issuer 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
the Issuer'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 furtherthat any such extended interest
period may only be selected with respect to the Series C Debentures
if an extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for the
Series C Debentures, the Issuer may further extend the interest
payment period for the Series C Debentures; provided that such
extended interest payment period for the Series C Debentures
together with all such further extensions thereof, may not exceed
18 months; and provided further that any such further extended
interest period may only be selected with respect to the Series C
Debentures if a further extended interest period of identical
length is simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the Issuer
has paid all accrued and unpaid interest required by the Series C
Debentures for such period, then the Issuer shall have the right to
again extend the interest payment period up to 18 months as herein
described. Prior to any Preferred Security Exchange, the Issuer
shall give Capital notice of its selection of any extended interest
payment period one Business Day prior to the earlier of (i) the
date Capital declares the related distribution, if any, to holders
of the Common Interests or (ii) the date Capital is required to
give notice of the record or payment date of such related
distribution to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Series C
Preferred Securities, but in any event not less than two Business
Days prior to such record date; the Issuer shall cause Capital to
give such notice of the Issuer's selection of any extended interest
payment period to all holders of Such Series C Preferred
Securities. After any Preferred Security Exchange, the Issuer shall
give the Holders of the Series C Debentures notice of its selection
of any extended interest payment prior to the date it is required
to give notice of the record of payment date of such interest
payment to the New York Stock Exchange or other applicable
self-regulatory organization, but in any event not less than two
Business Days prior to such Record Date.
SECTION 2.10 Set-off. Notwithstanding anything to the
contrary herein, prior to any Preferred Security Exchange the
Issuer shall have the right to set off any payment it is otherwise
required to make hereunder with and to the extent the Issuer has
theretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee.
SECTION 2.11 Certain Covenants. (a) So long as the Series
C Preferred Securities remain outstanding, neither the Issuer nor
any majority-owned subsidiary of the Issuer shall declare or pay
any dividend on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Issuer'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 the Issuer'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
Issuer is in default with respect to its payment obligations under
the Guarantee or the Expense Agreement or there shall have occurred
an Event of Default or any event that, with the giving of notice or
the lapse of time or both, would constitute an Event of Default
under the Securities.
(b) So long as the Series C Preferred Securities remain
outstanding, the Issuer shall (i) not cause or permit any Common
Interests to be transferred, (ii) maintain direct or indirect
ownership of all outstanding securities in Capital other than the
Preferred Interests of any series and any other securities
permitted to be issued by Capital that would not cause Capital to
become an "investment company" under the Investment Company Act of
1940, as amended, (iii) cause at least 21% of the total value of
Capital and at least 21% of all interests in the capital, income,
gain, loss, deduction and credit of Capital to be represented by
Common Interests, (iv) not voluntarily dissolve, windup or
liquidate Capital or either of the Managing Members, (v) cause HW
Nebraska, Inc. and CP Nebraska, Inc. to remain the Managing Members
of Capital and timely perform all of their respective duties as
Managing Members of Capital, and (vi) use reasonable efforts to
cause 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 the Issuer may permit Capital, solely for
the purpose of changing its domicile or avoiding tax consequences
adverse to the Issuer, Capital or holders of Series C Preferred
Securities, to consolidate or merge with or into a limited
liability company or a limited partnership formed under the laws of
any state of the United States of America; provided that (1) such
successor limited liability company or limited partnership (x)
expressly assumes all of the obligations of Capital under the
Series C Preferred Securities and other series of Preferred
Interests then outstanding or (y) substitutes for the Series C
Preferred Securities and any series of Preferred Interests then
outstanding other securities having substantially the same terms as
the Series C Preferred Securities and any such Preferred Interests
(the "Successor Securities") so long as the Successor Securities
rank, with respect to participation in the profits and assets of
such successor entity, at least as senior as the Series C Preferred
Securities and any such Preferred Interests rank, respectively,
with respect to participation in the profits and assets of Capital,
(2) the Issuer expressly acknowledges such successor as the holder
of all of the Series C Debentures and other series of debentures
issued under the Indenture then outstanding, (3) 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, (4) the
holders of Series C Preferred Securities and any such Preferred
Interests do not suffer any adverse tax consequences as a result of
such merger or consolidation, (5) such merger or consolidation does
not cause any Preferred Interests to be downgraded by any
"nationally recognized statistical rating organization," as that
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 (6) following such merger or consolidation, neither
the Issuer nor such successor limited liability company or limited
partnership will be an "investment company" for purposes of the
Investment Company Act of 1940, as amended.
(c) So long as the Series C Preferred Securities
remain outstanding, the Issuer shall not consolidate with or merge
into any other Person or sell its property and assets as, or
substantially as, an entirety to any Person and shall not permit
any Person to merge into or consolidate with the Issuer unless (i)
in case the Issuer shall consolidate with or merge into another
Person or sell its properties and assets as, or substantially as,
an entirety to any Person, the Person formed by such consolidation
or into which the Issuer is merged or the Person which purchases
the properties and assets of the Issuer as, or substantially, as an
entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States
of America, any State or the District of Columbia, and shall
expressly assume the Issuer's obligations under the Indenture, this
Supplemental Indenture and the Series C Debentures and (ii)
immediately after giving effect to the transaction no Event of
Default shall have occurred and be continuing.
(d) So long as the Series C Preferred Securities
remain outstanding, the provisions of Sections 2.11(b) and (c)
shall remain in full force and effect notwithstanding satisfaction
and discharge of the Indenture pursuant to Section 10.1 thereof.
SECTION 2.12 Events of Default; Remedies. Prior to any
Preferred Security Exchange, "Event of Default" means any one of
the following events:
(a) failure to pay when due any interest under any
Securities, including any Additional Interest, and such failure
shall continue for a period of 30 days (whether or not payment is
prohibited by the provisions contained in Article Thirteen of the
Indenture or otherwise); provided that a valid extension of the
interest payment period by the Issuer shall not constitute a
default in the payment of interest for this purpose;
(b) failure to pay when due any principal under any
Securities (whether or not payment is prohibited by the provisions
contained in Article Thirteen of the Indenture or otherwise);
(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 (other than a covenant or warranty in
respect of the Series C Debentures a default in the performance or
breach of which is elsewhere in this Section specifically dealt
with) or contained in the Indenture, this Supplemental Indenture or
the Series C Debentures, 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 any Holder
hereof, 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;
(d) the dissolution, or winding up or liquidation of
Capital;
(e) 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
(f) 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.
If an Event of Default shall occur and be continuing,
then Capital will have the right (i) to declare the principal of
and the interest on the Series C Debentures (including any
Additional Interest and any interest subject to an extension
election) and any other amounts payable under the Series C
Debentures to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series C Debentures to the contrary
notwithstanding and (ii) to enforce its other rights hereunder and
thereunder. Capital may not accelerate the principal amount of any
Series C Debenture unless the principal amount of all Securities is
accelerated.
If an Event of Default specified in clauses (d), (e) or
(f) above shall have occurred, the principal of and interest on the
Series C Debentures shall thereupon and concurrently become due and
payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived, anything in the
Indenture, this Supplemental Indenture or the Series C Debentures
to the contrary notwithstanding.
If an Event of Default specified in clause (a) or (b)
above shall have occurred and be continuing and Capital shall have
failed to pay any distributions on the Series C Preferred
Securities when due (other than as a result of any valid extension
of the interest payment period by the Issuer for the Series C
Debentures) or to pay any portion of the redemption price of the
Series C Preferred Securities called for redemption, then any
Holder of Series C Preferred Securities may, as set forth in the
terms of the Series C Preferred Securities, enforce directly
against the Issuer Capital's right hereunder to receive payments of
principal and interest on the Series C Debentures relating to such
Series C Preferred Interests but only in an amount sufficient to
enable Capital to pay such distributions or redemption price.
The Issuer expressly acknowledges that under the terms of
Section 3.02(f) of the Operating Agreement and Section 9 of the
Written Action, the holders of the outstanding Series C Preferred
Securities together with the holder of other Preferred Interests
shall in certain circumstances have the right to appoint a trustee,
which trustee shall be authorized to exercise Capital's creditor
rights under the Indenture, this Supplemental Indenture and the
Series C Debentures and the Issuer agrees to cooperate with such
trustee; provided that any trustee so appointed shall vacate office
immediately in accordance with Section 3.02(f) of the Operating
Agreement if all Events of Default giving rise to such right of
appointment have been cured by the Issuer.
Except as provided in this Section 2.12, Holders of
Series C Preferred Interests shall have no rights to enforce any
obligations of the Issuer under the Indenture, this Supplemental
Indenture or the Series C Debentures.
On and after a Preferred Security Exchange, the
provisions of Article Five of the Indenture, including without
limitation the definition of an "Event of Default", shall apply to
the Series C Debentures and this Section 2.12 shall be of no
further force or effect.
SECTION 2.13 Book-Entry-Only Issuance; The Depository
Trust Company. On and after a Preferred Security Exchange, the
provisions of this Section 2.13 shall apply.
(a) DTC, New York, New York, will act as securities
depository for the Series C Debentures. The Series C Debentures
will be issued as one or more global certificates only as
fully-registered securities registered in the name of Cede & Co.
(DTC's nominee). Such global certificates shall bear a legend in
the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS DEBENTURE IS IN GLOBAL FORM WITHIN THE MEANING OF
THE INDENTURE AND SUPPLEMENTAL INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF DTC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
DEBENTURES IN CERTIFICATED FORM, THIS DEBENTURE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY
A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.
or any other legend then customary for securities of a similar
nature held by DTC.
(b) Redemption notices shall be sent to Cede & Co. If
less than all of the Series C Debentures are being redeemed, such
securities shall be redeemed in accordance with DTC's then current
practice.
(c) DTC may discontinue providing its services as
securities depository with respect to the Series C Debentures by
giving reasonable notice to the Issuer as provided in the agreement
between the Issuer and DTC. Under such circumstances, if a
successor securities depository is not obtained, the Issuer at its
expense shall cause certificates for Series C Debentures to be
printed and delivered as promptly as practicable.
SECTION 2.14 Listing on the New York Stock Exchange.
Following a Preferred Security Exchange, the Issuer will use its
best efforts to have the Series C Debentures listed on the same
exchange on which the Series C Preferred Securities are listed.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall be
deemed given by a party hereto if in writing and delivered
personally or by telegram or facsimile transmission or by
registered or certified mail (return receipt requested) to the
other party at the following address for such party (or at such
other address as shall be specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The Issuer shall
have the right at all times to assign any of its rights or
obligations under the Indenture, this Supplemental Indenture and
the Series C Debentures to a direct or indirect wholly owned
subsidiary of the Issuer (other than to any Managing Member);
provided that, in the event of any such assignment, the Issuer
shall remain jointly and severally liable for all such obligations;
and provided further that in the event of an assignment prior to a
Preferred Security Exchange the Issuer shall have received an
opinion of nationally recognized tax counsel that such assignment
shall not constitute a taxable event of the holders of Series C
Preferred Securities for federal income tax purposes. Except as
otherwise provided in this Supplemental Indenture, Capital may not
assign any of its rights under the Series C Debentures without the
prior written consent of the Issuer. Subject to the foregoing, the
Indenture, this Supplemental Indenture and the Series C Debentures
shall be binding upon and inure to the benefit of the Issuer,
Capital, the Holders from time to time of the Series C Debentures
and their respective successors and assigns. Except as provided in
this Section 3.2 or elsewhere in this Supplemental Indenture, none
of the Indenture, this Supplemental Indenture nor the Series C
Debentures may be assigned by either the Issuer or Capital and any
assignment by the Issuer or Capital in contravention of this
Section 3.2 shall be null and void.
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL INDENTURE
AND THE SERIES C DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.4 Counterparts. This Supplemental Indenture may
be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and
the same instrument.
Section 3.5 Amendments. This Supplemental Indenture may
be amended as set forth in Article Eight of the Indenture.
Notwithstanding the foregoing, so long as any Series C Preferred
Securities shall remain outstanding, (i) no amendment to the
provisions of the Indenture, this Supplemental Indenture or the
Series C Debentures shall be made that adversely affects the
holders of any Series C Preferred Securities then outstanding, or
terminate the Indenture, this Supplemental Indenture or the Series
C Debentures, without in each case the prior consent of holders of
66-2/3% in stated liquidation preference of all Series C Preferred
Securities then outstanding, unless and until all Securities and
all accrued and unpaid interest thereon (including Additional
Interest, if any) shall have been paid in full and (ii) without the
prior consent of holders of 100% in stated liquidation preference
of all Series C Preferred Securities then outstanding, no amendment
shall be made to the provisions of this clause (ii) of Section 3.5
or to (a) extend the stated maturity of the principal of any
Debenture, 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 or interest thereon is payable or
impair the right to institute suit for the enforcement of any
payment on any Debenture when due or (b) reduce the aforesaid
percentage in principal amount of Debentures of any series the
consent of the holders of which is required for any such
modification. Any required consent of holders of Series C Preferred
Securities pursuant to this Section 3.5 shall be in writing or
shall be obtained at a meeting of Series C Preferred Securities
holders convened in the manner specified in 3.02(e) of the
Operating Agreement.
Section 3.6 Waivers. Capital may not waive compliance or
waive any default in compliance by the Issuer of any covenant or
other term in the Indenture, this Supplemental Indenture or the
Series C Debentures without the approval of the same percentage of
holders of Series C Preferred Securities, obtained in the same
manner, as would be required for an amendment of the Indenture,
this Supplemental Indenture or the Series C Debentures to the same
effect; provided that if no approval would be required for any such
amendment, then Capital may waive such compliance or default in any
manner that the parties shall agree.
Section 3.7 Third Party Beneficiaries. The Issuer hereby
acknowledges that the holders from time to time of the Series C
Preferred Securities shall expressly be third party beneficiaries
of this Supplemental Indenture.
Section 3.8 Amendment to Indenture. Pursuant to Section
8.1 of the Indenture, Section 8.2 of the Indenture is hereby
amended for purposes of any and all Securities, including without
limitation the Series C Debentures, issued under the Indenture by
substituting the phrase "of not less than 66-2/3%" for the phrase
"of not less than a majority" in the first clause of such Section
8.2.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the
date and year first above written.
CONAGRA, INC.
By: /s/ J.P. O'Donnell
Name: J. P. O'Donnell
Title: Vice President, Finance
and Treasurer
[SEAL]
Attest: /s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
FIRST TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ David H. Bluhm
Name: David H. Bluhm
Title: Vice President
[SEAL]
Attest: /s/ K. Barrett
Name: Kathe Barrett
Title: Assoc. Admin.
<PAGE>
Exhibit A
[Form of Face of Series C Debenture]
No.
ConAgra, Inc.
Series C Debentures due 2044
ConAgra, Inc., a Delaware corporation (the "Issuer"), for
value received, hereby promises to pay to ConAgra Capital, L.C. or
registered assigns, at the office or agency of the Issuer in The
City of New York, the principal sum of $250,000,000 Dollars on
February 29, 2044, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, at a rate
equal to 9.35% per annum accruing from February 2, 1995 or from the
most recent Interest Payment Date (as defined below) to which
interest has been paid or provided for on the Series C Debentures.
To the extent allowed by law, the Issuer will also pay interest on
overdue installments of interest at such rate. The amount of
interest payable for any full monthly interest period shall be
computed on the basis of twelve 30-day months and a 360-day year
and, for any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days elapsed
in such period. Such interest shall be payable monthly on the last
day (an "Interest Payment Date") of each calendar month, commencing
on February 28, 1995 to the holder or holders of this Debenture on
the relevant record date (each, a "Record Date"), which shall be
one Business Day prior to the relevant Interest Payment Date. If
Interest Payment Date 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 (and the Record Date
for such Interest Payment Date shall be one Business Day prior to
the date on which payment is to be made), in each case with the
same force and effect as if made on such date. If at any time
following the issuance of the Common Securities, Capital shall be
required to pay, with respect to its income derived from the
interest payments on the Series C Debentures, 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, the Issuer will pay
as interest such additional amounts ("Additional Interest") as may
be necessary in order that the net amounts received and retained by
Capital after the payment of such taxes, duties, assessments or
governmental charges shall result in Capital's having such funds as
it would have had in the absence of the payment of such taxes,
duties, assessments or governmental charges. Notwithstanding the
forgoing, the Issuer shall have the right at any time or times
during the term of the Series C Debentures, so long as the Issuer
is not in default in the payment of interest under any of the
Securities, to extend the interest payment period for the Series C
Debentures up to 18 months; provided that at the end of such period
the Issuer shall pay all installments of interest then accrued and
unpaid (together with interest thereon at the rate specified for
the Series C Debentures to the extent permitted by applicable law);
provided further that, during any such extended interest period,
neither the Issuer nor any majority owned subsidiary of the Issuer
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 the Issuer'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 the Series C
Debentures if an extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for the
Series C Debentures, the Issuer may further extend the interest
payment period for the Series C Debentures; provided that such
extended interest payment period for the Series C Debentures
together with all such further extensions thereof, may not exceed
18 months; and provided further that any such further extended
interest period may only be selected with respect to the Series C
Debentures if a further extended interest period of identical
length is simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the Issuer
has paid all accrued and unpaid interest required by the Securities
for such period, then the Issuer shall have the right to again
extend the interest payment period up to 18 months as herein
described. Prior to any Preferred Security Exchange, the Issuer
shall give Capital notice of its selection of any extended interest
payment period one Business Day prior to the earlier of (i) the
date Capital declares the related distribution, if any, to the
holders of the Series C Preferred Securities or (ii) the date
Capital is required to give notice of the record or payment date of
such related distribution, if any, to the holders of the Series C
Preferred Securities to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Series
C Preferred Securities, but in any event not less than two Business
Days prior to such Record Date; the Issuer shall cause Capital to
give such notice of the Issuer's selection of any extended interest
payment period to all holders of such Series C Preferred
Securities. After any Preferred Security Exchange, the Issuer shall
give the Holders of the Series C Debentures notice of its selection
of any extended interest payment prior to the date it is required
to give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable
self-regulatory organization, but in any event not less than two
Business Days prior to such Record Date.
Reference is made to the further provisions of this
Debenture set forth on the reverse hereof. Such further provisions
shall for all purposes have the same effect as though fully set
forth at this place.
This Debenture shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon
shall have been signed by the Trustee under the Indenture referred
to below.
This Debenture is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the
Issuer (hereinafter called the "Securities") of the series
hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of March 10, 1994 and
supplemental indentures thereto (herein collectively called the
"Indenture"), duly executed and delivered by the Issuer and First
Trust National Association, as Trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the holders of the
Securities. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase
or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Debenture is one of a series designated as
the "Series C Debentures due 2044" (the "Series C Debentures") of
the Issuer, limited in aggregate principal amount to $250,000,000.
In case an Event of Default with respect to the Series C
Debentures, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the Holders of not less than
66-2/3% in aggregate principal amount of the Securities at the time
Outstanding (as defined in the Indenture) of all series to be
affected (voting as one class), evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of each such
series; provided, however, that no such supplemental indenture
shall (i) extend the final maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of any interest thereon, or impair or
affect the rights of any Holder to institute suit for the payment
thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities,
the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each
Security affected. It is also provided in the Indenture that, with
respect to certain defaults or Events of Default regarding the
Securities of any series, prior to any declaration accelerating the
maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or,
in the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the Holders of
all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence shall
not, however, apply to a continuing default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of this
Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders
and owners of this Debenture and any Debenture which may be issued
in exchange or substitution herefor, irrespective of whether or not
any notation thereof is made upon this Debenture or such other
Debentures.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Debenture
in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Series C Debentures are issuable in registered form
without coupons in denominations of $25 and any integral multiple
of $25 at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, and in the manner and subject to
the limitations provided in the Indenture, but without the payment
of any service charge, Series C Debentures may be exchanged for a
like aggregate principal amount of Series C Debentures of other
authorized denominations.
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series C
Debentures (together with any accrued but unpaid interest,
including Additional Interest, if any, on the portion being
prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any time
on or after February 29, 2000; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after January 26, 1995
in United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series C
Debentures for federal income tax purposes, even if the Series
C Preferred Securities are exchanged for the Series C
Debentures pursuant to a Preferred Security Exchange,
all as further provided in the Indenture.
The Series C Debentures are, to the extent and in the
manner provided in the Indenture, expressly subordinate and junior
in right of payment of all Senior Indebtedness as provided in the
Indenture, and each holder of this Debenture, by his acceptance
hereof, agrees to and shall be bound by such provisions of the
Indenture and authorizes and directs the Trustee in his behalf to
take such action as appropriate to effectuate such subordination
and appoints the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as 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.
Upon due presentment for registration of transfer of this
Debenture at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, a new Debenture or Debentures of
authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to
the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent of the
Issuer or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Debenture (whether or not this
Debenture shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if
any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall
be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, 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 hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the
Indenture.
Dated: February 2, 1995
ConAgra, Inc.
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
First Trust National
Association, as Trustee
By__________________________
Authorized Signatory
<PAGE>
========================================
CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
Trustee
Sixth Supplemental Indenture
Dated as of January 26, 1995
Providing for Issuance of 9.35%
Series CC Debentures due 2044
in connection with the issuance by
ConAgra Capital, L.C. of its
Common Interests
========================================
<PAGE>
SIXTH SUPPLEMENTAL INDENTURE (the "Supplemental
Indenture"), dated as of January 26, 1995, 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, in accordance with Sections 2.1, 2.3 and 8.1 of
the Subordinated Indenture dated as of March 10, 1994, between the
Issuer and the Trustee (the "Indenture"), this Supplemental
Indenture is being entered into in order to establish the form and
terms of a series of Securities to be issued in connection with the
issuance by ConAgra Capital, L.C., an Iowa limited liability
company ("Capital"), of its Common Interests (the "Common
Interests");
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Supplemental Indenture to provide, among other
things, for the authentication, delivery and administration of such
series of Securities;
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplement to Indenture according to its terms
and the terms of the Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
such series of 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 such series of Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined in the Indenture. All
capitalized terms used herein without definition shall have the
meanings specified in the Indenture.
SECTION 1.2 Additional Terms Defined. As used in this
Supplemental Indenture, the additional terms set forth below shall
have the following meanings:
"Additional Interest" shall have the meaning set forth in
Section 2.8 hereof.
"Common Interests" shall mean Common Membership Interests
as defined in the Operating Agreement.
"Event of Default" shall (a) prior to a Preferred Security
Exchange, have the meaning set forth in Section 2.12 hereof and (b)
on and after a Preferred Security Exchange, have the meaning set
forth in Section 5.1 of the Indenture.
"Expense Agreement" means the Agreement as to Expenses
and Liabilities dated as of April 20, 1994 between the Issuer and
Capital.
"Guarantee" means the Payment and Guarantee Agreement
dated as of April 20, 1994, executed and delivered by the Issuer
for the benefit of the holders from time to time of the Common
Interests and other Preferred Interests of Capital.
"Managing Members" means HW Nebraska, Inc., a
Nebraska corporation, and CP Nebraska, Inc., a Nebraska
corporation, as managing members of Capital.
"Operating Agreement" means the Limited Liability Company
Operating Agreement dated as of March 11, 1994 by and among the
Managing Members.
"Preferred Interests" means Series Preferred Membership
Interests as defined in the Operating Agreement.
"Preferred Security Exchange" means an exchange of Series
C Debentures for Series C Preferred Securities pursuant to Section
7 of the Written Action.
"Series CC Debentures" shall mean the Series CC
Debentures as defined in the Sixth Supplemental Indenture dated
January 26, 1995.
"Series C Preferred Securities" shall mean Series C
Cumulative Preferred Securities as defined in the Written Action.
"Underwriting Agreement" means the underwriting agreement
dated as of January 26, 1995, among the Issuer, Capital and Smith
Barney Inc. as representative of the several underwriters named
therein.
"Written Action" means the Written Action of the Managing
Members Pursuant to Section 3.02 of the Operating Agreement dated
January 26, 1995, establishing the terms of the Preferred Interests
relating to the Series C Debentures.
ARTICLE TWO
ISSUANCE OF Series CC DEBENTURES
SECTION 2.1 Issuance of Series CC Debentures. There shall
be a series of Securities designated "Series CC Debentures due
2044" (the "Series CC Debentures") and such Series CC Debentures
shall have the terms set forth in this Article Two in accordance
with the provisions of the Indenture and this Supplemental
Indenture.
SECTION 2.2 Limitation on Aggregate Principal Amount. The
aggregate principal amount of the Series CC Debentures which may be
authenticated and delivered shall be limited to $66,500,000.
SECTION 2.3 Maturity of the Series CC Debentures. Subject
to the provisions of Sections 2.4 and 2.5, the entire principal
amount of the Series CC Debentures shall become due and payable,
together with any accrued and unpaid interest thereon, including
Additional Interest, if any, on the earlier of (a) February 29,
2044 (subject to the Issuer's right to exchange the Series CC
Debentures for new debentures pursuant to Section 2.6) and (b) the
date upon which Capital shall be dissolved, wound-up or liquidated;
provided that the parenthetical to clause (a) and the entirety of
clause (b) shall be inapplicable on and after the date of any
Preferred Security Exchange.
SECTION 2.4 Mandatory Prepayment of Series CC Debentures
upon redemption of Common Interests. Notwithstanding the provisions
of Section 2.3, if Capital redeems the Preferred Interests in
accordance with the terms thereof, the Series CC Debentures shall
become due and payable in a principal amount together with any and
all accrued interest thereon, including Additional Interest, if
any. Any payment pursuant to this Section 2.4 shall be made prior
to 12:00 noon, New York time, on the date fixed for such redemption
or at such other time on such earlier date as Capital and the
Issuer shall agree.
SECTION 2.5 Optional Prepayment. Upon not less than 30
nor more than 60 days' prior notice, the Issuer shall have the
right to prepay the Series CC Debentures (together with any accrued
but unpaid interest, including Additional Interest, if any, on the
portion being prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any time
on or after February 29, 2000; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after January 26, 1995
in United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series CC
Debentures for federal income tax purposes.
SECTION 2.6 Exchange of Series CC Debentures for New
Debentures. Notwithstanding the provisions of Section 2.3, prior to
a Preferred Security Exchange, in lieu of repaying the Series CC
Debentures when due, the Issuer may elect to exchange such Series
CC Debentures for new debentures with an equal aggregate principal
amount issued under the Indenture with terms substantially
identical to the Series CC Debentures; provided that the Issuer may
not so elect to exchange any Series CC Debentures, unless at the
time of such exchange Capital owns all of the Series CC Debentures
and, as determined in the judgment of the Managing Members and
Capital's financial advisor (selected by the Managing Members and
who shall be unaffiliated with the Issuer and shall be among the 30
largest investment banking firms, measured by total capital, in the
United States at the time of such exchange), (a) the Issuer is not
bankrupt, insolvent or in liquidation, (b) no Event of Default or
event that with the giving of notice or the passage of time would
constitute an Event of Default on any Securities pertaining to
Preferred Interests of any series, has occurred and is continuing,
(c) the Issuer has made timely payments on the Series CC Debentures
for the immediately preceding 18 months, (d) Capital is not in
arrears on payments of distributions on the Series C Preferred
Securities, (e) there is then no present reason to believe the
Issuer will be unable to make timely payment of principal and
interest on such new debentures, (f) such new debentures are being
issued 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 debentures are being issued at a rate
sufficient to provide payments equal to or greater than the amount
of distributions required under the Common Interests, (h) such
debentures are being issued for a term that is consistent with
market circumstances and the Issuer's financial condition, (i)
immediately prior to issuing such new debentures, the senior
unsecured long-term debt of the Issuer 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 the Issuer'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 of 1933, as amended) and any subordinated
unsecured long-term debt of the Issuer or, if there is no such debt
then outstanding, the Preferred Interests, 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 Series C Preferred
Securities.
SECTION 2.7 Denomination and Interest on the Series CC
Debentures. (a) The Series CC Debentures shall be issuable as
Registered Securities in denominations of $25 and any multiple
thereof.
(b) The Series CC Debentures shall bear interest at a
rate equal to 9.35% per annum from February 2, 1995 or from the
most recent Interest Payment Date (as defined below) to which
interest has been paid or provided for on the Series CC Debentures.
To the extent allowed by law, the Issuer will also pay interest on
overdue installments of interest at such rate. The amount of
interest payable for any full monthly interest period shall be
computed on the basis of twelve 30-day months and a 360-day year
and, for any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days elapsed
in such period. Such interest shall be payable monthly on the last
day of each calendar month (an "Interest Payment Date") commencing
on February 28, 1995 to the holder or holders of the Series CC
Debenture on the relevant record date (each, a "Record Date"),
which shall be one Business Day prior to the relevant Interest
Payment Date. If Interest Payment Date 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 (and the Record Date for such Interest Payment Date shall be
one Business Day prior to the date on which payment is to be made),
in each case with the same force and effect as if made on such
date.
SECTION 2.8 Additional Interest. If at any time following
the issuance of the Common Interests, Capital shall be required to
pay, with respect to its income derived from the interest payments
on the Series CC Debentures, 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, the Issuer will pay as interest such
additional amounts ("Additional Interest") as may be necessary in
order that the net amounts received and retained by Capital after
the payment of such taxes, duties, assessments or governmental
charges shall result in Capital's having such funds as it would
have had in the absence of the payment of such taxes, duties,
assessments or governmental charges.
SECTION 2.9 Extension of Interest Period. Notwithstanding
the provisions of Section 2.7 hereof, the Issuer shall have the
right at any time or times during the term of the Series CC
Debentures, so long as the Issuer is not in default in the payment
of interest under any of the Securities, to extend the interest
payment period for the Series CC Debentures up to 18 months;
provided that at the end of such period the Issuer shall pay all
installments of interest then accrued and unpaid (together with
interest thereon at the rate specified for the Series CC Debentures
to the extent permitted by applicable law); provided further that,
during any such extended interest period, neither the Issuer nor
any majority owned subsidiary of the Issuer 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
the Issuer'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 the Series CC
Debentures if an extended interest period of identical length is
simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for the
Series CC Debentures, the Issuer may further extend the interest
payment period for the Series CC Debentures; provided that such
extended interest payment period for the Series CC Debentures
together with all such further extensions thereof, may not exceed
18 months; and provided further that any such further extended
interest period may only be selected with respect to the Series CC
Debentures if a further extended interest period of identical
length is simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the Issuer
has paid all accrued and unpaid interest required by the Series CC
Debentures for such period, then the Issuer shall have the right to
again extend the interest payment period up to 18 months as herein
described. The Issuer shall give Capital notice of its selection of
any extended interest payment period one Business Day prior to the
earlier of (i) the date Capital declares the related distribution,
if any, to holders of the Common Interests or (ii) the date Capital
is required to give notice of the record or payment date of such
related distribution to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Common
Interests, but in any event not less than two Business Days prior
to such record date.
SECTION 2.10 Set-off. Notwithstanding anything to the
contrary herein, prior to any Preferred Security Exchange the
Issuer shall have the right to set off any payment it is otherwise
required to make hereunder with and to the extent the Issuer has
theretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee provided Issuer shall not
affect any set off with respect to the Series CC Debentures until
all payments required under the Series C Debentures have been made.
SECTION 2.11 Certain Covenants. (a) So long as the
Preferred Interests remain outstanding, neither the Issuer nor any
majority-owned subsidiary of the Issuer shall declare or pay any
dividend on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Issuer'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 the Issuer'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
Issuer is in default with respect to its payment obligations under
the Guarantee or the Expense Agreement or there shall have occurred
an Event of Default or any event that, with the giving of notice or
the lapse of time or both, would constitute an Event of Default
under the Securities.
(b) So long as the Preferred Interests remain
outstanding, the Issuer shall (i) not cause or permit any Common
Interests to be transferred, (ii) maintain direct or indirect
ownership of all outstanding securities in Capital other than the
Preferred Interests of any series and any other securities
permitted to be issued by Capital that would not cause Capital to
become an "investment company" under the Investment Company Act of
1940, as amended, (iii) cause at least 21% of the total value of
Capital and at least 21% of all interests in the capital, income,
gain, loss, deduction and credit of Capital to be represented by
Common Interests, (iv) not voluntarily dissolve, windup or
liquidate Capital or either of the Managing Members, (v) cause HW
Nebraska, Inc. and CP Nebraska, Inc. to remain the Managing Members
of Capital and timely perform all of their respective duties as
Managing Members of Capital, and (vi) use reasonable efforts to
cause 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 the Issuer may permit Capital, solely for
the purpose of changing its domicile or avoiding tax consequences
adverse to the Issuer, Capital or holders of Preferred Interests,
to consolidate or merge with or into a limited liability company or
a limited partnership formed under the laws of any state of the
United States of America; provided that (1) such successor limited
liability company or limited partnership (x) expressly assumes all
of the obligations of Capital under the Common Interests and other
series of Preferred Interests then outstanding or (y) substitutes
for the Common Interests and any series of Preferred Interests then
outstanding other securities having substantially the same terms as
the Common Interests and any such Preferred Interests (the
"Successor Securities") so long as the Successor Securities rank,
with respect to participation in the profits and assets of such
successor entity, at least as senior as the Common Interests and
any such Preferred Interests rank, respectively, with respect to
participation in the profits and assets of Capital, (2) the Issuer
expressly acknowledges such successor as the holder of all of the
Series CC Debentures and other series of debentures issued under
the Indenture then outstanding, (3) 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, (4) the holders
of Common Interests and any such Preferred Interests do not suffer
any adverse tax consequences as a result of such merger or
consolidation, (5) such merger or consolidation does not cause any
Preferred Interests to be downgraded by any "nationally recognized
statistical rating organization," as that 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 (6) following
such merger or consolidation, neither the Issuer nor such successor
limited liability company or limited partnership will be an
"investment company" for purposes of the Investment Company Act of
1940, as amended.
(c) So long as the Common Interests remain
outstanding, the Issuer shall not consolidate with or merge into
any other Person or sell its property and assets as, or
substantially as, an entirety to any Person and shall not permit
any Person to merge into or consolidate with the Issuer unless (i)
in case the Issuer shall consolidate with or merge into another
Person or sell its properties and assets as, or substantially as,
an entirety to any Person, the Person formed by such consolidation
or into which the Issuer is merged or the Person which purchases
the properties and assets of the Issuer as, or substantially, as an
entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States
of America, any State or the District of Columbia, and shall
expressly assume the Issuer's obligations under the Indenture, this
Supplemental Indenture and the Series CC Debentures and (ii)
immediately after giving effect to the transaction no Event of
Default shall have occurred and be continuing.
(d) So long as the Series C Preferred Securities
remain outstanding, the provisions of Sections 2.11(b) and (c)
shall remain in full force and effect notwithstanding satisfaction
and discharge of the Indenture pursuant to Section 10.1 thereof.
SECTION 2.12 Events of Default; Remedies. Prior to any
Preferred Security Exchange, "Event of Default" means any one of
the following events:
(a) failure to pay when due any interest under any
Securities, including any Additional Interest, and such failure
shall continue for a period of 30 days (whether or not payment is
prohibited by the provisions contained in Article Thirteen of the
Indenture or otherwise); provided that a valid extension of the
interest payment period by the Issuer shall not constitute a
default in the payment of interest for this purpose;
(b) failure to pay when due any principal under any
Securities (whether or not payment is prohibited by the provisions
contained in Article Thirteen of the Indenture or otherwise);
(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 (other than a covenant or warranty in
respect of the Series CC Debentures a default in the performance or
breach of which is elsewhere in this Section specifically dealt
with) or contained in the Indenture, this Supplemental Indenture or
the Series CC Debentures, 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 any Holder
hereof, 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;
(d) the dissolution, or winding up or liquidation
of Capital;
(e) 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
(f) 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.
If an Event of Default shall occur and be continuing,
then Capital will have the right (i) to declare the principal of
and the interest on the Series CC Debentures (including any
Additional Interest and any interest subject to an extension
election) and any other amounts payable under the Series CC
Debentures to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby expressly waived, anything in the Indenture, this
Supplemental Indenture or the Series CC Debentures to the contrary
notwithstanding and (ii) to enforce its other rights hereunder and
thereunder. Capital may not accelerate the principal amount of any
Series CC Debenture unless the principal amount of all Securities
is accelerated.
If an Event of Default specified in clauses (d), (e) or
(f) above shall have occurred, the principal of and interest on the
Series CC Debentures shall thereupon and concurrently become due
and payable without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived, anything in the
Indenture, this Supplemental Indenture or the Series CC Debentures
to the contrary notwithstanding.
If an Event of Default specified in clause (a) or (b)
above shall have occurred and be continuing and Capital shall have
failed to pay any distributions on the Common Interests when due
(other than as a result of any valid extension of the interest
payment period by the Issuer for the Series CC Debentures) or to
pay any portion of the redemption price of the Common Interests
called for redemption, then any Holder of Common Interests may, as
set forth in the terms of the Common Interests, enforce directly
against the Issuer Capital's right hereunder to receive payments of
principal and interest on the Series CC Debentures relating to such
Common Interests but only in an amount sufficient to enable Capital
to pay such distributions or redemption price.
Except as provided in this Section 2.12, Holders of
Common Interests shall have no rights to enforce any obligations of
the Issuer under the Indenture, this Supplemental Indenture or the
Series CC Debentures.
On and after a Preferred Security Exchange, the
provisions of Article Five of the Indenture, including without
limitation the definition of an "Event of Default", shall apply to
the Series CC Debentures and this Section 2.12 shall be of no
further force or effect.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1 Notices. All notices hereunder shall be
deemed given by a party hereto if in writing and delivered
personally or by telegram or facsimile transmission or by
registered or certified mail (return receipt requested) to the
other party at the following address for such party (or at such
other address as shall be specified by like notice):
If to Capital, to:
ConAgra Capital, L.C.
c/o ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
If to the Issuer, to:
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Vice President-Finance
Any notice given by mail or telegram or facsimile
transmission shall be effective when received.
SECTION 3.2 Assignment; Binding Effect. The Issuer shall
have the right at all times to assign any of its rights or
obligations under the Indenture, this Supplemental Indenture and
the Series CC Debentures to a direct or indirect wholly owned
subsidiary of the Issuer (other than to any Managing Member);
provided that, in the event of any such assignment, the Issuer
shall remain jointly and severally liable for all such obligations;
and provided further that in the event of an assignment prior to a
Preferred Security Exchange the Issuer shall have received an
opinion of nationally recognized tax counsel that such assignment
shall not constitute a taxable event of the holders of Common
Interests for federal income tax purposes. Except as otherwise
provided in this Supplemental Indenture, Capital may not assign any
of its rights under the Series CC Debentures without the prior
written consent of the Issuer. Subject to the foregoing, the
Indenture, this Supplemental Indenture and the Series CC Debentures
shall be binding upon and inure to the benefit of the Issuer,
Capital, the Holders from time to time of the Series CC Debentures
and their respective successors and assigns. Except as provided in
this Section 3.2 or elsewhere in this Supplemental Indenture, none
of the Indenture, this Supplemental Indenture nor the Series CC
Debentures may be assigned by either the Issuer or Capital and any
assignment by the Issuer or Capital in contravention of this
Section 3.2 shall be null and void.
SECTION 3.3 Governing Law. THIS SUPPLEMENTAL INDENTURE
AND THE SERIES CC DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.4 Counterparts. This Supplemental Indenture may
be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and
the same instrument.
Section 3.5 Amendments. This Supplemental Indenture may
be amended as set forth in Article Eight of the Indenture.
Notwithstanding the foregoing, so long as any Common Interests
shall remain outstanding, (i) no amendment to the provisions of the
Indenture, this Supplemental Indenture or the Series CC Debentures
shall be made that adversely affects the holders of any Common
Interest then outstanding, or terminate the Indenture, this
Supplemental Indenture or the Series CC Debentures, without in each
case the prior consent of holders of 66-2/3% of all Common
Interests then outstanding, unless and until all Securities and all
accrued and unpaid interest thereon (including Additional Interest,
if any) shall have been paid in full and (ii) without the prior
consent of holders of 100% of all Common Interests then
outstanding, no amendment shall be made to the provisions of this
clause (ii) of Section 3.5 or to (a) extend the stated maturity of
the principal of any Debenture, 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 or
interest thereon is payable or impair the right to institute suit
for the enforcement of any payment on any Debenture when due or (b)
reduce the aforesaid percentage in principal amount of Debentures
of any series the consent of the holders of which is required for
any such modification. Any required consent of holders of Common
Interest pursuant to this Section 3.5 shall be in writing or shall
be obtained at a meeting of Common Interest holders.
Section 3.6 Waivers. Capital may not waive compliance or
waive any default in compliance by the Issuer of any covenant or
other term in the Indenture, this Supplemental Indenture or the
Series CC Debentures without the approval of the same percentage of
holders of Common Interests, obtained in the same manner, as would
be required for an amendment of the Indenture, this Supplemental
Indenture or the Series CC Debentures to the same effect; provided
that if no approval would be required for any such amendment, then
Capital may waive such compliance or default in any manner that the
parties shall agree.
Section 3.7 Third Party Beneficiaries. The Issuer hereby
acknowledges that the holders from time to time of the Common
Interests shall expressly be third party beneficiaries of this
Supplemental Indenture.
Section 3.8 Amendment to Indenture. Pursuant to Section
8.1 of the Indenture, Section 8.2 of the Indenture is hereby
amended for purposes of any and all Securities, including without
limitation the Series CC Debentures, issued under the Indenture by
substituting the phrase "of not less than 66-2/3%" for the phrase
"of not less than a majority" in the first clause of such Section
8.2.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the
date and year first above written.
CONAGRA, INC.
By: /s/ J.P. O'Donnell
Name: J. P. O'Donnell
Title: Vice President, Finance
[SEAL] and Treasurer
Attest: /s/ Sue E. Badberg
Name: Sue E. Badberg
Title: Assistant Secretary
FIRST TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ David H. Bluhm
Name: David H. Bluhm
Title: Vice President
[SEAL]
Attest: /s/ K. Barrett
Name: Kathe Barrett
Title: Assoc. Admin.
<PAGE>
Exhibit A
[Form of Face of Series CC Debenture]
No.
ConAgra, Inc.
Series CC Debentures due 2044
ConAgra, Inc., a Delaware corporation (the "Issuer"), for
value received, hereby promises to pay to ConAgra Capital, L.C. or
registered assigns, at the office or agency of the Issuer in The
City of New York, the principal sum of $66,500,000 Dollars on
February 29, 2044, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, at a rate
equal to 9.35% per annum accruing from February 2, 1995 or from the
most recent Interest Payment Date (as defined below) to which
interest has been paid or provided for on the Series CC Debentures.
To the extent allowed by law, the Issuer will also pay interest on
overdue installments of interest at such rate. The amount of
interest payable for any full monthly interest period shall be
computed on the basis of twelve 30-day months and a 360-day year
and, for any period shorter than a full monthly interest period,
shall be computed on the basis of the actual number of days elapsed
in such period. Such interest shall be payable monthly on the last
day (an "Interest Payment Date") of each calendar month, commencing
on February 28, 1995 to the holder or holders of this Debenture on
the relevant record date (each, a "Record Date"), which shall be
one Business Day prior to the relevant Interest Payment Date. If
Interest Payment Date 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 (and the Record Date
for such Interest Payment Date shall be one Business Day prior to
the date on which payment is to be made), in each case with the
same force and effect as if made on such date. If at any time
following the issuance of the Common Securities, Capital shall be
required to pay, with respect to its income derived from the
interest payments on the Series CC Debentures, 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, the Issuer will pay
as interest such additional amounts ("Additional Interest") as may
be necessary in order that the net amounts received and retained by
Capital after the payment of such taxes, duties, assessments or
governmental charges shall result in Capital's having such funds as
it would have had in the absence of the payment of such taxes,
duties, assessments or governmental charges. Notwithstanding the
forgoing, the Issuer shall have the right at any time or times
during the term of the Series CC Debentures, so long as the Issuer
is not in default in the payment of interest under any of the
Securities, to extend the interest payment period for the Series CC
Debentures up to 18 months; provided that at the end of such period
the Issuer shall pay all installments of interest then accrued and
unpaid (together with interest thereon at the rate specified for
the Series CC Debentures to the extent permitted by applicable
law); provided further that, during any such extended interest
period, neither the Issuer nor any majority owned subsidiary of the
Issuer 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 the Issuer'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 the
Series CC Debentures if an extended interest period of identical
length is simultaneously selected for all Securities. Prior to the
termination of any such extended interest payment period for the
Series CC Debentures, the Issuer may further extend the interest
payment period for the Series CC Debentures; provided that such
extended interest payment period for the Series CC Debentures
together with all such further extensions thereof, may not exceed
18 months; and provided further that any such further extended
interest period may only be selected with respect to the Series CC
Debentures if a further extended interest period of identical
length is simultaneously selected for all Securities. Following the
termination of any extended interest payment period, if the Issuer
has paid all accrued and unpaid interest required by the Securities
for such period, then the Issuer shall have the right to again
extend the interest payment period up to 18 months as herein
described. The Issuer shall give Capital notice of its selection of
any extended interest payment period one Business Day prior to the
earlier of (i) the date Capital declares the related distribution,
if any, to the holders of the Common Interests or (ii) the date
Capital is required to give notice of the record or payment date of
such related distribution, if any, to the holders of the Common
Interests to the New York Stock Exchange or other applicable self-
regulatory organization or to holders of the Common Interests, but
in any event not less than two Business Days prior to such Record
Date.
Reference is made to the further provisions of this
Debenture set forth on the reverse hereof. Such further provisions
shall for all purposes have the same effect as though fully set
forth at this place.
This Debenture shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon
shall have been signed by the Trustee under the Indenture referred
to below.
This Debenture is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the
Issuer (hereinafter called the "Securities") of the series
hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of March 10, 1994 and
supplemental indentures thereto (herein collectively called the
"Indenture"), duly executed and delivered by the Issuer and First
Trust National Association, as Trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the holders of the
Securities. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase
or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Debenture is one of a series designated as
the "Series CC Debentures due 2044" (the "Series CC Debentures") of
the Issuer, limited in aggregate principal amount to $66,500,000.
In case an Event of Default with respect to the Series CC
Debentures, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the Holders of not less than
66-2/3% in aggregate principal amount of the Securities at the time
Outstanding (as defined in the Indenture) of all series to be
affected (voting as one class), evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of each such
series; provided, however, that no such supplemental indenture
shall (i) extend the final maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of any interest thereon, or impair or
affect the rights of any Holder to institute suit for the payment
thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities,
the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each
Security affected. It is also provided in the Indenture that, with
respect to certain defaults or Events of Default regarding the
Securities of any series, prior to any declaration accelerating the
maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or,
in the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the Holders of
all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence shall
not, however, apply to a continuing default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of this
Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders
and owners of this Debenture and any Debenture which may be issued
in exchange or substitution herefor, irrespective of whether or not
any notation thereof is made upon this Debenture or such other
Debentures.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Debenture
in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Series CC Debentures are issuable in registered form
without coupons in denominations of $25 and any integral multiple
of $25 at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, and in the manner and subject to
the limitations provided in the Indenture, but without the payment
of any service charge, Series CC Debentures may be exchanged for a
like aggregate principal amount of Series CC Debentures of other
authorized denominations.
Upon not less than 30 nor more than 60 days' prior
notice, the Issuer shall have the right to prepay the Series CC
Debentures (together with any accrued but unpaid interest,
including Additional Interest, if any, on the portion being
prepaid), without premium or penalty,
(i) in whole or in part, as the case may be, at any time
on or after February 29, 2000; and
(ii) in whole at any time if the Issuer and Capital have
been advised by independent nationally recognized legal
counsel that, as a result of any change after January 26, 1995
in United States law (including the enactment or imminent
enactment of any legislation, the publication of any judicial
decisions or regulatory rulings or a change in the official
position or in the interpretation of law or regulations),
there exists more than an insubstantial risk that the Issuer
will be precluded from deducting the interest on the Series CC
Debentures for federal income tax purposes,
all as further provided in the Indenture.
The Series CC Debentures are, to the extent and in the
manner provided in the Indenture, expressly subordinate and junior
in right of payment of all Senior Indebtedness as provided in the
Indenture, and each holder of this Debenture, by his acceptance
hereof, agrees to and shall be bound by such provisions of the
Indenture and authorizes and directs the Trustee in his behalf to
take such action as appropriate to effectuate such subordination
and appoints the Trustee his attorney-in-fact for any and all such
purposes. The Indenture defines Senior Indebtedness as 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.
Upon due presentment for registration of transfer of this
Debenture at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, a new Debenture or Debentures of
authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to
the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent of the
Issuer or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Debenture (whether or not this
Debenture shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if
any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall
be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, 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 hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the
Indenture.
Dated: February 2, 1995
ConAgra, Inc.
By
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
First Trust National
Association, as Trustee
By:
Authorized Signatory
