<PAGE> 1
As filed with the Securities and Exchange Commission on January 19, 1995.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
DEAN FOODS COMPANY
(Exact name of registrant as specified in its charter)
Delaware 36-0984820
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
---------------
3600 North River Road
Franklin Park, IL 60131
(708) 678-1680
(Address, including zip code, and
telephone number, including area
code, of registrant's principal
executive offices)
Eric A. Blanchard
3600 N. River Road
Franklin Park, IL 60131
(708) 678-1680
(Name, address, including
zip code, and telephone
number, including area
code, of agent for service)
Copies to:
H. Kurt von Moltke Kevin F. Blatchford
Kirkland & Ellis Sidley & Austin
200 East Randolph Drive One First National Plaza
Chicago, IL 60601 Chicago, IL 60603
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
-------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class Amount Proposed Proposed
of securities to to be maximum maximum aggregate Amount of
be registered registered offering offering price(1) registration
price per fee
unit(1)
- ----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $300,000,000(2) 100% $300,000,000 $103,448
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) In the case of debt securities issued at an original issue discount, such
greater principal amount as shall result in an aggregate offering price of the
amount set forth above or, in the case of debt securities denominated in a
currency other than U.S. dollars or in a composite currency, such U.S. dollar
amount as shall result from converting the aggregate public offering price of
such debt securities into U.S. dollars at the spot exchange rate in effect on
the date such debt securities are initially offered to the public.
------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE> 2
SUBJECT TO COMPLETION DATED JANUARY 19, 1995
PROSPECTUS
$300,000,000
DEAN FOODS COMPANY
DEBT SECURITIES
Dean Foods Company (the "Company") intends to issue from time to time
senior debt securities (the "Senior Securities") and/or subordinated debt
securities (the "Subordinated Securities") each of which will be a direct,
unsecured obligation of the Company for aggregate proceeds not to exceed the
equivalent of $300,000,000 and offered to the public on terms determined by
market conditions at the time of sale (the Senior Securities and the
Subordinated Securities being herein referred to collectively as the "Debt
Securities"). The Debt Securities may be denominated in U.S. dollars or in any
other currency, including composite currencies such as the European Currency
Unit, as may be designated by the Company (the "Specified Currency"). Debt
Securities may be sold for U.S. dollars or any other currency, including
composite currencies and the principal of and any interest on Debt Securities
may be payable in U.S. dollars, or in any other currency, including composite
currencies, in each case, as the Company specifically designates.
The Debt Securities may be issued in one or more series with the same or
various maturities at or above par or with an original issue discount. The
specific designation, aggregate principal amount, authorized denominations,
purchase price, maturity, interest rate (or method of calculation) and time of
payment of any interest, any terms for redemption or repurchase, any listing on
a securities exchange or other specific terms of the Debt Securities in respect
of which this Prospectus is being delivered (the "Offered Securities") are set
forth in the accompanying supplement to the Prospectus (the "Prospectus
Supplement"), together with the terms of offering of the Offered Securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Debt Securities may be offered directly, through agents designated
from time to time, through dealers or through underwriters. Such agents or
underwriters may act alone or with other agents or underwriters. See "Plan of
Distribution." Any such agents, dealers or underwriters are set forth in the
Prospectus Supplement. If an agent of the Company or a dealer or underwriter
is involved in the offering of the Offered Securities, the agent's commission,
dealer's purchase price, underwriter's discount and net proceeds to the Company
will be set forth in, or may be calculated from, the Prospectus Supplement.
Any
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underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is January , 1995.
* SUBJECT TO COMPLETION *
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OR AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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IN CONNECTION WITH AN OFFERING, THE UNDERWRITERS FOR SUCH OFFERING MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE DEBT SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained or incorporated by
reference in this Prospectus or any Prospectus Supplement, and, if given or
made, such information or representation must not be relied upon as having been
authorized by the Company or by any underwriter, agent or dealer. This
Prospectus and any Prospectus Supplement shall not constitute an offer to sell
or a solicitation of an offer to buy any of the securities offered hereby in
any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. Neither the delivery of this Prospectus and
any Prospectus Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that the information therein is correct
as of any time subsequent to the date thereof.
_________________________
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy material and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy material
and other information concerning the Company can be inspected and copied at the
public reference facilities maintained by the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, or at its regional offices, at
500 West Madison, 14th Floor, Chicago, Illinois 60661, and Seven World Trade
Center, New York, New York 10048. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such reports, proxy material and
other information concerning the Company also may be inspected at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York
10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Debt Securities. This Prospectus
does not contain all of the information set forth in the Registration Statement
and the exhibits thereto as permitted by the rules and regulations of the
Commission. For information with respect to the Company and the Debt
Securities, reference is hereby made to the Registration Statement and the
exhibits thereto. The Registration Statement may be inspected without charge
by anyone at the office of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and copies of all or any part thereof may be obtained
from the Commission upon payment of the prescribed fees. Statements contained
in this Prospectus as to the contents of any contract or other document are not
necessarily complete, and reference
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<PAGE> 5
is made to the copy of such contract or other document filed as an exhibit to
the Registration Statement of which this Prospectus forms a part, each such
statement being qualified in all respects by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents heretofore filed by the Company under the Exchange
Act with the Commission are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
May 29, 1994.
(2) The Company's Report on Form 8-K dated June 20, 1994.
(3) The Company's Quarterly Reports on Form 10-Q for the thirteen
week period ended August 28, 1994 and the twenty-six week
period ended November 27, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of Debt Securities contemplated hereby shall be
deemed to be incorporated in this Prospectus by reference and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, upon the written or oral request of such
person, a copy of any or all of the documents referred to above which have been
or may be incorporated in this Prospectus by reference other than exhibits to
such documents. Requests for such copies should be directed to the Corporate
Secretary, Dean Foods Company, 3600 North River Road, Franklin Park, Illinois
60131, telephone number (708) 678-1680.
Unless the context indicates otherwise, as used in this Prospectus the
term "Company" refers to Dean Foods Company and its consolidated subsidiaries.
The Company's fiscal year ends on the last Sunday in May. Unless the context
indicates otherwise, references herein to years are for years ending on that
date.
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<PAGE> 6
THE COMPANY
Dean Foods Company and its subsidiaries are engaged in the processing,
purchasing and distribution of dairy and specialty food products. The
Company's principal products are Dairy Products (fluid milk, specialty dairy
products and ice cream) and Specialty Food Products (canned and frozen
vegetables; pickles, relishes and specialty items; powdered products; and
sauces, puddings and dips). A significant portion of the Company's products
are sold under private labels. The Company also operates a trucking business
hauling less-than-truckload freight, concentrating primarily on refrigerated
and frozen cartage.
Acquisitions have been an important factor in the Company's strategy.
The Company generally focuses on food companies having a well-established
reputation for quality products and service.
The predecessor to the Company was incorporated in Illinois in 1925. The
principal office of the Company is located at 3600 North River Road, Franklin
Park, Illinois 60131, and its telephone number is (708) 678-1680.
USE OF PROCEEDS
The Company intends to use the net proceeds of the offering of the Debt
Securities for general corporate purposes, which may include repaying existing
indebtedness or financing acquisitions. Further details relating to the use of
the net proceeds will be set forth in the applicable Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated.
<TABLE>
<CAPTION>
Twenty-Six Weeks Fiscal Years
Ended ------------------------------------
November 27, 1994 1994 1993 1992 1991 1990
----------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
5.5 6.2 6.1 5.3 5.9 5.8
</TABLE>
For the purpose of computing the above ratio of earnings to fixed charges,
earnings consist of income before taxes, plus fixed charges. Fixed charges
consist of interest expense, net, including amortization of discount and
financing costs and one-third of the operating rental expenses which management
believes is representative of the interest component of rent expense.
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<PAGE> 7
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Securities") and the extent,
if any, to which such general provisions may not apply thereto will be
described in the Prospectus Supplement relating to such Offered Securities.
The Senior Securities are to be issued in one or more series (each such
series a "Series") under an Indenture dated as of January 15, 1995, (the
"Senior Indenture") between the Company and Bank of America Illinois, as
Trustee (the "Senior Trustee"), and the Subordinated Securities are to be
issued in one or more Series under an Indenture dated as of January 15, 1995
(the "Subordinated Indenture") between the Company and a trustee to be named
prior to an offering of Subordinated Securities, as Trustee (the "Subordinated
Trustee"). The forms of the Senior Indenture and the Subordinated
Indenture (being sometimes referred to herein collectively as the "Indentures"
and individually as an "Indenture") are filed as exhibits to the Registration
Statement. The following summaries of certain provisions of the Debt
Securities and the Indentures do not purport to be complete and are subject to,
and are qualified in their entireties by reference to, all of the provisions of
the Indentures, including the definitions therein of certain terms. Whenever
particular provisions or defined terms in the Indentures are referred to
herein, such provisions or defined terms are incorporated by reference herein.
Section references used herein are references to sections in both Indentures
unless otherwise indicated. The Indentures are substantially identical, except
for certain covenants of the Company and provisions relating to subordination.
The Debt Securities will be obligations of the Company exclusively.
Because the Company conducts substantially all of its business through its
subsidiaries, the ability of the Company to meet its obligations under the Debt
Securities and its other indebtedness will be dependent on the earnings and
cash flow of its subsidiaries and the ability of its subsidiaries to pay
dividends and to advance funds to the Company. In addition, the Company's
rights and the rights of its creditors and securities holders, including the
holders of the Debt Securities, to participate in the assets of any subsidiary
upon such subsidiary's liquidation or recapitalization will be subject to prior
claims of such subsidiary's creditors, except to the extent that the Company
may itself be a creditor with recognized claims against any such subsidiary.
Except with respect to the covenants "Limitations on Liens" and "Limitations on
Sale and Lease-Back Transactions" contained in the Senior Indenture described
below, neither the Senior Indenture nor the Subordinated Indenture restricts or
limits the ability of any subsidiary of the Company to incur, create, assume or
guarantee indebtedness. At November 27, 1994, the Company's subsidiaries had
approximately $25 million of outstanding indebtedness, approximately
$19 million of which was guaranteed by the Company and would have constituted
Senior Indebtedness.
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<PAGE> 8
As of November 27, 1994, the Company had approximately $142 million
aggregate principal amount of Senior Indebtedness outstanding and no
subordinated indebtedness outstanding.
The Prospectus Supplement will contain any additional or revised
information with respect to the senior and subordinated debt outstanding as of
the date of the Prospectus Supplement.
GENERAL
The Indentures do not limit the amount of Debt Securities which can be
issued thereunder and provide that debt securities of any Series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. Debt Securities may be denominated and payable in
foreign currencies or units based on or relating to foreign currencies,
including European Currency Units ("ECUs"). Special United States federal
income tax considerations applicable to any Debt Securities so denominated will
be described in the relevant Prospectus Supplement. The Indentures do not
limit the amount of other indebtedness or securities, other than in the case of
the Senior Indenture certain secured indebtedness as described below, which may
be issued by the Company. All Senior Securities will be unsecured and will
rank pari passu with all other unsecured and unsubordinated indebtedness of the
Company. All Subordinated Securities will be unsecured and will be
subordinated in right of payment to the prior payment in full of Senior
Indebtedness (which term includes the Senior Securities) of the Company
described below under "Subordination." The Trustee will authenticate and
deliver Debt Securities executed and delivered to it by the Company as set
forth in the applicable Indenture.
Reference is made to the Prospectus Supplement for the following and other
possible terms of each Series of the Offered Securities in respect of which
this Prospectus is being delivered: (i) the title of the Offered Securities
and classification as Senior Securities or Subordinated Securities; (ii) any
limit upon the aggregate principal amount of the Offered Securities; (iii) the
currency or currency units based on or relating to currencies in which such
Offered Securities are denominated and/or in which principal (and premium, if
any) and/or any interest will or may be payable; (iv) if other than 100% of the
principal amount, the percentage of their principal amount at which the Offered
Securities will be offered; (v) the date or dates on which the principal of the
Offered Securities will be payable (or method of determination thereof); (vi)
the rate or rates (or method of determination thereof) at which the Offered
Securities will bear interest, if any, the date or dates from which any such
interest will accrue and on which such interest will be payable, and the record
dates for the determination of the holders to whom interest is payable; (vii)
if other than as set forth herein, the place or places where the principal of
and interest, if any, on the Offered Securities will be payable; (viii) the
price or prices at which, the period or periods within which and the terms and
conditions upon which Offered Securities may be redeemed, in whole or in part,
at the option of the Company; (ix)
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the obligation, if any, of the Company to redeem, repurchase or repay Offered
Securities, whether pursuant to any sinking fund or analogous provisions or
pursuant to other provisions set forth therein or at the option of a Holder
thereof; (x) whether the Offered Securities will be represented in whole or in
part by one or more global notes registered in the name of a depository or its
nominee; (xi) whether the Offered Securities will be issuable in registered
form or bearer form and, if Offered Securities in bearer form are issuable,
restrictions applicable to the exchange of one form for another and to the
offer, sale and delivery of Offered Securities in bearer form; (xii) whether
and under what circumstances the Company will pay additional amounts on Offered
Securities held by a person which is not a U.S. person (as defined in the
Prospectus Supplement) in respect of any tax, assessment or governmental charge
withheld or deducted, and if so, whether the Company will have the option to
redeem such Debt Securities rather than pay such additional amounts; and (xiii)
any other terms or conditions not inconsistent with the provisions of the
Indenture upon which the Offered Securities will be offered. (Section 2.3)
"Principal" when used herein includes, when appropriate, the premium, if any,
on the Debt Securities.
Unless otherwise provided in the Prospectus Supplement relating to any
Offered Securities, principal and interest, if any, will be payable, and the
Debt Securities will be transferable and exchangeable, at the office or offices
or agency maintained by the Company for such purposes, provided that payment of
interest on the Debt Securities will be paid at such place of payment by check
mailed to the persons entitled thereto at the addresses of such persons
appearing on the Security Register. Interest on the Debt Securities will be
payable on any interest payment date to the persons in whose name the Debt
Securities are registered at the close of business on the record date with
respect to such interest payment date. (Section 2.7)
Debt Securities may be issued in fully registered form in minimum
denominations of $1,000 and any integral multiple thereof. (Section 2.7) Debt
Securities may be exchanged for an equal aggregate principal amount of Debt
Securities of the same Series and date of maturity in such authorized
denominations as may be requested upon surrender of the Debt Securities at an
agency of the Company maintained for such purpose and upon fulfillment of all
other requirements of such agent. (Section 2.8) No service charge will be
made for any transfer or exchange of the Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Section 2.8) Debt Securities in
bearer form and the coupons, if any, appertaining thereto will be transferable
by delivery. (Section 2.8)
Debt Securities will bear interest at a fixed rate (a "Fixed Rate
Security") or a floating rate (a "Floating Rate Security"). Debt Securities
bearing no interest or interest at a rate which, at the time of issuance, is
below the prevailing market rate, will be sold at a discount below their stated
principal amount. Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain Debt Securities
issued at par which are treated
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<PAGE> 10
as having been issued at a discount for United States federal income tax
purposes will be described in the applicable Prospectus Supplement.
Debt Securities may be issued, from time to time, with the principal
amount payable on any principal payment date, or the amount of interest payable
on any interest payment date, to be determined by reference to one or more
currency exchange rates, commodity prices, equity indices or other factors.
Holders of such Debt Securities may receive a principal amount on any principal
payment date, or a payment of interest on any interest payment date, that is
greater than or less than the amount of principal or interest otherwise payable
on such dates, depending upon the value on such dates of the applicable
currency, commodity, equity index or other factor. Information as to the
methods for determining the amount of principal or interest payable on any
date, the currencies, commodities, equity indices or other factors to which the
amount payable on such date is linked and certain additional tax considerations
will be set forth in the applicable Prospectus Supplement.
The Indenture requires the annual filing by the Company with the Trustee
of a certificate as to compliance with all conditions and covenants contained
in the Indenture. (Section 3.4)
The Company will comply with Section 14(e) under the Exchange Act, and any
other tender offer rules under the Exchange Act which may then be applicable,
in connection with any obligation of the Company to purchase Offered Securities
at the option of the holders thereof. Any such obligation applicable to a
Series of Debt Securities will be described in the Prospectus Supplement
relating thereto.
Unless otherwise described in a Prospectus Supplement relating to any
Offered Securities, there are no covenants or provisions contained in either
Indenture which may afford the holders of Offered Securities protection in the
event of a highly leveraged transaction involving the Company, except to the
limited extent described under "Limitations on Liens" and "Limitation on Sale
and Lease-Back Transactions" in the Senior Indenture and "Consolidation,
Merger, Sale or Conveyance" in the Indentures as described below. Such
covenants or provisions are not subject to waiver by the Company's Board of
Directors without the consent of the holders of not less than a majority in
principal amount of Senior Securities of each Series or Subordinated Securities
of each Series, as applicable, as described under "Modification of Indenture"
below.
REGISTERED GLOBAL SECURITIES
The registered Debt Securities of a Series may be issued in the form of
one or more fully registered global Debt Securities (a "Registered Global
Security") that will be deposited with a depositary (the "Depositary"), or with
a nominee for a Depositary identified in the Prospectus Supplement relating to
such Series. In such cases, one or more Registered Global Securities will be
issued in a denomination or
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<PAGE> 11
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding registered Debt Securities of the Series to be represented by
such Registered Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive registered
form, a Registered Global Security may not be transferred except as a whole by
the Depositary for such Registered Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a Series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such
Series. The Company anticipates that the following provisions will apply to
all depositary arrangements.
Upon the issuance of a Registered Global Security, the Depositary for such
Registered Global Security will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Debt Securities
represented by such Registered Global Security to the accounts of persons that
have accounts with such Depositary ("participants"). The accounts to be
credited shall be designated by any underwriters or agents participating in the
distribution of such Debt Securities or by the Company if such Debt Securities
are offered and sold directly by the Company. Ownership of beneficial
interests in a Registered Global Security will be limited to participants or
persons that may hold interests through participants. Ownership of beneficial
interests in such Registered Global Security will be shown on, and the transfer
of that ownership will be effected only through, records maintained by the
Depositary for such Registered Global Security (with respect to interests of
participants) or by participants or persons that hold through participants
(with respect to interests of persons other than participants). The laws of
some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Registered Global
Security.
So long as the Depositary for a Registered Global Security, or its
nominee, is the registered owner of such Registered Global Security, such
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Registered Global
Security for all purposes under the Indenture. Except as set forth below,
owners of beneficial interests in a Registered Global Security will not be
entitled to have the Debt Securities represented by such Registered Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Principal and interest payments on Debt Securities represented by a
Registered Global Security registered in the name of a Depositary or its
nominee will be made to such Depositary or its nominee, as the case may be, as
the registered owner of such Registered Global Security. None of
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<PAGE> 12
the Company, the Trustee or any paying agent for such Debt Securities will have
any responsibility or liability for any aspect of the records to or payments
made on account of beneficial ownership interests in such Registered Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal or interest, will immediately credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Registered Global Security as shown on the records
of such Depositary. The Company also expects that payments by participants to
owners of beneficial interest in such Registered Global Security held through
such participants will be governed by standing instructions and customary
practices, as is now the case with the securities held for the accounts of
customers registered in "street names," and will be the responsibility of such
participants.
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary
and a successor Depositary is not appointed by the Company within ninety days
or an Event of Default has occurred and is continuing with respect to such Debt
Securities, the Company will issue such Debt Securities in definitive form in
exchange for such Registered Global Security. In addition, the Company may at
any time and in its sole discretion determine not to have the Debt Securities
of a Series represented by one or more Registered Global Securities and, in
such event, will issue Debt Securities of such Series in definitive form in
exchange for the Registered Global Securities or Securities representing such
Debt Securities. (Section 2.8)
PROVISIONS APPLICABLE
SOLELY TO SENIOR DEBT SECURITIES
Limitations on Liens
The Senior Indenture provides that, so long as any of the Senior
Securities of a Series remain outstanding, unless the terms of any Series of
Senior Securities provide otherwise, the Company will not and will not permit
any Consolidated Subsidiary to issue, assume or guarantee any indebtedness for
money borrowed ("Indebtedness") secured by a mortgage, pledge, security
interest or other lien (a "Lien") upon or with respect to any Principal
Property or on the capital stock of any Consolidated Subsidiary that owns a
Principal Property unless (a) the Company makes effective provision pursuant to
which the Senior Securities shall be secured by such Lien equally and ratably
with any and all other obligations and Indebtedness thereby secured, or (b) the
aggregate amount of all such Indebtedness secured by such a Lien on the Company
and its Consolidated Subsidiaries then outstanding, together with all
Attributable Debt in respect of sale and lease-back transactions existing at
such time (with the exception of transactions which are not subject to the
limitation described in "Limitation on Sale
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and Lease-Back Transactions" below), would not exceed 15% of the Consolidated
Net Tangible Assets of the Company.
Such limitation will not apply to, and there shall be excluded in
computing such Indebtedness for purposes of this restriction, certain permitted
Liens including (a) Liens existing as of the date of the issuance of Senior
Securities of any Series, (b) Liens on property or assets of, or any shares of
stock or securing Indebtedness of, any corporation existing at the time such
corporation becomes a Consolidated Subsidiary, (c) Liens on property or assets
or shares of stock or securing Indebtedness existing at the time of acquisition
(including acquisition through merger or consolidation) and certain Liens to
secure Indebtedness incurred prior to, at the time of or within 180 days after
the later of the completion of the acquisition of, or the completion of the
construction of and commencement of operation of, any such property, for the
purpose of financing all or any part of the purchase price or construction cost
thereof, (d) Liens to secure certain development, operation, construction,
alteration, repair or improvement costs, (e) Liens in favor of, or which secure
Indebtedness owing to, the Company or a Consolidated Subsidiary, (f) Liens in
connection with government contracts, including the assignment of moneys due or
to come due thereon, (g) certain Liens in connection with legal proceedings to
the extent such proceedings are being contested in good faith, (h) certain
Liens arising in the ordinary course of business and not in connection with the
borrowing of money such as mechanics', materialmans', carriers' or other
similar Liens, (i) Liens on property securing obligations issued by a domestic
governmental issuer to finance the cost of acquisition or construction of such
property, and (j) extensions, substitutions, replacements or renewals of the
foregoing if the principal amount of the indebtedness secured thereby is not
increased and is not secured by any additional assets. (Section 3.5 of the
Senior Indenture)
Limitation on Sale and Lease-Back Transactions
The Senior Indenture provides that, so long as any of the Senior
Securities of a Series remain outstanding, unless the terms of any Series of
Senior Securities provide otherwise, neither the Company nor any Consolidated
Subsidiary may enter into any arrangement with any person (other than the
Company) providing for the leasing by the Company or a Consolidated Subsidiary
of any Principal Property (except for temporary leases for a term of not more
than three years), which Principal Property has been or is to be sold or
transferred more than 120 days after such Principal Property has been owned by
the Company or such Consolidated Subsidiary and completion of construction and
commencement of full operation thereof, by the Company or a Consolidated
Subsidiary to such person (herein referred as a "Sale and Lease-Back
Transaction"). (Sections 3.5 and 3.6 of the Senior Indenture)
Such limitation will not apply to any Sale and Lease-Back Transaction if
(a) the net proceeds to the Company or such Consolidated Subsidiary from the
sale or transfer equal or exceed the fair value (as determined by the Board of
Directors of the Company) of the Principal Property so leased, (b) the Company
or such Consolidated Subsidiary
12
<PAGE> 14
could incur Indebtedness secured by a Lien on the Principal Property to be
leased pursuant to "Limitation on Liens" above in an amount equal to the
Attributable Debt with respect to such Sale and Lease-Back Transaction without
equally and ratably securing the Senior Securities or (c) the Company, within
120 days after the effective date of any such Sale and Lease-Back Transaction,
applies an amount equal to the fair value (as determined by the Board of
Directors of the Company) of the Principal Property so leased to (x) the
retirement of Funded Debt (including Debt Securities) of the Company or (y) the
acquisition of additional real property. (Section 3.6 of the Senior
Indenture).
Certain Definitions
The term "Attributable Debt," in respect of the Sale and Lease-Back
Transactions described above, is defined to mean as of any particular time, the
present value, discounted at the Composite Rate, of the obligation of a lessee
for rental payments during the remaining term of any lease (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended). Sale and Lease-Back Transactions with respect to
facilities financed with certain tax exempt securities are excepted from the
definition. (Section 1.1 of the Senior Indenture)
The term "Consolidated Net Tangible Assets" is defined to mean the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current liabilities
(excluding any thereof constituting Funded Debt by reason of being extendible
or renewable), and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the books and records of the Company and its Consolidated Subsidiaries
and computed in accordance with generally accepted accounting principles.
(Section 1.1 of the Senior Indenture)
The term "Consolidated Subsidiary" is defined to mean a subsidiary of the
Company the accounts of which are consolidated with those of the Company in
accordance with generally accepted accounting principles. (Section 1.1 of the
Senior Indenture)
The term "Funded Debt" is defined to mean all indebtedness for the
repayment of money borrowed, whether or not evidenced by a bond, debenture,
note or similar instrument or agreement, having a final maturity of more than
12 months after the date of its creation or having a final maturity of less
than 12 months after the date of its creation but by its terms being renewable
or extendible beyond 12 months after such date at the option of the borrower
(excluding obligations under any capital leases). For the purpose of
determining "Funded Debt," there shall be excluded any particular indebtedness
if, on or prior to the final maturity thereof, there shall have been deposited
with the proper depositary in trust the necessary funds for the payment,
redemption or satisfaction of such indebtedness. (Section 1.1 of the Senior
Indenture)
13
<PAGE> 15
The term "Principal Property" is defined to mean, as of any date, any
building, structure or other facility together with the land upon which it is
erected and fixtures comprising a part thereof, used primarily for
manufacturing, processing or production (other than any pollution control
facility), in each case located in the United States, and owned or leased or to
be owned or leased by the Company or any Consolidated Subsidiary, and in each
case the net book value of which as of such date exceeds 2% of the Consolidated
Net Tangible Assets of the Company as shown on the consolidated balance sheet
contained in the latest filing of the Company with the Commission, other than
any such land, building, structure or other facility or portion thereof which,
in the opinion of the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its Consolidated
Subsidiaries, considered as one enterprise.
PROVISIONS APPLICABLE SOLELY
TO SUBORDINATED DEBT SECURITIES
Subordination. The Subordinated Securities will be subordinate and junior
in right of payment, to the extent set forth in the Subordinated Indenture, to
all Senior Indebtedness (as defined below) of the Company. If the Company
should default in the payment of any principal of or premium or interest on any
Senior Indebtedness when the same becomes due and payable, whether at maturity
or at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, upon written notice of such default to the Company by the
holders of such Senior Indebtedness or any trustee therefor and subject to
certain rights of the Company to dispute such default and subject to proper
notification of the Trustee, unless and until such default shall have been
cured or waived or shall have ceased to exist, no direct or indirect payment
(in cash, property, securities, by set-off or otherwise) will be made or agreed
to be made for principal of, premium, if any, or interest, if any, on the
Subordinated Securities, or in respect of any redemption, retirement, purchase
or other acquisition of the Subordinated Securities other than those made in
capital stock of the Company (or cash in lieu of fractional shares thereof).
(Sections 14.1, 14.4 and 14.5 of the Subordinated Indenture)
The term "Senior Indebtedness" is defined to mean indebtedness or
obligations (other than the Subordinated Debt Securities) of, or guaranteed or
assumed by, the Company for borrowed money which is evidenced by (i) bonds,
debentures, notes, or other similar instruments, or (ii) capital leases,
whether outstanding at the date of the Subordinated Indenture or subsequently
incurred, unless the terms of such indebtedness provide that such indebtedness
is not senior in right of payment to the Subordinated Debt Securities, and
amendments, renewals, extensions, modifications and refinancings of any such
indebtedness or obligations. (Section 1.1 of the Subordinated Indenture)
If (i) without the consent of the Company a court shall enter an order for
relief with respect to the Company under the United States federal bankruptcy
laws or a judgment, order or decree adjudging the Company a bankrupt or
insolvent, or enter an order for relief for
14
<PAGE> 16
reorganization, arrangement, adjustment or composition of or in respect of the
Company under the United States federal or state bankruptcy or insolvency laws
or (ii) the Company shall institute proceedings for the entry of an order for
relief with respect to the Company under the United States federal bankruptcy
laws or for an adjudication of insolvency, or shall consent to the institution
of bankruptcy or insolvency proceedings against it, or shall file a petition
seeking, or seek or consent to reorganization, arrangement, composition or
similar relief under any applicable law, or shall consent to the filing of such
petition or to the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator or similar official in respect of the Company or of
substantially all of its property, or the Company shall make a general
assignment for the benefit of creditors, then all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) will first be paid in full before any payment or distribution,
whether in cash, securities or other property, is made on account of the
principal of, or interest, if any, on the Subordinated Securities. In such
event, any payment or distribution on account of the principal of, or interest,
if any, on the Subordinated Securities, whether in cash, securities or other
property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in the subordination provisions
with respect to the Subordinated Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), which would otherwise
(but for the subordination provisions) be payable or deliverable in respect of
the Subordinated Securities will be paid or delivered directly to the holders
of Senior Indebtedness in accordance with the priorities then existing among
such holders until all Senior Indebtedness (including any interest thereon
accruing after the commencement of any such proceedings) has been paid in full.
If any payment or distribution on account of the principal of, or interest, if
any, on the Subordinated Securities of any character, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Subordinated Securities, to the
payment of all Senior Indebtedness then outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), shall be received by a holder of any Subordinated Securities in
contravention of any of the terms of the Subordinated Indenture and before all
the Senior Indebtedness shall have been paid in full, such payment or
distribution of securities will be received in trust for the benefit of, and
will be paid over or delivered and transferred to, the holders of the Senior
Indebtedness then outstanding in accordance with the priorities then existing
among such holders for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all such Senior Indebtedness in
full. In the event of any such proceeding, after payment in full of all sums
owing with respect to Senior Indebtedness, the holders of Subordinated
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Subordinated Securities, will be entitled to be repaid
from the remaining assets of
15
<PAGE> 17
the Company the amounts at that time due and owing on account of unpaid
principal of or any interest on the Subordinated Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or obligations of
the Company ranking junior to the Subordinated Securities and such other
obligations. (Section 14.1 of the Subordinated Indenture)
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness may receive more, ratably, than holders
of the Subordinated Securities. In addition, other creditors of the Company
who are not holders of Subordinated Securities or holders of Senior
Indebtedness may recover less, ratably, than holders of Senior Indebtedness and
may recover more, ratably, than holders of Subordinated Securities. Such
subordination will not prevent the occurrence of an Event of Default or limit
the right of acceleration in respect of the Subordinated Securities.
EVENTS OF DEFAULT
An Event of Default with respect to the Debt Securities of any Series is
defined in each Indenture as: (i) default in the payment of any installment of
interest upon any of the Debt 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; (ii) default in the payment of all or any part of the principal of any
of the Debt Securities of such Series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise;
(iii) default in the performance, or breach, of any other covenant or warranty
of the Company contained in the Debt Securities of such Series or set forth in
the Indenture (other than a covenant or warranty included in the Indenture
solely for the benefit of a Series of Debt Securities other than that Series)
and continuance of such default or breach for a period of 90 days after due
notice by the applicable Trustee or by the holders of at least 25% in principal
amount of the Outstanding Securities of that Series; or (iv) certain events of
bankruptcy, insolvency or reorganization of the Company. (Section 5.1)
Additional Events of Default may be added for the benefit of holders of certain
Series of Debt Securities which, if added, will be described in the Prospectus
Supplement relating to such Debt Securities. The Indentures provide that the
Trustee shall notify the holders of Debt Securities of each Series of any
continuing default known to the Trustee which has occurred with respect to that
Series within 90 days after the occurrence thereof. The Indentures provide
that notwithstanding the foregoing, except in the case of default in the
payment of the principal of or interest on any of the Debt Securities of such
Series the Trustee may withhold such notice if the Trustee in good faith
determines that the withholding of such notice is in the interests of the
holders of Debt Securities of such Series. (Section 6.5)
The Indentures provide that if an Event of Default with respect to any
Series of Debt Securities shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in aggregate principal amount of
Debt Securities of that Series then outstanding may
16
<PAGE> 18
declare the principal amount of all Debt Securities of that Series to be due
and payable immediately, but upon certain conditions such declaration may be
annulled. (Section 5.1) Any past defaults and the consequences thereof
(except a default in the payment of principal of or interest on Debt Securities
of that Series) may be waived by the holders of a majority in principal amount
of the Debt Securities of that Series then outstanding. (Section 5.9) The
Senior Indenture also permits the Company to omit compliance with certain
covenants in such Indenture with respect to Senior Securities of any Series
upon waiver by the holders of a majority in principal amount of the Senior
Securities of such Series then outstanding. (Section 3.7)
Subject to the provisions of each Indenture relating to the duties of each
Trustee, in case an Event of Default with respect to any Series of Debt
Securities shall occur and be continuing, neither Trustee shall be under any
obligation to exercise any of the trusts or powers vested in it by either
Indenture at the request or direction of any of the holders of that Series,
unless such holders shall have offered to such Trustee reasonable security or
indemnity. (Section 6.1 and 6.2) The holders of a majority in aggregate
principal amount of the Debt Securities of each Series affected and then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee under the
applicable Indenture or exercising any trust or power conferred on the Trustee
with respect to the Debt Securities of that Series; provided that the Trustee
may refuse to follow any direction which is in conflict with any law or such
Indenture and subject to certain other limitations. (Section 5.8)
No holder of any Debt Security of any Series will have any right by virtue
or by availing of any provision of the applicable Indenture to institute any
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to such Indenture or for any remedy thereunder, unless such holder
shall have previously given the applicable Trustee written notice of an Event
of Default with respect to Debt Securities of that Series and unless also the
holders of at least 25% in aggregate principal amount of the outstanding Debt
Securities of that Series shall have made written request, and offered
reasonable indemnity, to the applicable Trustee to institute such proceeding as
trustee and the applicable Trustee shall have failed to institute such
proceeding within 60 days after its receipt of such request, and the applicable
Trustee shall not have received from the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of that Series a direction
inconsistent with such request. (Section 5.5) However, the right of a holder
of any Debt Security to receive payment of the principal of and any interest on
such Debt Security on or after the due dates expressed in such Debt Security,
or to institute suit for the enforcement of any such payment on or after such
dates, shall not be impaired or affected without the consent of such holder.
(Section 5.6)
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<PAGE> 19
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Each Indenture provides that the Company may consolidate with, or sell,
convey or lease all or substantially all of its assets to, or merge with or
into, any other corporation, if (i) either the Company is the continuing
corporation, or the successor corporation is a domestic corporation and
expressly assumes the due and punctual payment of the principal of and interest
on all the Debt Securities outstanding under the Indenture according to their
tenor and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed or observed by the
Company and (ii) immediately after such merger or consolidation, or such sale,
conveyance or lease, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred
and be continuing. (Section 9.1)
SATISFACTION AND DISCHARGE OF INDENTURES
Each Indenture with respect to any Series (except for certain specified
surviving obligations including, among other things, the Company's obligation
to pay the principal of and interest on the Debt Securities of such Series)
will be discharged and cancelled upon the satisfaction of certain conditions,
including the payment of all principal of and interest on all the Debt
Securities of such Series or the deposit with the applicable Trustee of cash or
appropriate Government Obligations or a combination thereof sufficient for such
payment or redemption in accordance with the Indenture and the terms of the
Debt Securities of such Series. (Section 10.1)
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting the Company and the
applicable Trustee, with the consent of the holders of not less than a majority
in aggregate principal amount of the Debt Securities of each Series at the time
outstanding under such Indenture, to execute supplemental indentures adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, such Indenture or any supplemental indenture with respect to the Debt
Securities of such Series or modifying in any manner the rights of the holders
of the Debt Securities of such Series; provided that no such supplemental
indenture may (i) extend the stated maturity of the principal of any Debt
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
reduce any amount payable on redemption thereof or change the currency in which
the principal thereof (including any amount with respect to original issue
discount) or interest thereon is payable or reduce the amount of original issue
discount security payable upon acceleration or provable in bankruptcy or alter
certain provisions of the Indenture relating to Debt Securities not denominated
in U.S. dollars, or impair or affect the right of any holder of Debt
Securities to institute suit for payment thereof or, if the Debt Securities
provide
18
<PAGE> 20
therefor, any right of repayment at the option of the holders of the Debt
Securities, without the consent of the holder of each Debt Security so
affected, (ii) reduce the aforesaid percentage of Debt Securities of such
Series, the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all Debt
Securities of such Series so affected or (iii) with respect to the Subordinated
Indenture, modify the provisions relating to the subordination of the
Subordinated Securities in a manner materially adverse to the Holders of the
Subordinated Securities. (Section 8.2) Additionally, in certain prescribed
instances, the Company and the Trustee may execute supplemental indentures
without the consent of the holders of Debt Securities. (Section 8.1)
The Subordinated Indenture may not be amended to alter the subordination
of any outstanding Subordinated Securities without the consent of each holder
of Senior Indebtedness then outstanding that would be materially adversely
affected thereby. (Section 8.6 of the Subordinated Indenture)
DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides, if such provision is made applicable to the Debt
Securities of any Series, that the Company may elect either (a) to terminate
(and be deemed to have satisfied) all its obligations with respect to such Debt
Securities (except for the obligations to register the transfer or exchange of
such Debt Securities, to replace mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities,
to compensate and indemnify the Trustee and to punctually pay or cause to be
paid the principal of, and interest on, all Debt Securities of such Series when
due) ("defeasance") or (b) with respect to the Senior Securities, to be
released from its obligations with respect to such Senior Securities under
Section 3.5 and 3.6 of the Indenture (being the restrictions described above
under "Limitations on Liens" and "Limitations on Sale and Leaseback
Transactions") ("covenant defeasance"), upon the deposit with the Trustee, in
trust for such purpose, of money and/or Government Obligations which through
the payment of principal and interest in accordance with their terms will
provide money, in an amount sufficient (in the opinion of a nationally
recognized firm of independent public accountants) to pay the principal of and
interest, if any, on the outstanding Debt Securities of such Series, and any
mandatory sinking fund or analogous payments thereon, on the scheduled due
dates therefor. Such a trust may be established only if, among other things,
the Company has delivered to the Trustee an opinion of counsel (as specified in
the Indenture) with regard to certain matters, including an opinion to the
effect that the Holders of such Debt Securities will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit and
discharge and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit and defeasance or covenant defeasance, as the case may be, had not
occurred. The Prospectus Supplement may further describe these or other
provisions, if any, permitting defeasance or covenant defeasance with respect
to the Debt Securities of any Series. (Section 10.1)
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<PAGE> 21
APPLICABLE LAW
The Debt Securities and the Indentures will be governed by, and construed
in accordance with, the laws of the State of New York. (Section 11.8)
CONCERNING THE TRUSTEE
The Senior Trustee may provide various commercial banking services to
the Company from time to time.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities (i) through agents, (ii) through
underwriters, (iii) through dealers or (iv) directly to purchasers (through a
specific bidding or auction process or otherwise).
Offers to purchase Debt Securities may be solicited by agents designated
by the Company from time to time. Any such agent involved in the offer or sale
of the Offered Securities will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment. Any such agent may
be deemed to be an underwriter, as that term is defined in the Securities Act,
of the Debt Securities so offered and sold. Agents may be entitled under
agreements which may be entered into with the Company to indemnification by the
Company against certain liabilities, including liabilities under the Securities
Act, and may be customers of, engaged in transactions with or perform services
for the Company in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers, if any, will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales
of Offered Securities. The underwriters may be entitled, under the relevant
underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and such
underwriters or their affiliates may be customers of, engage in transactions
with, or perform services for the Company in the ordinary course of business.
If a dealer is utilized in the sale of Offered Securities, the Company
will sell such Debt Securities to the dealer, as principal. The
20
<PAGE> 22
dealer may then resell such Debt Securities to the public at varying prices to
be determined by such dealer at the time of resale. Dealers may be entitled,
under agreements which may be entered into with the Company, to indemnification
by the Company against certain liabilities, including liabilities under the
Securities Act, and such dealers or their affiliates may be customers of,
extend credit to or engage in transactions with, or perform services for the
Company in the ordinary course of business. The name of any dealer and the
terms of the transactions will be set forth in the Prospectus Supplement
relating thereto.
Offers to purchase Debt Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to institutional
investors or others. The terms of any such sales, including the terms of any
bidding or auction process, if utilized, will be described in the Prospectus
Supplement relating thereto.
Debt Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or
otherwise, by one or more firms ("remarketing firms"), acting as principals for
their own accounts or as agents for the Company. Any remarketing firm will be
identified and the terms of its agreement, if any, with the Company and its
compensation will be described in the Prospectus Supplement. Remarketing firms
may be deemed to be underwriters in connection with the Debt Securities
remarketed thereby. Remarketing firms may be entitled under agreements which
may be entered into with the Company to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Debt Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on the date stated in the Prospectus
Supplement. Such Contracts will be subject to only those conditions set forth
in the Prospectus Supplement. A commission indicated in the Prospectus
Supplement will be paid to underwriters and agents soliciting purchases of Debt
Securities pursuant to Contracts accepted by the Company.
The place and time of delivery for the Debt Securities in respect of which
this Prospectus is delivered are set forth in the Prospectus Supplement.
21
<PAGE> 23
LEGAL MATTERS
The validity of the issuance of the Debt Securities offered hereby will be
passed upon for the Company by Kirkland & Ellis, special counsel to the
Company. Certain legal matters in connection with the Debt Securities offered
hereby will be passed upon for the underwriters, if any, by Sidley & Austin,
Chicago, Illinois.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K for the year ended May 29, 1994, have been so
incorporated in reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
22
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee $103,448
Rating Agency fees $120,000
Trustees' fees $ 10,000
Legal fees and expenses $ 50,000
Accounting fees $ 3,000
Printing and engraving $ 3,000
Blue Sky fees and expenses (including legal
fees and disbursements) $ 10,000
Miscellaneous $ 10,000
--------
$309,448
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") gives corporations the power to indemnify directors and
officers under certain circumstances. The Company's Restated Certificate of
Incorporation provides for the indemnification of directors and officers of the
Company to the fullest extent permitted by Section 145.
Article XIII of the By-laws of the Registrant provides for the
indemnification of officers, directors and others against losses as a result of
acting on behalf of the Registrant.
The Registrant also maintains directors and officers liability and
corporate reimbursement insurance which provides for coverage against loss
arising from claims made against directors and officers in their capacity as
such. The general scope of coverage is any breach of duty, neglect, error,
misstatement, misleading statement or omission. Such policy does not exclude
liabilities under the Securities Act of 1933.
ITEM 16. EXHIBITS
The exhibits listed on the Exhibit Index, page E-I, are filed as part of
the Registration Statement.
II-1
<PAGE> 25
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any action
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
THE COMPANY HEREBY UNDERTAKES THAT:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) (a)(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the
II-2
<PAGE> 26
registration statement or any material change to such information in
the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this registration statement shall be deemed to
be a new registration statement relating to the securities offered therein and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(4) The undersigned registrant hereby undertakes with respect to
the Subordinated Securities to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
section 310 of the Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Commission under section 305(b)(2) of the Act.
II-3
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the Village of Franklin Park, State of Illinois, on the 19th
day of January, 1995.
DEAN FOODS COMPANY
By: /s/Howard M. Dean
________________________
Howard M. Dean
Chairman of the Board and
Chief Executive Officer
Each person whose signature appears below hereby constitutes and
appoints Howard M. Dean and Thomas L. Rose, and each of them (with full power
to each of them to act alone), his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated as of the 19th day of January, 1995.
Signature Title
--------- -----
/s/HOWARD M. DEAN Chairman of the Board and
- ----------------------------------- Chief Executive Officer
Howard M. Dean and Director
/s/THOMAS L. ROSE President and Chief Operating
- ----------------------------------- Officer and Director
Thomas L. Rose
/s/DALE I. HECOX Treasurer (Principal
- ----------------------------------- Accounting Officer)
Dale I. Hecox
II-4
<PAGE> 28
/s/TIMOTHY J. BONDY Vice President - Finance
- ----------------------------------- (Principal Financial
Timothy J. Bondy Officer)
/s/LEWIS M. COLLENS Director
- -----------------------------------
Lewis M. Collens
/s/PAULA H. CROWN Director
- -----------------------------------
Paula H. Crown
/s/WILLIAM D. FISCHER Director
- -----------------------------------
William D. Fischer
/s/JOHN P. FRAZEE, JR. Director
- -----------------------------------
John P. Frazee, Jr.
/s/BERT A. GETZ Director
- -----------------------------------
Bert A. Getz
/s/JOHN S. LLEWELLYN, JR. Director
- -----------------------------------
John S. Llewellyn, Jr.
/s/ANDREW J. MC KENNA Director
- -----------------------------------
Andrew J. McKenna
/s/THOMAS A. RAVENCROFT Senior Vice President and
- ----------------------------------- Director
Thomas A. Ravencroft
/s/ALEXANDER J. VOGL Director
- -----------------------------------
Alexander J. Vogl
II-5
<PAGE> 29
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Page No.
- ------ --------
<S> <C> <C>
1.1 Form of Underwriting Agreement Basic Provisions for
Senior Securities (to be filed as an Exhibit to a
Current Report on Form 8-K at the time of an offering
of securities)
1.2 Form of Underwriting Agreement Basic Provisions for
Subordinated Securities (to be filed as an Exhibit to a
Current Report on Form 8-K at the time of an offering of
securities)
4.1 Form of Senior Indenture dated as of January 15, 1995,
between the Company and Bank of America Illinois, as
Trustee
4.2 Form of Senior Debt Securities
4.3 Form of Subordinated Indenture
4.4 Form of Subordinated Debt Securities
5. Opinion of Kirkland & Ellis as to validity of issuance
12 Calculation of Ratio of Earnings to Fixed Charges
23.1 Consent of Price Waterhouse LLP
23.2 The consent of Kirkland & Ellis is included in their
opinion filed as Exhibit 5 to this Registration
Statement
24 Power of Attorney (contained on page II-4)
25.1 Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of Bank of America Illinois
(Senior Securities)
25.2 Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 (Subordinated Securities) (to
be filed as an Exhibit to a Current Report on Form 8-K
at the time of an offering of securities)
</TABLE>
E-1
<PAGE> 1
EXHIBIT 4.1
DEAN FOODS COMPANY
AND
BANK OF AMERICA ILLINOIS,
Trustee
Senior Debt Securities
INDENTURE
Dated as of January 15, 1995
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.1 Certain Terms Defined 1
Attributable Debt 2
Authorized Newspaper 2
Board of Directors 2
Business Day 2
Commission 2
Company 3
Company Notice 3
Composite Rate 3
Consolidated Net Tangible Assets 3
Consolidated Subsidiary 3
Corporate Trust Office 3
Coupon 4
Covenant defeasance 4
Defaulted interest 4
Defeasance 4
Depositary 4
Depositary Security 4
Dollar 4
ECU 4
Event of Default 4
Foreign Currency 4
Funded Debt 4
Government Obligations 5
Holder 5
Holder of Securities 5
Registered Holder 5
Securityholder 5
Indebtedness 5
Indenture 5
Journal 5
Lien 5
Market Exchange Rate 5
Maturity 5
Officers' Certificate 5
Opinion of Counsel 6
Original Issue Date 6
Original Issue Discount Security 6
Outstanding 6
Paying Agent 7
Persons 7
Person 7
Place of Payment 7
Principal 7
Principal Property 7
<PAGE> 3
Record date 7
Registered Global Security 7
Registered Security 7
Responsible Officer 8
Sale and lease-back transaction 8
Security 8
Securities 8
Security Register 8
Series 8
Series of Securities 8
Stated Maturity 8
Subsidiary 8
Trust Indenture Act 8
TIA 8
Trustee 8
United States of America 9
Unregistered Security 9
U.S. Person 9
Vice President 9
ARTICLE II SECURITIES 9
SECTION 2.1 Forms Generally 9
SECTION 2.2 Form of Trustee's Certificate
of Authentication 10
SECTION 2.3 Amount Unlimited; Issuable in
Series 10
SECTION 2.4 Authentication and Delivery
of Securities 13
SECTION 2.5 Execution of Securities 15
SECTION 2.6 Certificate of Authentication 15
SECTION 2.7 Denomination and Date of
Securities; Payments of Interest 16
SECTION 2.8 Registration, Transfer and
Exchange 18
SECTION 2.9 Mutilated, Defaced, Destroyed,
Lost and Stolen Securities 22
SECTION 2.10 Cancellation of Securities,
Destruction Thereof 23
SECTION 2.11 Temporary Securities 23
<PAGE> 4
ARTICLE III COVENANTS OF THE COMPANY 24
SECTION 3.1 Payment of Principal and Interest 24
SECTION 3.2 Offices for Payment, etc. 25
SECTION 3.3 Paying Agents 26
SECTION 3.4 Written Statement to Trustee 27
SECTION 3.5 Limitation Upon Liens 27
SECTION 3.6 Limitation on Sale and Lease-back
Transactions 30
SECTION 3.7 Waiver of Certain Covenants 30
SECTION 3.8 Luxembourg Publications 31
ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE 31
SECTION 4.1 Company to Furnish Trustee
Information as to Names and
Addresses of Securityholders 31
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists 31
SECTION 4.3 Reports by the Company 33
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT 34
SECTION 5.1 Event of Default Defined;
Acceleration of Maturity;
Waiver of Default 34
SECTION 5.2 Collection of Indebtedness By
Trustee; Trustee May Prove Debt 36
SECTION 5.3 Application of Proceeds 39
SECTION 5.4 Restoration of Rights on
Abandonment of Proceedings 39
SECTION 5.5 Limitations on Suits by
Securityholders 40
<PAGE> 5
SECTION 5.6 Unconditional Right of Security-
holders to Institute Certain
Suits 40
SECTION 5.7 Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default 41
SECTION 5.8 Control by Securityholders 41
SECTION 5.9 Waiver of Past Defaults 41
SECTION 5.10 Right of Court to Require
Filing of Undertaking to Pay
Costs 42
SECTION 5.11 Suits for Enforcement 42
ARTICLE VI CONCERNING THE TRUSTEE 42
SECTION 6.1 Duties of Trustee 42
SECTION 6.2 Rights of Trustee 44
SECTION 6.3 Individual Rights of Trustee 44
SECTION 6.4 Trustee's Disclaimer 44
SECTION 6.5 Notice of Defaults 45
SECTION 6.6 Reports by Trustee to Holders 45
SECTION 6.7 Compensation and Indemnity 45
SECTION 6.8 Replacement of Trustee 46
SECTION 6.9 Successor Trustee by Merger 47
SECTION 6.10 Eligibility; Disqualification 47
SECTION 6.11 Preferential Collection of Claims
Against Company 47
ARTICLE VII CONCERNING THE SECURITYHOLDERS 47
SECTION 7.1 Evidence of Action Taken by
Securityholders 47
SECTION 7.2 Proof of Execution of Instruments 48
SECTION 7.3 Holders to Be Treated as Owners 48
SECTION 7.4 Securities Owned by Company Deemed
Not Outstanding 48
<PAGE> 6
SECTION 7.5 Right of Revocation of Action
Taken 49
ARTICLE VIII SUPPLEMENTAL INDENTURES 49
SECTION 8.1 Supplemental Indentures Without
Consent of Securityholders 49
SECTION 8.2 Supplemental Indentures With
Consent of Securityholders 50
SECTION 8.3 Effect of Supplemental Indenture 52
SECTION 8.4 Documents to Be Given to Trustee 52
SECTION 8.5 Notation on Securities in
Respect of Supplemental
Indentures 52
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE 53
SECTION 9.1 Company May Consolidate, etc., on
Certain Terms 53
SECTION 9.2 Successor Corporation Substituted 53
SECTION 9.3 Opinion of Counsel to Trustee 54
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS 54
SECTION 10.1 Satisfaction and Discharge
of Indenture 54
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of
Securities 58
SECTION 10.3 Repayment of Moneys Held by
Paying Agent 58
SECTION 10.4 Return of Unclaimed Moneys Held
by Trustee and Paying Agent 59
SECTION 10.5 Reinstatement of Company's
Obligations 59
ARTICLE XI MISCELLANEOUS PROVISIONS 60
SECTION 11.1 Incorporators, Stockholders,
Officers and Directors of Company
Exempt from Individual Liability 60
<PAGE> 7
SECTION 11.2 Provisions of Indenture for the
Benefit of Parties and
Securityholders 60
SECTION 11.3 Successors and Assigns of
Company Bound by Indenture 60
SECTION 11.4 Notices and Demands on Company,
Trustee and Securityholders 60
SECTION 11.5 Officers' Certificates and Opinions
of Counsel; Statements to Be
Contained Therein 61
SECTION 11.6 Payments Due on Saturdays, Sundays
and Holidays 62
SECTION 11.7 Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939 63
SECTION 11.8 New York Law to Govern 63
SECTION 11.9 Counterparts 63
SECTION 11.10 Effect of Headings; Gender 63
SECTION 11.11 Securities in a Foreign
Currency or in ECU 63
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS 64
SECTION 12.1 Applicability of Article 64
SECTION 12.2 Notice of Redemption; Partial
Redemptions 64
SECTION 12.3 Payment of Securities Called for
Redemption 66
SECTION 12.4 Exclusion of Certain
Securities from Eligibility for
Selection for Redemption 67
SECTION 12.5 Mandatory and Optional Sinking
Funds 67
SECTION 12.6 Repayment at the Option of the
Holders 70
<PAGE> 8
DEAN FOODS COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of January 15, 1995
<TABLE>
<CAPTION>
Trust Indenture Indenture Section
Act Section
<S> <C>
Section 310 (a)(1) ................................ 6.10
(a)(2) ................................ 6.10
(a)(3) ................................ Not Applicable
(a)(4) ................................ Not Applicable
(a)(5) ................................ 6.10
(b) ................................ 6.8, 6.10
Section 311 (a) ................................ 6.11
(b) ................................ 6.11
Section 312 (a) ................................ 4.1 and 4.2
(b) ................................ 4.2
(c) ................................ 4.2
Section 313 (a)(1)-(5) & (7)-(8)............................ 6.6
(a)(6) ................................ Not Applicable
(b)(1) ................................ Not Applicable
(b)(2) ................................ 6.6
(c) ................................ 6.6
(d) ................................ 6.6
Section 314 (a)(1)-(3) ................................ 4.3
(a)(4) ................................ 3.4
(b) ................................ Not Applicable
(c)(1) ................................ 11.5
(c)(2) ................................ 11.5
(c)(3) ................................ Not Applicable
(d) ................................ Not Applicable
(e) ................................ 11.5
(f) ................................ Not Applicable
Section 315 (a) ................................ 6.1
(b) ................................ 6.5
(c) ................................ 6.1
(d) ................................ 6.1
(d)(1) ................................ 6.1
(d)(2) ................................ 6.1
(d)(3) ................................ 6.1
(e) ................................ 5.10
Section 316 (a) ................................ 7.4
(a)(1)(A) ................................ 5.8
(a)(1)(B) ................................ 5.1, 5.9
(a)(2) ................................ Not Applicable
(b) ................................ 5.6
(c) ................................ 7.1
Section 317 (a)(1) ................................ 5.2
</TABLE>
<PAGE> 9
(a)(2) ............................... 5.2
(b) ............................... 3.3
Section 318 (a) ............................... 11.7
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 10
THIS INDENTURE, dated as of January 15, 1995 between DEAN FOODS COMPANY, a
Delaware corporation (the "Company"), and Bank of America Illinois, a state
banking corporation organized under the laws of the State of Illinois (the
"Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more Series; 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, it is mutually agreed for the equal and proportionate benefit
of the respective Holders from time to time of the Securities or of a Series
thereof as follows:
ARTICLE I
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, as
amended, or the definitions of which in the Securities Act of 1933, as amended,
are referred to in the Trust Indenture Act of 1939, as amended, including terms
defined therein by reference to the Securities Act of 1933, as amended (except
as herein otherwise expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in the Trust
Indenture Act of 1939, as amended, and in Securities Act of 1933, as amended,
as in 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, as supplemented and amended from
<PAGE> 11
time to time, 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.
"Attributable Debt" means, as of any date upon which a determination of the
amount thereof shall be computed, as of any particular time, the present value,
discounted at the Composite Rate, of the obligation of a lessee for rental
payments during the remaining term of any lease (including any period for which
such lease has been extended or may, at the option of the lessor, be extended).
Attributable Debt shall not include any such arrangement for financing air,
water or noise pollution control facilities or sewage or solid waste disposal
facilities or involving industrial development bonds which are tax exempt
pursuant to Section 103 of the United States Internal Revenue Code, as amended
(or which receive similar tax treatment under any subsequent amendments thereto
or successor laws thereof).
"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
Luxembourger 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 in 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 Company or
any duly authorized committee of that Board.
"Business Day" means, except as may otherwise be provided in the form of
Securities of any particular Series, with respect to any Place of Payment or
place of publication, any day, other than a Saturday or Sunday, or a day on
which banking institutions are authorized or required by law or regulation to
close in that Place of Payment or place of publication.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution 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.
2
<PAGE> 12
"Company" means Dean Foods Company, a Delaware corporation, until a
successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean such
successor corporation.
"Company Notice" means the confirmation of the Company signed by an
officer, transmitted to the Trustee of the terms of the issuance of any
Securities.
"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 such 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 Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any thereof constituting
Funded Debt by reason of being extendible or renewable), and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles, all as set forth on the books and records of the
Company and its Consolidated Subsidiaries and computed in accordance with
generally accepted accounting principles.
"Consolidated Subsidiary" means a subsidiary of the Company the accounts of
which are consolidated with those of the Company in accordance with generally
accepted accounting principles.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is
located at 231 South LaSalle Street, Chicago, Illinois 60697.
3
<PAGE> 13
"Coupon" means any interest coupon appertaining to a Security.
"covenant defeasance" has the meaning specified in Section 10.1(B)(iii).
"defaulted interest" has the meaning specified in Section 2.7.
"defeasance" has the meaning specified in Section 10.1(B)(ii).
"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.
"Depositary Security" means, with respect to any Series of Securities, a
Security executed by the Company and authenticated and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in
accordance with this Indenture and pursuant to a resolution of the Board of
Directors as contemplated by Section 2.3, which (i) shall be registered as to
principal and interest in the name of the Depositary or its nominee and (ii)
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such Series.
"Dollar" means the coin or currency of the United States of America which
as of 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" has the meaning specified in Section 5.1.
"Foreign Currency" means a currency issued by the government of a country
other than the United States.
"Funded Debt" means all indebtedness for the repayment of money borrowed,
whether or not evidenced by a bond, debenture, note or similar instrument or
agreement, having a final maturity of more than 12 months after the date of its
creation or having a final maturity of less than 12 months after the date of
its creation but by its terms being renewable or extendible beyond 12
4
<PAGE> 14
months after such date at the option of the borrower; provided, however, Funded
Debt shall not include any obligations of borrower under any capital leases.
For the purpose of determining "Funded Debt" of any corporation, there shall be
excluded any particular indebtedness if, on or prior to the final maturity
thereof, there shall have been deposited with the proper depositary in trust
the necessary funds for the payment, redemption or satisfaction of such
indebtedness.
"Government Obligations" means, unless otherwise specified pursuant to
Section 2.3, securities which are (i) direct obligations of the government
which issued the currency in which the Securities of such Series are
denominated for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by, or acting as an
agency or instrumentality of, the United States government, the payment of
which obligations is unconditionally guaranteed by such government, and which,
in either case, are full faith and credit obligations of such government, and
which are not callable or redeemable at the option of the issuer thereof prior
to their stated maturity.
"Holder", "Holder of Securities", "Registered Holder", "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, 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" has the meaning specified in Section 3.5.
"Indenture" means this instrument as originally executed and delivered or
as it may from time to time be 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 by Section 2.3.
"Journal" has the meaning specified in Section 11.11.
"Lien" has the meaning specified in Section 3.5.
"Market Exchange Rate" has the meaning specified in Section 11.11.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed on behalf of the Company
by the chairman of the Board of Directors or the vice chairman or the president
or any vice president and by the treasurer, the controller, any assistant
treasurer, the
5
<PAGE> 15
secretary or any assistant secretary of the Company and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 11.5.
"Opinion of Counsel" means a written opinion of legal counsel, who may be
an employee of or counsel to the Company, and who shall be reasonably
acceptable to the Trustee. Each Opinion of Counsel shall include the
statements provided for in Section 11.5, if and to the extent required hereby.
"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" when used with reference to Securities, subject to the
provisions of Section 7.4, means, as of any particular time, all Securities
authenticated and delivered 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 in the necessary amount and in the required currency shall have
been deposited in trust with the Trustee or with any Paying Agent (other than
the Company) or shall have been set aside, segregated and held in trust by
the Company for the Holders of such Securities (if the Company 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;
(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 and the Company is presented that such
Security is held by a person in whose hands such Security is a legal, valid
and binding obligation of the Company); and
(d) Securities as to which defeasance has been effected pursuant to
Section 10.1(B).
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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.
"Paying Agent" means any Person (which may include the Company) authorized
by the Company to pay the principal of or interest, if any, on any Security on
behalf of the Company.
"Persons" or "person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any Series,
means the place or places where the principal of and interest, if any, on the
Securities of that Series are payable as specified pursuant to Section 3.2.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any."
"Principal Property" means, as of any date, any building, or structure or
other facility together with the land upon which it is erected and fixtures
comprising a part thereof, used primarily for manufacturing, processing or
production (other than any pollution control facility), in each case located in
the United States, and owned or leased or to be owned or leased by the Company
or any Consolidated Subsidiary, and in each case the net book value of which as
of such date exceeds 2% of the Consolidated Net Tangible Assets of the Company
as shown on the consolidated balance sheet contained in the latest filing of
the Company with the Commission, other than any such land, building, structure
or other facility or portion thereof which, in the opinion of the Board of
Directors of the Company, is not of material importance to the total business
conducted by the Company and its Consolidated Subsidiaries, considered as one
enterprise.
"record date" has the meaning specified in Section 2.7.
"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 which is registered in the
Security Register.
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"Responsible Officer" when used with respect to the Trustee means any
officer within the corporate trust department (or any successor department) of
the Trustee including any vice president, assistant vice president, assistant
secretary, senior trust officer, trust officer 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 at the
Corporate Trust Office because of his or her knowledge of and familiarity with
the particular subject.
"sale and leaseback transaction" has the meaning specified in Section 3.6.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" has the meaning specified in Section 2.8.
"Series" or "Series of Securities" means all Securities of a similar tenor
authorized by a particular resolution of the Board of Directors.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date on which the principal
of such Security or such installment of principal or interest is due and
payable in accordance with the terms thereof.
"Subsidiary" means a corporation of which at the time of determination the
Company or one or more Subsidiaries of the Company, or the Company and one or
more Subsidiaries, own or control directly or indirectly sufficient securities
having general voting power under ordinary circumstances to elect a majority of
the board of directors of such corporation irrespective of whether at the time
of determination securities of any other class or classes shall have or might
have voting power by reason of the happening of any contingency.
"Trust Indenture Act" or "TIA" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939, as amended, 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 until a successor Trustee shall have become such pursuant to the
provision hereof, and thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
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"United States of America" means the United States of America (including
the states and the District of Columbia), its territories, possessions, the
Commonwealth of Puerto Rico and other areas subject to its jurisdiction.
"Unregistered Security" means any Security other than a Registered Security.
"U.S. Person" means a citizen or resident of the United States of America,
a corporation, partnership or other entity created or organized in or under the
laws of the United States of America or any political subdivision thereof or an
estate or trust the income of which is subject to United States of America
federal income taxation regardless of whether such income is from sources
within or without the United States of America or whether or not such income is
effectively connected with the conduct of a trade or business within the United
States of America.
"vice president" when used with respect to the Company 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."
ARTICLE II
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
(including temporary or definitive global form) as shall be established by or
pursuant to a resolution of the Board of Directors 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 (the provisions of which shall be appropriate to reflect the terms of
the Series of Securities represented thereby) and may have imprinted or
otherwise reproduced thereon such legend or legends, 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 the 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.
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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 Indenture.
______________________,
as Trustee
By: _______________________,
Authorized Signatory
or
______________________,
as Trustee
By: _______________________,
as Authentication Agent
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 all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant
to one or more resolutions of the Board of Directors and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any Series,
(a) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from all other Securities issued by
the Company);
(b) 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
Sections 2.8, 2.9, 2.11, 8.5 or 12.3);
(c) if other than 100% of their principal amount, the percentage of their
principal amount at which the Securities of the Series will be offered for
sale to the public;
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<PAGE> 20
(d) 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);
(e) the date or dates on which the principal of the Securities of the
Series is payable or the method of determination thereof;
(f) the rate or rates (which may be fixed or variable), or the method or
methods of determination thereof, at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the interest payment dates on which such interest shall be payable
and (in the case of Registered Securities) the record dates for the
determination of Holders to whom interest is payable;
(g) the place or places where the principal of, and interest, if any, on
Securities of the Series shall be payable (if other than as provided in
Section 3.2);
(h) the price or prices at which, the period or periods within which and
the terms and conditions upon which Securities of the Series may be redeemed,
in whole or in part, at the option of the Company;
(i) 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 pursuant to Section 5.1 or
provable in bankruptcy pursuant to Section 5.2;
(j) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the Series whether pursuant to any sinking fund or analogous
provisions or pursuant to other provisions set forth therein or at the option
of a Holder thereof and the price or prices at which and the period or
periods within which and the terms and conditions upon which Securities of
the Series shall be redeemed, purchased or repaid, in whole or in part;
(k) if other than denominations of $1,000, and any integral multiple
thereof, in the case of Registered Securities, or $1,000 and $5,000 in the
case of Unregistered Securities, the denominations in which Securities of the
Series shall be issuable;
(l) the form of the Securities, including such legends as required by law
or as the Company deems necessary or appropriate and the form of any
temporary global security which may be issued;
(m) if other than the coin or currency in which the Securities of that
Series are denominated, the coin or
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<PAGE> 21
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);
(n) if the principal of or interest on the Securities of such Series are
to be payable, at the election of the Company 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;
(o) 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;
(p) 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;
(q) whether, under what circumstances and in what amounts the Company 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 Company will have the option to
redeem such Securities rather than pay such additional amounts;
(r) 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, the form and terms of such certificates,
documents or conditions;
(s) if other than the Trustee, any trustees, depositaries, authenticating
or Paying Agents, transfer agents or registrars or any other agents with
respect to the Securities of such Series;
(t) if the Securities of such Series do not bear interest, the applicable
dates for purposes of Section 4.1 hereof;
(u) whether the Securities of such Series are to be issuable in whole or
in part in the form of one or more Depositary Securities, and, in such case,
the Depositary for such Securities;
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(v) the application, if any, of either or both of Section 10.1(B)(ii) or
10.1(B)(iii) to the Securities of the Series;
(w) any other events of default or covenants with respect to the
Securities of such Series; and
(x) any other terms or conditions upon which the Securities of the Series
are to be issued (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 as to denomination and except in the
case of Registered Securities as may otherwise be provided in or pursuant to
such resolution of the Board of Directors or in any such indenture supplemental
hereto. All Securities of any one Series need not be issued at the same time,
and unless otherwise provided, a Series may be reopened for issuances of
additional Securities of such Series.
SECTION 2.4 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series, having attached thereto
appropriate Coupons, if any, executed by the Company to the Trustee for
authentication, and the Trustee shall thereupon authenticate and make available
for delivery such Securities to or upon the written order of the Company,
signed by both (a) the chairman of its Board of Directors, or any vice chairman
of its Board of Directors, or its president or any vice president and (b) its
treasurer or any assistant treasurer, secretary or any assistant secretary
without any further action by the Company. 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:
(a) a copy of any resolution or resolutions of the Board of Directors
relating to such Series, in each case certified by the secretary or an
assistant secretary of the Company;
(b) a supplemental indenture, if any;
(c) an Officers' Certificate setting forth the form and terms of the
Securities of such Series and Coupons, if any, as required pursuant to
Sections 2.1 and 2.3, respectively, and prepared in accordance with Section
11.5;
(d) an Opinion of Counsel, prepared in accordance with Section 11.5, which
shall state that:
(i) the form or forms and terms of such Securities, and Coupons, if
any, have been established
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<PAGE> 23
by or pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Sections 2.1 and 2.3 in conformity
with the provisions of this Indenture and in conformity with such
resolution or supplemental indenture, as the case may be,
(ii) such Securities, and Coupons, if any, have been duly authorized,
and, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the
Company enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or other laws
relating to or affecting the enforcement of creditors' rights generally and
by general equitable principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
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 resolution of the Board of
Directors and/or Officers' Certificate otherwise required pursuant to Section
2.3 or the Officers' Certificate 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. After the original issuance of the first Security of such
Series to be issued, any separate request by the Company that the Trustee
authenticate Securities of such Series for original issuance will be deemed to
be a certification by the Company 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 is advised by counsel in good
faith that the issuance of such Securities would expose the Trustee to personal
liability or is unlawful.
If the Company 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 Company shall execute and the Trustee shall, in accordance
with this Section, 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
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<PAGE> 24
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 Company by
both (a) the chairman of its Board of Directors or its president or any vice
president and (b) its treasurer or any assistant treasurer or its secretary or
any assistant secretary, 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 such officers. The seal of the Company 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 Company 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 Company, 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 Company; and any Security or
Coupon may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Company, 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 and 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
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<PAGE> 25
shall have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Company 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.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of the Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of the 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 as shall be specified as contemplated
by Section 2.3. In the absence of any such specification with respect to the
Securities of any Series, Registered Securities shall be issuable in
denominations of $1,000 and any integral multiple thereof and Unregistered
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 Company 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 Company 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.
Unless otherwise provided as contemplated by Section 2.3, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any interest payment date shall be paid to the person in whose name
that Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on the regular record date for the payment
of such interest.
The term "record date" as used with respect to any interest payment date
(except for a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular Series, or,
if no such date is so specified, the close of business on the fifteenth day
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<PAGE> 26
preceding such interest payment date, whether or not such record date is a
Business Day.
Any interest on any Security of any Series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (called
"defaulted interest" for purposes of this Section) shall forthwith cease to be
payable to the Registered Holder on the relevant record date by virtue of his
having been such Holder; and such defaulted interest may be paid by the
Company, at its election in each case, as provided in clause (1) or clause (2)
below:
(1) The Company may elect to make payment of any defaulted interest to the
persons in whose names any such Securities (or their respective predecessor
Securities) are registered at the close of business on a special record date
for the payment of such defaulted interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Security of such
Series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in trust
for the benefit of the persons entitled to such defaulted interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for
the payment of such defaulted interest in respect of Securities of such
Series which shall be not more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and
at the expense of the Company, shall cause notice of the proposed payment of
such defaulted interest and the special record date thereof to be mailed,
first class postage prepaid, to each Registered Holder at his address as it
appears in the Security Register, not less than 10 days prior to such special
record date. Notice of the proposed payment of such defaulted interest and
the special record date therefor having been mailed as aforesaid, such
defaulted interest in respect of Securities of such Series shall be paid to
the person in whose names such Securities (or their respective predecessor
Securities) are registered on such special record date and such defaulted
interest shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any defaulted interest on the
Securities of any Series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of that
Series may be listed, and upon such notice as may be required by
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<PAGE> 27
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
SECTION 2.8 Registration, Transfer and Exchange. The Company will cause
to be kept 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
(herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company will provide for
the registration and the registration of the transfer of, the Registered
Securities. The Trustee is hereby appointed Security registrar for purposes of
registering, and registering transfers of, the Securities.
Upon surrender 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 Company shall execute and the Trustee shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
Series and of a like tenor and containing the same terms (other than the
principal amount thereof, if more than one Registered Security is executed,
authenticated and delivered with respect to any Registered Security so
presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Registered Securities shall equal the principal
amount of the Security presented in respect thereof) and conditions.
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
Company that shall be maintained for such purpose in accordance with Section
3.2 and upon payment, if the Company 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
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<PAGE> 28
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company 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 Company 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 Company 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 appertaining thereto, and upon payment, if the
Company 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 Company 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 Company.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Securities, other than
exchanges pursuant to Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security during a 15-day period
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prior to the day of mailing of the relevant notice of redemption or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not 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 Company
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 Company shall appoint a
successor Depositary with respect to such Registered Securities. If a
successor Depositary for such Registered Securities is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Global
Securities shall no longer be effective and the Company will execute, and the
Trustee, upon receipt of an Officers' 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 Company may at any time and in its sole discretion determine that the
Registered Securities of any Series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Company will execute, and the
Trustee, upon receipt of an Officers' 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.
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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 Company will execute,
and the Trustee, upon receipt of an Officers' 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 Company 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 Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge to the Holder,
(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
Company 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 agent of the Company 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.
Notwithstanding anything herein or in the terms of any Series of Securities
to the contrary, none of the Company, the Trustee or any agent of the Company
or the Trustee (any of which, other than the Company, shall rely on an
Officers' Certificate
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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 Company (such as, for example, the
inability of the Company 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 or defaced or be destroyed, lost or stolen,
then, in the absence of notice to the Company or the Trustee that the Security
has been acquired by a bona fide purchaser, the Company shall execute, and upon
the written request of any officer of the Company, the Trustee shall
authenticate and make available for delivery a new Security of the same Series
and of like tenor and principal amount and with the same terms and conditions,
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security or in lieu of and
substitution for the Security so destroyed, lost or stolen, in each case
together with Coupons corresponding to the Coupons appertaining to the
Securities so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Company and
to the Trustee and to any agent of the Company 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 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 Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee 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 Company 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); provided, however, that unless otherwise provided pursuant to
Section 2.3, the applicant for such payment shall furnish to the Company and to
the Trustee and any agent of the Company 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 Company and the Trustee and any agent of the Company or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
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Every substitute Security or Coupon of any Series issued pursuant to the
provisions of this Section by virtue of the fact that any Security or Coupon is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, 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 the law, the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated, defaced,
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, shall, if surrendered to the Company or any agent of the
Company or the Trustee, be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be cancelled by it; and no Securities or
Coupons shall be issued in lieu thereof, except as expressly permitted by any
of the provisions of this Indenture. The Company may at any time deliver to
the Trustee for cancellation any Securities or Coupons previously authenticated
hereunder which the Company has not issued and sold and all Securities or
Coupons so delivered shall be promptly cancelled by the Trustee. The Trustee
shall return cancelled Securities and Coupons held by it or provide a
certificate of destruction to the Company. If the Company 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 for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any Series, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Securities for such
Series (printed, lithographed, typewritten or otherwise reproduced, in each
case in form reasonably acceptable 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 Company with the reasonable concurrence of the Trustee.
Temporary Securities may contain such reference
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to any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Company 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 Company
shall execute and shall furnish definitive Securities of such Series and
thereupon temporary Securities of such Series may be surrendered in exchange
therefor without charge to the Holder at each office or agency to be maintained
by the Company for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Company for such
purpose as specified pursuant to Section 2.3, and the Trustee shall
authenticate and make available for delivery in exchange for such temporary
Securities of such Series an equal aggregate principal amount of definitive
Securities of the same Series of 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.
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 procedure pursuant to which
definitive or global Unregistered Securities of such Series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest. The Company covenants and
agrees for the benefit of each particular 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 in accordance with the terms of 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
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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 Company
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 as they appear on the
Security Register.
Notwithstanding the provisions of Section 2.3 and Section 2.7, unless
otherwise specified as contemplated by Section 2.3, payment of principal of and
any interest on any Security in definitive global form shall be made to the
Person or Persons specified therein.
Except as provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat a Person as the Holder of
such principal amount of Outstanding Securities represented by a definitive
global Security as shall be specified in a written statement of the Holder of
such definitive global Security.
SECTION 3.2 Offices for Payment, etc. So long as any of the Securities
remain outstanding, the Company will maintain the following for each Series:
an office or agency (a) where the Securities may be presented for payment, (b)
where the Registered Securities may be presented for registration of transfer
and for exchange as provided in this Indenture, and (c) where notices and
demands may be served upon the Company in respect of the Securities of any
Series, the Coupons appertaining thereto, or this Indenture. The Company 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 Company 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 Company. 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 Company
within the United States if such payment in Dollars at each agency maintained
by the Company outside the United States for payment on such Unregistered
Securities is illegal or effectively precluded by exchange controls or other
similar restrictions.
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The Company will give to the Trustee written notice of the location of any
such office or agency and of any change of location thereof. In case the
Company shall fail to so designate or maintain any such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office. Unless otherwise specified pursuant to Section 2.3,
the Trustee is hereby appointed Paying Agent.
SECTION 3.3 Paying Agents. Whenever the Company 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 Company 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, and upon the occurrence of an Event of Default and upon the
written request of the Trustee, pay over all such sums received by it to the
Trustee, and
(b) that it will give the Trustee notice of any failure by the Company (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.
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such Series, deposit in a timely manner 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 Company will promptly
notify the Trustee of any failure to take such action.
If the Company 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 Company will promptly notify the Trustee of any failure
to take such action.
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Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, the Company 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 Company 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 3.4 Written Statement to Trustee. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, a brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or accounting officer of
the Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of grace or
requirement of notice provided under the Indenture), and if the Company shall
not be in compliance, specifying all such defaults or non-compliance and the
nature and status thereof.
SECTION 3.5 Limitation Upon Liens. So long as any Securities of any
Series have been issued and remain outstanding, unless the terms of any Series
provide otherwise, the Company will not itself, and will not permit any
Consolidated Subsidiary to, issue, assume or guarantee any indebtedness for
money borrowed which in accordance with generally accepted accounting
principles would be reflected on the balance sheet of the Company or a
Consolidated Subsidiary as a liability on the date as of which Indebtedness is
determined (being hereinafter in this Section 3.5 and Section 3.6 called
"Indebtedness"), secured by a mortgage, pledge, security interest or other lien
or encumbrance (any mortgage, pledge, security interest or other lien or
encumbrance being hereinafter in this Section 3.5 and Section 3.6 called a
"Lien") upon or with respect to any Principal Property, or on any shares of
capital stock of any Consolidated Subsidiary that owns a Principal Property
(unless all obligations and indebtedness thereby secured are held by the
Company or a Consolidated Subsidary) without effectively providing that the
Securities shall be secured by such Lien equally and ratably with any and all
other obligations and indebtedness thereby secured, unless, after giving effect
thereto, the aggregate principal amount of all such Indebtedness secured by
such a Lien of the Company or a Consolidated Subsidiary then outstanding plus
all Attributable Debt of the Company and its Consolidated Subsidiaries in
respect of sale and leaseback transactions (as defined in Section 3.6) entered
into after the date of this Indenture (other than sale and leaseback
transactions permitted
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by Section 3.6) would not exceed an amount equal to 15% of Consolidated Net
Tangible Assets; provided, however, that nothing contained in this Section
shall prevent, restrict or apply to, and there shall be excluded in any
computation of secured Indebtedness under this Section, the following:
(a) Liens existing as of the date of the issuance of Securities of any
Series on any property or assets owned or leased by the Company or any
Consolidated Subsidiary;
(b) Liens on property or assets of, or on any shares of stock or
Indebtedness of, any corporation existing at the time such corporation
becomes a Consolidated Subsidiary and not created in contemplation of such
event;
(c) Liens on any property or assets or shares of stock or Indebtedness
existing at the time of acquisition thereof (including acquisition through
merger or consolidation) and not created in contemplation of such event or to
secure the payment of all or any part of the purchase price or construction
cost thereof or to secure any Indebtedness incurred prior to, at the time of
or within 180 days after the later of acquisition of such property or assets
or shares of stock or Indebtedness or the completion of any such construction
and the commencement of operation of such property, for the purpose of
financing all or any part of the purchase price or construction cost thereof;
(d) Liens on any property or assets to secure all or any part of the cost
of development, operation, construction, alteration, repair or improvement of
all or any part of such property or assets, or to secure Indebtedness
incurred prior to, at the time of or within 180 days after the completion of
such development, operation, construction, alteration, repair or improvement,
whichever is later, for the purpose of financing all or any part of such
cost;
(e) Liens in favor of, or which secure Indebtedness owing to the Company
or a Consolidated Subsidiary;
(f) Liens arising from the assignment of moneys due and to become due
under contracts between the Company or any Consolidated Subsidiary and the
United States of America, any State, Territory or possession thereof or any
agency, department, instrumentality or political subdivision of any thereof;
or Liens in favor of the United States of America, any State, Commonwealth,
Territory or possession thereof or any agency, department, instrumentality or
political subdivision of any thereof, to secure progress, advance or other
payments pursuant to any contract or provision of any statute, or pursuant to
the provisions of any contract not directly or indirectly in connection with
securing Indebtedness;
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(g) any deposit or pledge as security for the performance of any bid,
tender, contract, lease or undertaking not directly or indirectly in
connection with the securing of Indebtedness; any deposit or pledge with any
governmental agency required or permitted to qualify the Company or any
Consolidated Subsidiary to conduct business, to maintain self-insurance or to
obtain the benefits of any law pertaining to worker's compensation,
unemployment insurance, pensions, social security or similar matters, or to
obtain any stay or discharge in any legal or administrative proceedings;
deposits or pledges to obtain the release of mechanics', worker's,
repairmen's, materialmen's or warehousemen's liens on the release of property
in the possession of a common carrier; any security interest created in
connection with the sale, discount or guarantee of notes, chattel mortgages,
leases, accounts receivable, trade acceptances or other paper, or contingent
repurchase obligations, arising out of sales of merchandise in the ordinary
course of business; liens for taxes not yet due and payable or being
contested in good faith; or other deposits or pledges similar to those
referred to in this subparagraph (g);
(h) Liens arising by reason of any attachment, judgment, decree or order
of any court or other governmental authority, so long as any appropriate
legal proceedings which may have been initiated for review of such
attachment, judgment, decree or order shall not have been finally terminated
or so long as the period within which such proceedings may be initiated shall
not have expired;
(i) Liens created after the date of this Indenture on property leased to
or purchased by the Company or any Consolidated Subsidiary after that date
and securing, directly or indirectly, obligations issued by a State, a
Territory or a possession of the United States of America, or any political
subdivision of any of the foregoing, or the District of Columbia, to finance
the cost of acquisition or cost of construction of such property; and
(j) any extension, renewal, substitution or replacement (or successive
extensions, renewals, substitutions or replacements), as a whole or in part,
of any Lien referred to in subparagraphs (a) through (i) above or the
Indebtedness secured thereby; provided that (1) such extension, renewal,
substitution or replacement Lien shall be limited to all or any part of the
same property or assets, shares of stock or Indebtedness that secured the
Lien extended, renewed, substituted or replaced (plus improvements on such
property and any other property or assets not then constituting a Principal
Property) and (2) to the extent, if any, that the Indebtedness secured by
such Lien at such time is increased, the amount of such increase shall not be
excluded from Indebtedness under any computation under this Section.
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Debt created by the Company or any Consolidated Subsidiary shall not be
cumulated with a guarantee of the same Indebtedness by the Company or any other
Consolidated Subsidiary for the same financial obligation.
SECTION 3.6 Limitation on Sale and Leaseback Transactions. As long as any
Securities of a Series have been issued and are Outstanding, the Company will
not itself, and will not permit any Consolidated Subsidiary to, enter into any
arrangement after the date of this Indenture with any Person (not including the
Company or any Consolidated Subsidiary) providing for the leasing by the
Company or any such Consolidated Subsidiary of any Principal Property which was
or is owned by the Company or such Consolidated Subsidiary (except for
temporary leases for a term of not more than three years), which property has
been or is to be sold or transferred, more than 120 days after such Principal
Property has been owned by the Company or such Consolidated Subsidiary and
completion of construction and commencement of full operation thereof, to such
Person (herein referred to as a "sale and leaseback transaction") unless (a)
the net proceeds to the Company or such Consolidated Subsidiary from such sale
or transfer equal or exceed the fair value (as determined by the Board of
Directors of the Company) of the Principal Property so leased, (b) the Company
or such Consolidated Subsidiary could incur Indebtedness secured by a Lien on
the Principal Property to be leased pursuant to Section 3.5 in an amount equal
to the Attributable Debt with respect to such sale and leaseback transaction
without equally and ratably securing the Securities or (c) the Company, within
120 days after the effective date of any such sale and leaseback transaction,
applies an amount equal to the fair value (as determined by the Board of
Directors of the Company) of the property so sold and leased back at the time
of entering into such arrangement (as determined by the Company) to (x) the
prepayment or retirement of Funded Debt (including Securities of any Series
constituting Funded Debt) of the Company or (y) the acquisition of additional
real property for the Company or any Consolidated Subsidiary.
SECTION 3.7 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth
in Sections 3.5 or 3.6 with respect to the Securities of any Series if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities of such Series shall either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
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SECTION 3.8 Luxembourg Publications. In the event of the publication of
any notice pursuant to Section 8.2, 10.4 or 12.2, 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
regulations, as evidenced by an Officers' Certificate delivered to such party,
make a similar publication in Luxembourg.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company 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 reasonably request in writing,
within 30 days after receipt by the Company of any such request, such list to
be 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 contained in the most recent list
furnished to it as provided in Section 4.1 or maintained by the Trustee in its
capacity as Security registrar for such Series, if so acting. 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 of any Series (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
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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 with 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, 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 could 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 such 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.
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(c) Each and every Holder of Securities and Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of the Company 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 Company. The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents, and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, or if the Company 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, 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 Company 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 required by Sections 6.6 and 11.4, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents, and
reports required to be filed by the Company pursuant to 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.
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ARTICLE V
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 any 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) unless it is either
inapplicable to a particular Series or it is specifically deleted or modified
in or pursuant to the supplemental indenture or resolution of the Board of
Directors establishing such Series of Securities or in the form of Security for
such Series:
(a) default in the payment of any installment 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 of any of
the Securities of such Series as and when the same shall become due and
payable, either at Maturity, upon any redemption, by declaration or otherwise;
or
(c) default in the performance, or breach of any covenant or warranty of
the Company contained in the Securities of such Series or in this Indenture
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of a Series
of Securities other than that Series), 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 Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Outstanding
Securities of that Series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(d) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of
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the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of all or any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or of all or any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(f) any other Event of Default provided with respect to Securities of such
Series.
If an Event of Default occurs and is continuing with respect to the Securities
of any Series, then and in each and every such case, unless the principal of
all Securities of such Series shall have already become due and payable, either
the Trustee for such Series or the Holders of not less than 25% in aggregate
principal amount of the Securities of such Series then Outstanding hereunder,
by notice in writing to the Company (and to the Trustee if given by such
Holders), 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 the
Securities of such Series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable.
This provision, however, is subject to the condition that if at any time after
the 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 the Securities of such Series 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
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Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest, if any, upon all the Securities of
such Series and the principal of any and all Securities of such Series which
shall have become due otherwise than by such acceleration (with interest upon
such principal) and, to the extent that payment of such interest is enforceable
under applicable law, 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 to the date of
such payment or deposit) and in Dollars such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and counsel
and all other expenses and liabilities incurred, and all advances with interest
made, by the Trustee, its agents, attorneys and counsel and if any and all
defaults under this Indenture, other than the nonpayment of the principal of
Securities of such Series which shall have become due by such acceleration,
shall have been remedied, then and in every such case the Holders of a majority
in aggregate principal amount of the Securities of such Series then
Outstanding, by written notice to the Company and to the Trustee for the
Securities of such Series, may waive all defaults 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 the Original
Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May Prove Debt.
The Company covenants that (a) in case default shall be made in the payment
of any installment 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
or upon any redemption or by declaration or otherwise, then upon demand of the
Trustee for the Securities of such Series, the Company will pay to the Trustee
for the Securities of such Series 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 for principal of or interest, as the
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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, and all expenses
and liabilities incurred and all advances with interest made by, the Trustee
and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay the principal
of and interest on the Securities of any Series to the persons entitled
thereto, whether or not the principal of and interest on the Securities of such
Series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such Series, 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
Company or other obligor upon such Securities and collect in the manner
provided by law out of the property of the Company 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 Company 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 Company or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Company or other obligor under the Securities of any Series, or to the
creditors or property of the Company 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
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documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for reasonable compensation to, and all
expenses and liabilities incurred and all advances with interest made by, the
Trustee and each predecessor Trustee, and their respective agents, attorneys
and counsel, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the Company or
other obligor upon all Securities of any Series, or to the creditors or
property of the Company or such other obligor, and
(b) 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 for the Securities of such Series, and, in the event that such
Trustee shall consent to the making of payments directly to the
Securityholders, to pay to such Trustee such amounts as shall be sufficient to
cover reasonable compensation to, and all expenses and liabilities incurred
and all advances with interest made by, such Trustee, each predecessor Trustee
and their respective agents, attorneys and counsel and all other amounts due
to such Trustee or any predecessor Trustee pursuant to Section 6.7, 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 accept or adopt on behalf of any Securityholder
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.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities or Coupons appertaining to such Securities, may be
enforced by the Trustee for the Securities of such Series or Coupons without
the possession of any of the Securities of such Series or Coupons appertaining
to such Securities or the production thereof at 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 for the Securities of such Series
(and also any proceedings involving the
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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
for the Securities of such Series pursuant to this Article in respect of
the Securities of any Series shall be applied in the following order at the
date or dates fixed by such 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
moneys 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 moneys have been collected, including reasonable
compensation to, and all expenses and liabilities incurred and all advances
with interest made by, the Trustee and each predecessor Trustee and their
respective agents and attorneys and all other amounts due to the Trustee or
any predecessor Trustee pursuant to Section 6.7, except as a result of
Trustee's negligence or bad faith;
SECOND: To the payment of the amounts then due and unpaid for interest on
the Securities of such Series for which principal is not yet due and
payable in respect of which moneys have been collected, such payments to be
made ratably to the persons entitled thereto, without discrimination or
preference, according to the amounts then due and payable on such Securities
for interest;
THIRD: To the payment of the amounts then due and unpaid for principal of
and interest on the Securities of such Series for which principal is due
and payable in respect of which moneys have been collected, such payments to
be made ratably to the persons entitled thereto, without discrimination or
preference, according to the amounts then due and payable on such Securities
for principal and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee for the Securities of any Series or any Holder shall have
proceeded to enforce any right under this Indenture and such proceedings shall
have been
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discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to the determination in any such proceeding, the Company, the Trustee
and the Holders shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the Company, the
Trustee and the Securityholders shall continue as though no such proceedings
had been taken.
SECTION 5.5 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 an Event of Default and of the continuance thereof,
as hereinbefore provided, and unless also the Holders of not less than 25% 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
during such 60 day period by Holders of a majority in principal amount of the
Securities of such Series then Outstanding; 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 of a Security or Coupon 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.
SECTION 5.6 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any 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 (subject to Section 2.7) interest on such
Security or Coupon at the respective rates, in the respective amount on or
after the respective due dates expressed in such Security or Coupon, and to
institute suit for the enforcement of
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any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 2.9 and Section 5.5, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders 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 Securityholder 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 5.5, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
the Securityholders.
SECTION 5.8 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected (with
each Series treated 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 the Trustee,
being advised by counsel, shall have the right to decline to follow any such
direction if 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.
SECTION 5.9 Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Securities of any Series
at the time Outstanding may on behalf of the Holders of all the Securities of
such Series waive any past default hereunder or its consequences, except a
default in the payment of the principal of or interest on any of the Securities
of such Series.
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
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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 5.10 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 and expenses, 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 Securityholder or
group of Securityholders of any Series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such Series, or to any suit
instituted by any Securityholder 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.
SECTION 5.11 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.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing with respect to
the Securities of any Series, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect to
the Securities of any Series:
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(i) the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming on their face to the requirements of this Indenture.
However, in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether or
not they conform on their face to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(i) this paragraph (c) does not limit the effect of paragraph (b) of this
Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
pursuant to Section 5.8.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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SECTION 6.2 Rights of Trustee. Subject to Section 6.1 and the provisions of
the Trust Indenture Act:
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel.
(c) Subject to the provisions of Section 6.1(c), the Trustee shall not be
liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
(d) The Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel.
(e) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.3 Individual Rights of Trustee. The Trustee in its individual or
any other capacity may become the owner or pledgee of Securities or
Coupons and may otherwise deal with the Company or its affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, registrar or
co-registrar may do the same with like rights. However, the Trustee must
comply with Sections 6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities, it
shall not be responsible for any statement in the registration statement for
the Securities under the Securities Act of 1933 or in the
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Indenture or the Securities (other than its certificate of authentication).
SECTION 6.5 Notice of Defaults. If a default occurs and is continuing with
respect to any Securities of any Series and if it is known to the Trustee
through oral or written notice to a corporate trust officer, the Trustee shall
give to each Securityholder of such Series notice of the default within 90 days
after such default occurs. Except in the case of a default described in
Section 5.1(a) or (b), the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Securityholders of such Series.
SECTION 6.6 Reports by Trustee to Holders. Within 60 days after each
June 1 beginning with the June 1 following the date of this Indenture, the
Trustee shall mail to each Securityholder of any Series and each other person
specified in TIA Section 313(c) a brief report dated as of such June 1 that
complies with TIA Section 313(a) to the extent required thereby. The Trustee
also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders of any
Series shall be filed with the Commission and each securities exchange on
which the Securities of any Series are listed. The Company agrees promptly to
notify the Trustee whenever the Securities of any Series become listed on any
securities exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time in Dollars such compensation
as shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances with interest thereon incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses, advances with interest thereon and
disbursements of its agents and counsel), except to the extent any such
expense, disbursement or advance may be attributable to its negligence or bad
faith; and
(c) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection with
the acceptance or administration of this trust or the performance of its
duties hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any
of its
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powers or duties hereunder (including the reasonable compensation and the
expenses, advances with interest thereon and disbursements of its agents
and counsel), except to the extent that any such loss, liability or expense
may be attributable to its negligence or bad faith.
As security for the performance of the obligations of the Company in this
Section 6.7, the Trustee shall have a lien prior to the Securities on
all money or property held or collected by the Trustee, except that held in
trust to pay the principal of or interest, if any, on particular Securities.
"Trustee" for purpose of this Section 6.7 includes any predecessor Trustee,
provided that the negligence or bad faith of any Trustee shall not be
attributable to any other Trustee.
The Company's payment obligations pursuant to this Section 6.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a default specified in Sections 5.1(d) and 5.1(e), such
expenses are intended to constitute expenses of administration under bankruptcy
law.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any time
with respect to Securities of one or more Series by so notifying the Company;
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 6.8. The Holders
of a majority in aggregate principal amount of the Outstanding Securities of
any Series may remove the Trustee with respect to such Series at the time
outstanding by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of one or more
Series, the Company shall promptly appoint, by resolution of its Board of
Directors, a successor Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture with respect to the Securities of such Series. The successor
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Trustee shall mail a notice of its succession to Securityholders so affected.
The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in
Section 6.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate principal amount of the Securities at
the time Outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and Section 310(a)(5).
The Trustee shall have a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA Section 310(b).
SECTION 6.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
(a) 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
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sufficient for any purpose of this Indenture and (subject to Sections 6.1
and 6.2) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Article.
(b) In the case of Registered Securities, the ownership of such Securities
shall be proved by the Security Register.
SECTION 7.2 Proof of Execution of Instruments. 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 accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
SECTION 7.3 Holders to Be Treated as Owners. The Company, the Trustee and
any agent of the Company 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 Section 2.7) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any agent of the Company
or the Trustee shall be affected by any notice to the contrary. The Company,
the Trustee and any agent of the Company 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 Company, the
Trustee, nor any agent of the Company 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 Company 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 Company 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 Company 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
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satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Securities.
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, 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 Company, the Trustee and the
Holders of all the Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders. The
Company, when authorized by a resolution of its Board of Directors, and the
Trustee for the Securities of any and all Series 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 as in force at the date of
the execution thereof), in form satisfactory to such Trustee, 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 Company, or
successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company pursuant to Article
Nine;
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(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
Securities of any or all Series or of Coupons and, if such additional
covenants are to be for the benefit of less than all the Series of Securities
or Coupons stating that such covenants are being added solely for the benefit
of such Series;
(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 such other provisions in regard to matters
or questions arising under this Indenture or under any supplemental indenture
as the Board of Directors may deem necessary or desirable and which shall not
materially and adversely affect the interests of the Holders of the Securities
or Coupons;
(e) to establish the form or terms of Securities of any Series or of the
Coupons appertaining to such Securities as permitted by Sections 2.1 and 2.3;
(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 the one Trustee, pursuant to the requirements of
Section 6.8; or
(g) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Outstanding Security of any Series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision.
The Trustee is hereby authorized to join with the Company 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
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aggregate principal amount of the Securities at the time Outstanding of
each Series affected by such supplemental indenture (voting as one class), the
Company, when authorized by a resolution of its Board of Directors, and the
Trustee for such Series of Securities 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 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, however, that no such supplemental indenture shall
(a) extend the Stated 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 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 the 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 payment thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder 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 Company, accompanied by a copy of a resolution of
the Board of Directors certified by the secretary or an assistant
secretary of the Company authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee for such Series of Securities
of evidence of the consent of Securityholders as aforesaid and other documents,
if any, required by Section 7.1, the Trustee for such Series of Securities
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects such Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case such Trustee may in
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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 Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Company 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, 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 3.8, 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
Company 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. Every supplemental indenture
executed pursuant to this Article Eight shall conform to the requirements of
the Trust Indenture Act. 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 Company 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, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with
the applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any Series authenticated
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and delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Eight may bear, upon the direction of the Company, a
notation in form satisfactory to the Trustee for the Securities of such Series
as to any matter provided for by such supplemental indenture. If the Company
or the Trustee shall so determine, new Securities of any Series so modified as
to conform, in the opinion of the Trustee and the Company, to any modification
of this Indenture contained in any such supplemental indenture may be prepared
by the Company, authenticated by the Trustee and delivered in exchange for the
Securities of such Series then Outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc., on Certain Terms. The Company
may sell, convey or lease all or substantially all of its assets to any
Person, or consolidate or merge with or into, any other corporation, provided
that in any such case, (i) either the Company shall be the continuing
corporation, or the successor corporation or person which acquires by sale or
conveyance all or substantially all of the assets of the Company, shall be a
corporation or other entity organized and validly existing under the laws of
the United States of America or any State thereof or the District of Columbia
and shall expressly assume the due and punctual payment of the principal of and
interest on all the Securities 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 Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation or entity, and (ii) immediately after such merger or
consolidation, or such sale, conveyance or lease, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, 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 Company 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
Company and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall make available for delivery any Securities, together with any Coupons
appertaining thereto, which previously shall have been signed and delivered by
the
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officers of the Company 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 conveyance by way
of lease) the Company (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 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 X
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Company 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 Company 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 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
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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 Company shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds
the entire amount (other than moneys repaid by the Trustee or any Paying Agent
to the Company in accordance with Section 10.4) or Government Obligations
maturing as to principal and interest in such amounts and at such times as will
ensure the availability of cash 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 Company shall also pay or cause to
be paid all other sums payable hereunder by the Company 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, and the Company's right of optional
redemption (provided the Company provides sufficient funds to effect such
optional redemption), (ii) substitution of mutilated, defaced, destroyed, lost
or stolen Securities or Coupons, (iii) rights of Holders 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, obligations
and immunities of the Trustee hereunder, (v) the rights of the Securityholders
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, subject to Section 10.5, the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, 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 Company 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 and the Securities of such Series.
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(B) (i) In addition to the provisions of Section 10.1(A), the Company
may, at its option by or pursuant to, or otherwise in a manner or by such
Persons as may be authorized pursuant to, one or more resolutions duly adopted
by the Board of Directors, at any time with respect to the Securities of any
Series, elect to have defeasance under subsection (ii) or covenant defeasance
under subsection (iii) of this Section 10.1(B) be applied to the Outstanding
Securities of such Series provided that provision therefor is made for such
application pursuant to Section 2.3 and the applicable conditions thereto as
set forth in this Section 10.1(B) have been satisfied.
(ii) Upon the Company's exercise of the option referenced in Section
10.1(B)(i) applicable to this subsection, the Company may terminate its
obligations under the Outstanding Securities of any Series and this Indenture
with respect to such Series on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such Series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense and request of the Company, shall execute proper instruments
acknowledging the same), except for the following: (1) the rights of Holders
of Outstanding Securities of such Series to receive payments in respect of the
principal of and interest on such Securities when such payments are due, (2)
the Company's obligations with respect to such Securities under Sections 2.8,
2.9, 2.11, 3.2, 6.7, 10.4 and 10.5, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and (4) this Section 10.1(B).
(iii) Upon the Company's exercise of the option referenced in Section
10.1(B)(i) applicable to this subsection, the Company shall be released from
its obligations under Sections 3.5 and 3.6 with respect to the Outstanding
Securities of such Series on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
such Series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document (including, without limitation, the
form of Securities of such Series), but the remainder of this Indenture and the
rights of each Holder of such Securities shall be unaffected thereby.
(iv) The following shall be the conditions to the application of Section
10.1(B)(ii) or (iii) to the Outstanding Securities of such Series:
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(a) The Company shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.10 who shall agree to comply with the
provisions of this Section and Section 10.1(B) applicable to it) under the
terms of an irrevocable trust agreement, as trust funds in trust solely for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Securities of such Series, (i) cash in the currency or currency unit
required, or (ii) Government Obligations maturing as to principal and
interest in such amounts (payable in the currency in which the Securities of
such Series are payable) and at such times as are sufficient, to pay the
principal of and interest on the Outstanding Securities of such Series to
Maturity or redemption, as the case may be, or (iii) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (x) the
principal of and each installment of principal of and interest, if any, on
the Outstanding Securities of such Series and Coupons appertaining thereto
on the Stated Maturity of such principal or installment of principal or
interest, if any, and (y) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such Series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities. Such irrevocable trust agreement
shall include, among other things, (i) provision for the payments referenced
in clauses (x) and (y) of the immediately preceding sentence, (ii) the
payment of the reasonable expenses of the Trustee incurred or to be incurred
in connection with carrying out such trust provisions, (iii) rights of
registration, transfer, substitution and exchange of Securities of such
Series in accordance with the terms stated in this Indenture and
(iv) continuation of the rights and obligations and immunities of the
Trustee as against the Holders of Securities of such Series as stated in
this Indenture.
(b) No Event of Default or event which with notice or lapse of time or
both would constitute an Event of Default with respect to the Securities of
such Series shall have occurred and be
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continuing on the date of such deposit or shall occur as a result of such
deposit or, insofar as Sections 5.1(d) and 5.1(e) are concerned, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(c) Such deposit, defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is a
party or by which it is bound.
(d) The Company shall have delivered to the Trustee an Opinion of Counsel
of recognized national standing to the effect that Securityholders of
such Series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and discharge and will be subject to
Federal income tax on the same amounts and in the same manner and at the
same time as would have been the case if such deposit and defeasance or
covenant defeasance, as the case may be, had not occurred.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the deposit and defeasance or
covenant defeasance, as the case may be, contemplated by this Section
10.1(B) have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the
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 Company
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 (other than
the Company) under the provisions of this Indenture with respect to such Series
of Securities shall, upon demand of the Company, be paid to the Trustee and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
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SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying
Agent. Any moneys deposited with or paid to the Trustee or any Paying
Agent (including the Company acting as its own 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 Company, promptly be repaid to the Company by
the Trustee for such Series or such Paying Agent (except that with respect to
any amounts then held by the Company in trust as its own Paying Agent no such
request need be given and at such time the Company shall be discharged from its
duty to hold such moneys in trust as 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 Company 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 Company, 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
Company 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 3.8, 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 Company. Anything in this Article X to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the written request of the Company any money or Government
Obligations held by it as provided in Section 10.1(B)(iv) which, in the opinion
of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect such
defeasance or covenant defeasance, as the case may be, in accordance with the
provisions of this Indenture.
SECTION 10.5 Reinstatement of Company's Obligations. If the Trustee is
unable to apply any funds or Government Obligations in accordance with Section
10.1 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture
and the Securities of any Series for which such application is prohibited
shall be revived and reinstated as
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if no deposit had occurred pursuant to Section 10.1 until such time as the
Trustee is permitted to apply all such funds or Government Obligations in
accordance with Section 10.1; provided, however, that if the Company has made
any payment of interest on or principal of any of such Securities because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Securityholders of such Securities to receive such payment from
the funds or Government Obligations held by the Trustee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security,
in any Coupon 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 Company or of any successor,
either directly or through the Company or any successor, 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 Securityholders. Nothing in this Indenture or in the Securities or 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, any
Paying Agent and their successors hereunder and the Holders of the Securities
or Coupons 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 and of the Holders of the Securities or Coupons.
SECTION 11.3 Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee and
Securityholders. 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 Company may be given or
served by being deposited postage prepaid, first-class mail (except as
otherwise specifically
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provided herein) addressed (until another address of the Company is
filed by the Company with the Trustee) to Dean Foods Company, 3600 North River
Road, Franklin Park, Illinois 60131, Attention: General Counsel. Any notice,
direction, request or demand by the Company or any Securityholder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of Registered
Securities of any event such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed by first-class
mail, postage prepaid to such Holders as their names and addresses appear in
the Security Register within the time prescribed. 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 any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders, and any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Company and
Securityholders 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
reasonably acceptable 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 Company to
the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or 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 and the
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definitions herein relating thereto, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with and (d) a
statement as to whether or not, in the opinion of such person, such condition
or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company 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 or information with respect to which
is in the possession of the Company, upon the certificate, statement or opinion
of or representations by an officer or officers of the Company, unless such
counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, 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. Unless
otherwise specified in a Security, 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.
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SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act. 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 by the Trust Indenture Act, such required
provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture and each Security
and any Coupon appertaining thereto 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.
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; Gender. The Article and Section
headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof. The use of the masculine, feminine or
neuter gender herein shall not limit in any way the applicability of any term
or provision hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU. Unless
otherwise specified in an Officers' 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
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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 Company
and all Holders.
ARTICLE XII
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 final 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 Company to redeem any Securities shall be
evidenced by, or pursuant to, a resolution of the Board of Directors. Notice
of redemption to the Holders of Registered Securities of any Series required to
be redeemed or to be redeemed as a whole or in part at the option of the
Company shall be given by giving notice of such redemption as provided in
Section 11.4, 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. 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, 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 at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Company, the Trustee
shall make such information available to the Company 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
3.8, 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
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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 date fixed
for redemption, the "CUSIP" number or numbers for such Securities, 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. If less than all of the
Securities of any Series are to be redeemed, the notice of redemption shall
specify the numbers of the Securities of such Series to be redeemed. In case
any Security of a Series is to be redeemed in part, 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 Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. If such
notice is to be given by the Trustee, the Company shall provide notice of such
redemption to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee). If
such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at least 2 days
prior to the date such notice is given to such Holders, but in any event at
least 15 days prior to the date fixed for redemption (unless a shorter notice
shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not later than the
redemption date specified in the notice of redemption given as provided in
this Section, the Company will have on deposit with the Trustee or with one or
more Paying Agents (or, if the Company is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 3.3) in funds
available on such date 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 Company, the Company will deliver to
the Trustee at least 60 days prior to the date fixed for redemption an
Officers' Certificate stating the aggregate principal amount of Securities to
be redeemed.
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If less than all the Securities of a Series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part and the Trustee
shall promptly notify the Company in writing of the Securities of such Series
selected for redemption and, in the case of any Securities of such Series
selected for partial redemption, the principal amount thereof to be redeemed.
However, if less than all the Securities of any Series with differing issue
dates, interest rates and stated maturities are to be redeemed, the Company in
its sole discretion shall select the particular Securities to be redeemed and
shall notify the Trustee in writing thereof at least 45 days prior to the
relevant redemption date. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such Series or
any multiple thereof. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any Series 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 Company 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 6.1 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
Company 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 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 Section 2.7
hereof.
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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.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities, 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 a written statement signed by an authorized officer of the Company
and delivered to the Trustee at least 30 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 Company 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 Company.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of 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
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 Company 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 Company or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company 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 Company 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.
67
<PAGE> 77
On or before the sixtieth day next preceding each sinking fund payment date
for any Series of Securities, the Company will deliver to the Trustee a
written statement (which need not contain the statements required by Section
11.5) signed by an authorized officer of the Company (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment of cash
(except as otherwise specified pursuant to Section 2.3 for the Securities of
such Series), and the portion to be satisfied by delivery or credit of
Securities of such Series, (b) stating that none of the Securities of such
Series for which credit is sought 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, (d) stating whether or not the Company 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
Company intends to pay on or before the next succeeding sinking fund payment
date and (e) specifying such sinking fund payment date. Any Securities of such
Series to be credited and required to be delivered to the Trustee in order for
the Company 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 written statement. Such
written statement shall be irrevocable and upon its receipt by the Trustee the
Company 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 Company, on or before any such sixtieth day,
to deliver such written statement 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 Company (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 Company 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
$100,000 (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 Company 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 $100,000 (or the equivalent thereof in any Foreign Currency or
68
<PAGE> 78
ECU) or less and the Company makes no such request then it shall be
carried over until a sum in excess of $100,000 (or the equivalent thereof in
any Foreign Currency or ECU), is available. The Trustee shall select, in the
manner provided in Section 12.2 and giving effect to any exclusions required
pursuant to Section 12.4, 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 possible, and shall (if requested in writing by the
Company) inform the Company of the serial numbers of the Securities of such
Series (or portions thereof) so selected. The Trustee, in the name and at the
expense of the Company (or the Company, if it shall so notify 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 at the option of the Company. 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.
Unless otherwise specified pursuant to Section 2.3, not later than the
sinking fund payment date, the Company shall have paid to the Trustee in cash
or shall otherwise provide in funds available on such date for the payment of
all principal and interest accrued to the date fixed for redemption on
Securities to be redeemed on such 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 or publish 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 or publication 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 Company 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 5.9 or the default cured
on or before the sixtieth 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.
69
<PAGE> 79
SECTION 12.6 Repayment at the Option of the Holders. Securities of any
Series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with the terms of the Securities
of such Series.
The repayment of any principal amount of Securities pursuant to such option
of the Holder to require repayment of Securities before their Stated
Maturity, for purposes of Section 10.1, shall not operate as a payment,
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Company, at its option, shall deliver or surrender the
same to the Trustee with a directive that such Securities be cancelled.
* * * * *
70
<PAGE> 80
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereto affixed and
attested, all as of the day and year first above written.
DEAN FOODS COMPANY
By: __________________________
Name:__________________________
Title:_________________________
ATTEST:
By:________________________
Name:______________________
Title:_____________________
[CORPORATE SEAL]
BANK OF AMERICA ILLINOIS,
as Trustee
By: __________________________
Name:__________________________
Title:_________________________
ATTEST:
By:_______________________
Name:_____________________
Title:____________________
[CORPORATE SEAL]
71
<PAGE> 1
EXHIBIT 4.2
[FORM OF FACE OF SENIOR DEBT SECURITY]
$
NO. CUSIP
DEAN FOODS COMPANY
__________% [ ] Due _______________
Dean Foods Company, a Delaware corporation (herein called the "Issuer",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _______________ or
registered assigns, the principal sum of ___________ United States Dollars on
_______________, and to pay interest, semiannually on ____________ and
_______________ of each year, commencing _______________, on said principal
sum, at the rate per annum specified in the title of this [ ], on a
semiannual bond equivalent basis using a 360-day year composed of twelve 30-day
months from the _______________ or the ___________, as the case may be, next
preceding the date of this [ ] to which interest has been paid, unless
the date hereof is a date to which interest has been paid, in which case from
the date of this [ ], or unless no interest has been paid on this
[ ], in which case from ______________, _____________, until payment of said
principal sum has been made or duly provided for. Payments of such principal
and interest shall be made at the office or agency of the Issuer in
_____________, which, subject to the right of the Issuer to vary or terminate
the appointment of such agency, shall initially be at the principal office of
___________ [, and subject to any laws or regulations applicable thereto in the
country of any such agency and subject to the right of the Issuer to vary or
terminate the appointment of any such agency or to appoint additional and other
such agencies, at the main offices of _________ in _________]; provided, that
payment of interest may be made at the option of the Issuer by check mailed to
the address of the person entitled thereto as such address shall appear on the
Security Register. Notwithstanding the foregoing, if the date hereof is after
the ____ day of __________ or ____________, as the case may be, and before the
following __________ or ________, this [ ] shall bear interest from such
_________ or ___________; provided, that if the Issuer shall default in the
payment of interest due on such ______________ or ____________, then this
[__________] shall bear interest from the next preceding ________ or
____________, to which interest has been paid or, if no interest has been paid
on this [ ], from ___________. The interest so payable on any
_____________ or _____________, will, subject to certain exceptions provided in
the Indenture referred to on the reverse hereof, be paid to the person in whose
name this [is registered at the close of business on the ____________ or
____________, as the case may be, next preceding such _____________ or
_________________. Reference is made to the further provisions of this
[___________] 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.
<PAGE> 2
This [ ] shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, DEAN FOODS COMPANY 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.
DEAN FOODS COMPANY
By:___________________________
ATTEST:
______________________________
[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.
Dated: Bank of America Illinois,
as Trustee
By:___________________________
Authorized Signatory
or
Bank of America Illinois,
as Trustee
By:___________________________,
as Authentication Agent
By:___________________________
Authorized Signatory
<PAGE> 3
[FORM OF REVERSE OF DEBT SECURITY]
DEAN FOODS COMPANY
_______% [ ] DUE ___________
This [ ] 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 January 15, 1995 (herein called
the "Indenture"), duly executed and delivered by the Issuer to Bank of America
Illinois, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), 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 and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more Series, which different Series may be
issued in various aggregate principal amounts, may bear interest at different
rates, which may be fixed or variable, 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 provided in the Indenture. This
[ ] is one of a Series designated as the ____% [ ] Due ___________ of
the Issuer, limited in aggregate principal amount to ___________.
In case an Event of Default with respect to the ____% [_______] Due
___________ 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 a majority of the aggregate principal amount
of the Securities at the time Outstanding of all Series to be affected (treated
as one class), evidenced as provided in the Indenture, 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 Stated 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 interest thereon, or reduce any amount payable upon redemption
thereof, or impair or affect the right of any Holder to institute suit for the
payment thereof or, if the Securities provide therefor, any right of repayment
at the option of the Securityholder, without the consent of the Holder of each
Security so affected, or (ii) reduce the aforesaid percentage of Securities of
any Series, 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
<PAGE> 4
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 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 [ ] (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all future Holders and
owners of this [ ] and any [ ] which may be issued in exchange
or substitution herefor, irrespective of whether or not any notation thereof is
made upon this [ ] or such other [ ].
No reference herein to the Indenture, and no provision of this [ ]
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, if
any)] and interest on this [ ] in the manner, at the respective times, at
the rate, and in the coin or currency herein prescribed.
The [ ] are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. As provided in
the Indenture, and subject to certain limitations set forth therein, [ ]
in registered form are exchangeable for one or more new Securities of this
Series and of like tenor, for the same aggregate principal amount and of
authorized denominations, as requested by the Holder surrendering the same at
the agency of the Issuer in ________ [or ____________]. No service charge
shall be made for any such exchange, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
[The [ ] may be redeemed at the option of the Issuer as a whole,
or from time to time in part, on any date after ____ and prior to maturity,
upon mailing a notice of such redemption not less than 15 nor more than 60 days
prior to the date fixed for redemption to the Holders of [ ] at their
last registered addresses, all as further provided in the Indenture, at the
following redemption prices (expressed in percentages of the principal amount)
together in each case with accrued interest to the date fixed for redemption:
If redeemed during the twelve-month period beginning [_________]:
<TABLE>
<CAPTION>
Year Percentage Year Percentage]
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
[The [____________________] are also subject to redemption, through the
operation of the sinking fund as herein provided on _____________ and on each
___________ thereafter to and including _____________ on notice as set forth
above and at 100% of the principal amount thereof (the sinking fund redemption
price), together with accrued interest to the date fixed for redemption.]
[As and for a sinking fund for the retirement of the [___________] and so
long as any of the [____________] remain outstanding and unpaid, the Issuer
will pay to the Trustee in cash (subject to the right to deliver certain
[___________________] in credit therefor as provided in the Indenture), on or
before ____________ and on or before _______________ in each year thereafter to
and including __________________ an amount sufficient to redeem $________
principal amount of the [___________________] (or such lesser
<PAGE> 5
amount equal to the principal amount then Outstanding) at the sinking fund
redemption price.]
[At its option the Issuer may, in cash, pay into the sinking fund for the
retirement of [__________________], except as provided in the Indenture, on or
before ____________ and on or before ________________ in each year thereafter
to and including ________________, an amount sufficient to redeem an additional
principal amount of [______________________] up to but not to exceed
$____________ at the sinking fund redemption price. To the extent that the
right to such optional sinking fund payment is not exercised in any year, it
shall not be cumulative or carried forward to any subsequent year.]
Upon due presentment for registration of transfer of this [ ] at
the office or agency of the Issuer in ____________ [or __________________], a
new [ ] or [ ] of this Series 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 agent of the Issuer or the Trustee may deem
and treat the registered Holder hereof as the absolute owner of this
[ ] (whether or not this [ ] 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
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 this
[ ], 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.
The Indenture with respect to any Series will be discharged and cancelled
except for certain Sections thereof, subject to the terms of the Indenture,
upon the payment of all the Securities of such Series or upon the irrevocable
deposit with the Trustee of cash or Government Obligations (or a combination
thereof) sufficient for such payment in accordance with Article Ten of the
Indenture.
The Indenture and this [________________] shall be deemed to be contracts
made under the laws of the State of New York, and for all purposes shall be
governed by, and construed in accordance with, the laws of such State.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
<PAGE> 6
------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number of Assignee
[_______________________________________________________________] [Please Print
or Typewrite Name and Address of Assignee]
the within [ ] and hereby does irrevocably constitute and
appoint_______________________________________________ Attorney to transfer
said [ ] on the books of the within-mentioned Company, with full power of
substitution in the premises.
Dated: ________________ ____________________________________
*_____________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
[ ] in every particular, without
alteration or enlargement or any change
whatever.
OPTION TO ELECT REPAYMENT
The undersigned hereby requests and instructs the Company to repay this
[ ] (or portion thereof specified below) pursuant to its terms at a price
equal to the principal amount thereof, together with interest accrued to the
date of repayment, to the undersigned at:
_________________________________________________________________. (Please
Print or Typewrite Name and Address of the Undersigned)
For this [ ] to be repaid the Company must receive, at the office
of the Trustee, Bank of America Illinois, or at such other place or places of
which the Company shall from time to time notify the Holder of this [ ],
during the period from and including [ ] to and including the
close of business on [ ] (or if [ ] is not a
Business Day, the immediately preceding Business Day), (i) this [ ] with
this "Option to Elect Repayment" form duly completed, or (ii) a communication
in the form specified above in this [ ]. The exercise of this "Option to
Elect Repayment" is irrevocable.
If less than the entire principal amount of this [ ] is to be
repaid, specify the portion thereof (which shall be in increments of $1,000)
which the Holder elects to have repaid: $_________; and specify the
denomination or denominations (which shall be in increments of $1,000) of the
[ ] to be issued to the Holder for the portion of this [ ] not being
- -------------------------
*Your signatures must be guaranteed by a member of the Medallion System.
<PAGE> 7
repaid (in the absence of any such specification, one such [ ] will be
issued for the portion not being repaid): $_____________.
Dated: _____________________ ______________________________
*_________________________________
Note: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of this
[ ] in every particular without
alteration or enlargement.
Holder's Tax I.D. Number: _________
- -------------------------
*Your signatures must be guaranteed by a member of the Medallion System.
<PAGE> 1
EXHIBIT 4.3
DEAN FOODS COMPANY
AND
________________________,
Trustee
Subordinated Debt Securities
INDENTURE
Dated as of January 15, 1995
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.1 Certain Terms Defined 1
Authorized Newspaper 2
Bankruptcy Code 2
Board of Directors 2
Business Day 2
Commission 2
Company 2
Company Notice 3
Conversion Agent 3
Corporate Trust Office 3
Coupon 3
Defaulted Interest 3
Defeasance 3
Depositary 3
Depositary Security 3
Dollar 3
ECU 4
Event of Default 4
Foreign Currency 4
Government Obligations 4
Holder 4
Holder of Securities 4
Registered Holder 4
Securityholder 4
Indenture 4
Market Exchange Rate 4
Maturity 4
Officers' Certificate 4
Opinion of Counsel 5
original issue date 5
Original Issue Discount Security 5
Outstanding 5
Paying Agent 6
Persons 6
Person 6
Place of Payment 6
Principal 6
Record Date 6
Registered Global Security 6
Registered Security 6
Responsible Officer 6
Security 7
Securities 7
Security Register 7
Senior Indebtedness 7
Series 7
Series of Securities 7
Stated Maturity 7
<PAGE> 3
Trust Indenture Act 7
TIA 7
Trustee 7
United States of America 7
Unregistered Security 8
U.S. Person 8
Vice President 8
ARTICLE II SECURITIES 8
SECTION 2.1 Forms Generally 8
SECTION 2.2 Form of Trustee's Certificate
of Authentication 8
SECTION 2.3 Amount Unlimited; Issuable in
Series 9
SECTION 2.4 Authentication and Delivery
of Securities 12
SECTION 2.5 Execution of Securities 14
SECTION 2.6 Certificate of Authentication 15
SECTION 2.7 Denomination and Date of
Securities; Payments of Interest 15
SECTION 2.8 Registration, Transfer and
Exchange 17
SECTION 2.9 Mutilated, Defaced, Destroyed,
Lost and Stolen Securities 22
SECTION 2.10 Cancellation of Securities,
Destruction Thereof 23
SECTION 2.11 Temporary Securities 23
ARTICLE III COVENANTS OF THE COMPANY 25
SECTION 3.1 Payment of Principal and Interest 25
SECTION 3.2 Offices for Payment, etc. 25
SECTION 3.3 Paying Agents 26
SECTION 3.4 Written Statement to Trustee 27
SECTION 3.5 Luxembourg Publications 28
ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE 28
SECTION 4.1 Company to Furnish Trustee
Information as to Names and
Addresses of Securityholders 28
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists 28
SECTION 4.3 Reports by the Company 30
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT 31
SECTION 5.1 Event of Default Defined;
Acceleration of Maturity;
Waiver of Default 31
SECTION 5.2 Collection of Indebtedness By
Trustee; Trustee May Prove Debt 34
SECTION 5.3 Application of Proceeds 36
SECTION 5.4 Restoration of Rights on
<PAGE> 4
Abandonment of Proceedings 37
SECTION 5.5 Limitations on Suits by
Securityholders 38
SECTION 5.6 Unconditional Right of Security-holders
to Institute Certain Suits 38
SECTION 5.7 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default 39
SECTION 5.8 Control by Securityholders 39
SECTION 5.9 Waiver of Past Defaults 39
SECTION 5.10 Right of Court to Require
Filing of Undertaking to Pay Costs 40
SECTION 5.11 Suits for Enforcement 40
ARTICLE VI CONCERNING THE TRUSTEE 40
SECTION 6.1 Duties of Trustee 40
SECTION 6.2 Rights of Trustee 42
SECTION 6.3 Individual Rights of Trustee 42
SECTION 6.4 Trustee's Disclaimer 43
SECTION 6.5 Notice of Defaults 43
SECTION 6.6 Reports by Trustee to Holders 43
SECTION 6.7 Compensation and Indemnity 43
SECTION 6.8 Replacement of Trustee 44
SECTION 6.9 Successor Trustee by Merger 45
SECTION 6.10 Eligibility; Disqualification 45
SECTION 6.11 Preferential Collection of Claims
Against Company 46
ARTICLE VII CONCERNING THE SECURITYHOLDERS 46
SECTION 7.1 Evidence of Action Taken by Securityholders 46
SECTION 7.2 Proof of Execution of Instruments 46
SECTION 7.3 Holders to Be Treated as Owners 46
SECTION 7.4 Securities Owned by Company Deemed
Not Outstanding 47
SECTION 7.5 Right of Revocation of Action
Taken 47
ARTICLE VIII SUPPLEMENTAL INDENTURES 48
SECTION 8.1 Supplemental Indentures Without
Consent of Securityholders 48
SECTION 8.2 Supplemental Indentures With
Consent of Securityholders 49
SECTION 8.3 Effect of Supplemental Indenture 51
SECTION 8.4 Documents to Be Given to Trustee 51
SECTION 8.5 Notation on Securities in
Respect of Supplemental Indentures 52
SECTION 8.6 Subordination Unimpaired 52
<PAGE> 5
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE 52
SECTION 9.1 Company May Consolidate, etc., on
Certain Terms 52
SECTION 9.2 Successor Corporation Substituted 52
SECTION 9.3 Opinion of Counsel to Trustee 53
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS 54
SECTION 10.1 Satisfaction and Discharge
of Indenture 54
SECTION 10.2 Application by Trustee of Funds Deposited
for Payment of Securities 57
SECTION 10.3 Repayment of Moneys Held by
Paying Agent 58
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee
and Paying Agent 58
SECTION 10.5 Reinstatement of Company's
Obligations 59
ARTICLE XI MISCELLANEOUS PROVISIONS 59
SECTION 11.1 Incorporators, Stockholders,
Officers and Directors of Company Exempt
from Individual Liability 59
SECTION 11.2 Provisions of Indenture for the
Sole Benefit of Parties and Securityholders 60
SECTION 11.3 Successors and Assigns of
Company Bound by Indenture 60
SECTION 11.4 Notices and Demands on Company,
Trustee and Securityholders 60
SECTION 11.5 Officers' Certificates and Opinions
of Counsel; Statements to Be
Contained Therein 61
SECTION 11.6 Payments Due on Saturdays, Sundays
and Holidays 62
SECTION 11.7 Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939 62
SECTION 11.8 New York Law to Govern 62
SECTION 11.9 Counterparts 62
SECTION 11.10 Effect of Headings; Gender 62
SECTION 11.11 Securities in a Foreign
Currency or in ECU 63
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS 64
SECTION 12.1 Applicability of Article 64
SECTION 12.2 Notice of Redemption; Partial
Redemptions 64
SECTION 12.3 Payment of Securities Called for
Redemption 66
<PAGE> 6
SECTION 12.4 Exclusion of Certain
Securities from Eligibility for
Selection for Redemption 67
SECTION 12.5 Mandatory and Optional Sinking
Funds 67
SECTION 12.6 Repayment at the Option of the
Holders 70
ARTICLE XIII SUBORDINATION 70
SECTION 13.1 Securities Subordinated to Senior
Indebtedness 70
SECTION 13.2 Reliance on Certificate of Liquidating
Agent; Further Evidence as to Ownership of
Senior Indebtedness 73
SECTION 13.3 Payment Permitted If No Default 74
SECTION 13.4 Trustee Not Charged with Knowledge of
Prohibition 74
SECTION 13.5 Trustee to Effectuate
Subordination 75
SECTION 13.6 Rights of Trustee as Holder of
Senior Indebtedness 75
SECTION 13.7 Article Applicable to Paying Agents 75
SECTION 13.8 Subordination Rights Not Impaired
by Acts or Omissions of the
Company or Holders of Senior Indebtedness 76
SECTION 13.9 Trustee Not Fiduciary for
Holders of Senior Indebtedness 76
<PAGE> 7
DEAN FOODS COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of January 15, 1995
<TABLE>
<CAPTION>
Trust Indenture Indenture Section
Act Section
<S> <C>
Section 310 (a)(1) ................................ 6.10
(a)(2) ................................ 6.10
(a)(3) ................................ Not Applicable
(a)(4) ................................ Not Applicable
(a)(5) ................................ 6.10
(b) ................................ 6.8, 6.10
Section 311 (a) ................................ 6.11
(b) ................................ 6.11
Section 312 (a) ................................ 4.1 and 4.2
(b) ................................ 4.2
(c) ................................ 4.2
Section 313 (a)(1)-(5) & (7)-(8)............................ 6.6
(a)(6) ................................ Not Applicable
(b)(1) ................................ Not Applicable
(b)(2) ................................ 6.6
(c) ................................ 6.6
(d) ................................ 6.6
Section 314 (a)(1)-(3) ................................ 4.3
(a)(4) ................................ 3.4
(b) ................................ Not Applicable
(c)(1) ................................ 11.5
(c)(2) ................................ 11.5
(c)(3) ................................ Not Applicable
(d) ................................ Not Applicable
(e) ................................ 11.5
(f) ................................ Not Applicable
Section 315 (a) ................................ 6.1
(b) ................................ 6.5
(c) ................................ 6.1
(d) ................................ 6.1
(d)(1) ................................ 6.1
(d)(2) ................................ 6.1
(d)(3) ................................ 6.1
(e) ................................ 5.10
Section 316 (a) ................................ 7.4
(a)(1)(A) ................................ 5.8
(a)(1)(B) ................................ 5.1, 5.9
(a)(2) ................................ Not Applicable
(b) ................................ 5.6
(c) ................................ 7.1
Section 317 (a)(1) ................................ 5.2
</TABLE>
<PAGE> 8
(a)(2) ............................... 5.2
(b) ............................... 3.3
Section 318 (a) ............................... 11.7
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 9
THIS INDENTURE, dated as of January 15, 1995 between DEAN FOODS COMPANY, a
Delaware corporation (the "Company"), and ___________________, a
_______________________ (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more Series; 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, it is mutually agreed for the equal and proportionate benefit
of the respective Holders from time to time of the Securities or of any Series
thereof as follows:
ARTICLE I
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, as
amended, or the definitions of which in the Securities Act of 1933, as amended,
are referred to in the Trust Indenture Act of 1939, as amended, including terms
defined therein by reference to the Securities Act of 1933, as amended (except
as herein otherwise expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in the Trust
Indenture Act of 1939, as amended, and in the Securities Act of 1933, as
amended, as in 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
<PAGE> 10
words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole, as supplemented and amended from time to
time, 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
Luxembourger 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 in 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.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United States
Code Section 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Company or
any duly authorized committee of that Board.
"Business Day" means, except as may otherwise be provided in the form of
Securities of any particular Series, with respect to any Place of Payment or
place of publication, any day, other than a Saturday or Sunday, or a day on
which banking institutions are authorized or required by law or regulation to
close in that Place of Payment or place of publication.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution 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.
"Company" means Dean Foods Company, a Delaware corporation, until a
successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean such
successor corporation.
2
<PAGE> 11
"Company Notice" means the confirmation of the Company signed by an
officer, transmitted to the Trustee of the terms of the issuance of any
Securities.
"Conversion Agent" shall have the meaning set forth in Section 3.2.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is
located at _______________________________________________.
"Coupon" means any interest coupon appertaining to a Security.
"defaulted interest" has the meaning specified in Section 2.7.
"defeasance" has the meaning specified in Section 10.1(B)(ii).
"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.
"Depositary Security" means, with respect to any Series of Securities, a
Security executed by the Company and authenticated and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in
accordance with this Indenture and pursuant to a resolution of the Board of
Directors as contemplated by Section 2.3, which (i) shall be registered as to
principal and interest in the name of the Depositary or its nominee and (ii)
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such Series.
"Dollar" means the coin or currency of the United States of America which
as of the time of payment is legal tender for the payment of public and private
debts.
3
<PAGE> 12
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of European Communities.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means a currency issued by the government of a country
other than the United States.
"Government Obligations" means, unless otherwise specified pursuant to
Section 2.3, securities which are (i) direct obligations of the government
which issued the currency in which the Securities of such Series are
denominated for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by, or acting as an
agency or instrumentality of, the United States government, the payment of
which obligations is unconditionally guaranteed by such government, and which,
in either case, are full faith and credit obligations of such government, and
which are not callable or redeemable at the option of the issuer thereof prior
to their stated maturity.
"Holder", "Holder of Securities", "Registered Holder", "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, and (b) in
the case of any Unregistered Security, the bearer of such Security, or any
coupon appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed and delivered or
as it may from time to time be 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 by Section 2.3.
"Market Exchange Rate" has the meaning specified in Section 11.11.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed on behalf of the Company
by the chairman of the Board of Directors or the vice chairman or the president
or any vice president and by the treasurer, the controller, any assistant
treasurer, the secretary or any assistant
4
<PAGE> 13
secretary of the Company and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 11.5.
"Opinion of Counsel" means a written opinion of legal counsel, who may be
an employee of or counsel to the Company, and who shall be reasonably
acceptable to the Trustee. Each Opinion of Counsel shall include the
statements provided for in Section 11.5, if and to the extent required hereby.
"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" when used with reference to Securities, subject to the
provisions of Section 7.4, means, as of any particular time, all Securities
authenticated and delivered 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 in the necessary amount and in the required currency shall have been
deposited in trust with the Trustee or with any Paying Agent (other than the
Company) or shall have been set aside, segregated and held in trust by the
Company for the Holders of such Securities (if the Company 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;
(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 and the Company is presented that such
Security is held by a person in whose hands such Security is a legal, valid
and binding obligation of the Company); and
5
<PAGE> 14
(d) Securities as to which defeasance has been effected pursuant to Section
10.1(B).
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.
"Paying Agent" means any Person (which may include the Company) authorized
by the Company to pay the principal of or interest, if any, on any Security on
behalf of the Company.
"Person" or "persons" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any Series,
means the place or places where the principal of and interest, if any, on the
Securities of that Series are payable as specified pursuant to Section 3.2.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any."
"record date" has the meaning specified in Section 2.7.
"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 which is registered in the
Security Register.
"Responsible Officer" when used with respect to the Trustee means any
officer within the corporate trust department (or any successor department) of
the Trustee including any vice president, assistant vice president, assistant
secretary, senior trust officer, trust officer or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed
6
<PAGE> 15
by the persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred at the Corporate Trust Office because of
his or her knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" has the meaning specified in Section 2.8.
"Senior Indebtedness" means (a) indebtedness or obligations of, or
guaranteed or assumed by, the Company for borrowed money which is evidenced by
bonds, debentures, notes or other similar instruments unless, by the terms of
such indebtedness it is provided that such indebtedness is not senior in right
of payment to the Securities of any Series, and (b) any amendments, renewals,
extensions, modifications and refinancings of any such indebtedness or
obligations; provided that Senior Indebtedness shall not include the Securities
of any Series.
"Series" or "Series of Securities" means all Securities of a similar tenor
authorized by a particular resolution of the Board of Directors.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date on which the principal
of such Security or such installment of principal or interest is due and
payable in accordance with the terms thereof.
"Trust Indenture Act" or "TIA" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939, as amended, 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 until a successor Trustee shall have become such pursuant to the
provisions hereof, and thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
"United States of America" means the United States of America (including
the states and the District of Columbia), its territories, possessions, the
Commonwealth of Puerto Rico and other areas subject to its jurisdiction.
7
<PAGE> 16
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Person" means a citizen or resident of the United States of America,
a corporation, partnership or other entity created or organized in or under the
laws of the United States of America or any political subdivision thereof or an
estate or trust the income of which is subject to United States of America
federal income taxation regardless of whether such income is from sources
within or without the United States of America or whether or not such income is
effectively connected with the conduct of a trade or business within the United
States of America.
"vice president" when used with respect to the Company 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."
ARTICLE II
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
(including temporary or definitive global form) as shall be established by or
pursuant to a resolution of the Board of Directors 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 (the provisions of which shall be appropriate to reflect the terms of
the Series of Securities represented thereby) and may have imprinted or
otherwise reproduced thereon such legend or legends, 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 the 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:
8
<PAGE> 17
This is one of the Securities of the Series designated herein and referred
to in the within-mentioned Indenture.
_____________________________,
as Trustee
By: _____________________________
Authorized Signatory
or
_____________________________,
as Trustee
By: _____________________________,
as Authentication Agent
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. There shall be established in or pursuant to
one or more resolutions of the Board of Directors and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any Series,
(a) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from all other Securities issued by
the Company);
(b) 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
Sections 2.8, 2.9, 2.11, 8.5 or 12.3);
(c) if other than 100% of their principal amount, the percentage of their
principal amount at which the Securities of the Series will be offered for
sale to the public;
9
<PAGE> 18
(d) 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);
(e) the date or dates on which the principal of the Securities of the
Series is payable or the method of determination thereof;
(f) the rate or rates (which may be fixed or variable), or the method or
methods of determination thereof, at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the interest payment dates on which such interest shall be payable
and (in the case of Registered Securities) the record dates for the
determination of Holders to whom interest is payable;
(g) the place or places where the principal of and interest, if any, on
Securities of the Series shall be payable (if other than as provided in
Section 3.2);
(h) the price or prices at which, the period or periods within which and
the terms and conditions upon which Securities of the Series may be redeemed,
in whole or in part, at the option of the Company;
(i) 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 pursuant to Section 5.1 or
provable in bankruptcy pursuant to Section 5.2;
(j) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the Series whether pursuant to any sinking fund or analogous
provisions or pursuant to other provisions set forth therein or at the option
of a Holder thereof and the price or prices, at which and the period or
periods within which and the terms and conditions upon which Securities of
the Series shall be redeemed, purchased or repaid, in whole or in part;
(k) if other than denominations of $1,000, and any integral multiple
thereof, in the case of Registered Securities, or $1,000 and $5,000 in the
case of Unregistered Securities, the denominations in which Securities of the
Series shall be issuable;
(l) the form of the Securities, including such legends as required by law
or as the Company deems necessary or appropriate and the form of any
temporary global security which may be issued;
10
<PAGE> 19
(m) 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);
(n) if the principal of or interest on the Securities of such Series are to
be payable, at the election of the Company 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;
(o) 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;
(p) 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;
(q) whether, under what circumstances and in what amounts the Company 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 Company will have the option to
redeem such Securities rather than pay such additional amounts;
(r) 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, the form and terms of such certificates,
documents or conditions;
(s) if other than the Trustee, any trustees, depositaries, authenticating
or Paying Agents, transfer agents or registrars or any other agents with
respect to the Securities of such Series;
11
<PAGE> 20
(t) if the Securities of such Series do not bear interest, the applicable
dates for purposes of Section 4.1 hereof;
(u) whether the Securities of such Series are to be issuable in whole or in
part in the form of one or more Depositary Securities, and, in such case, the
Depositary for such Securities;
(v) the application, if any, of either or both of Section 10.1(B)(ii) or
10.1(B)(iii) to the Securities of the Series;
(w) any other events of default or covenants with respect to the Securities
of such Series; and
(x) any other terms or conditions upon which the Securities of the Series
are to be issued (which terms shall not be inconsistent with the provisions
of this Indenture).
All Securities and Coupons, if any, appertaining thereto of any one Series
shall be substantially identical except in the case of Registered Securities as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto. All Securities of any one Series need not be issued at the same time,
and unless otherwise provided, a Series may be reopened for issuances of
additional Securities of such Series.
SECTION 2.4 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series, having attached thereto
appropriate Coupons, if any, executed by the Company to the Trustee for
authentication, and the Trustee shall thereupon authenticate and make available
for delivery such Securities to or upon the written order of the Company,
signed by both (a) the chairman of its Board of Directors, or any vice chairman
of its Board of Directors, or its president or any vice president and (b) its
treasurer or any assistant treasurer, secretary or any assistant secretary
without any further action by the Company. 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:
(a) a copy of any resolution or resolutions of the Board of Directors
relating to such Series, in each case certified by the secretary or an
assistant secretary of the Company;
12
<PAGE> 21
(b) a supplemental indenture, if any;
(c) an Officers' Certificate setting forth the form and terms of the
Securities of such Series and Coupons, if any, as required pursuant to
Sections 2.1 and 2.3, respectively, and prepared in accordance with Section
11.5;
(d) an Opinion of Counsel, prepared in accordance with Section 11.5, which
shall state that:
(i) the form or forms and terms of such Securities and Coupons, if any,
have been established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by Sections 2.1 and
2.3 in conformity with the provisions of this Indenture and in conformity
with such resolution or supplemental indenture, as the case may be, and
(ii) such Securities, and Coupons, if any, have been duly authorized,
and, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the
Company enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or other laws
relating to or affecting the enforcement of creditors' rights generally and
by general equitable principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
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 resolution of the Board of
Directors and/or Officers' Certificate otherwise required pursuant to Section
2.3 or the Officers' Certificate 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. After the original issuance of the first Security of such
Series to be issued, any separate request by the Company that the Trustee
authenticate Securities of such Series for original issuance will be deemed to
be a certification by the Company that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
13
<PAGE> 22
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee is advised by counsel in good
faith that the issuance of such Securities would expose the Trustee to personal
liability or is unlawful.
If the Company 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 Company shall execute and the Trustee shall, in accordance
with this Section, 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 Company by
both (a) the chairman of its Board of Directors or its president or any vice
president and (b) its treasurer or any assistant treasurer or its secretary or
any assistant secretary, 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 such officers. The seal of the Company 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.
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In case any officer of the Company 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 Company, 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 Company; and any Security or
Coupon may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Company, 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 and 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
Company 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.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of the Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of the 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 as shall be specified as contemplated
by Section 2.3. In the absence of any such specification with respect to the
Securities of any Series, Registered Securities shall be issuable in
denominations of $1,000 and any integral multiple thereof, and Unregistered
Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each Series shall be numbered,
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lettered, or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Company 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 Company 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.
Unless otherwise provided as contemplated by Section 2.3, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any interest payment date shall be paid to the person in whose name
that Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on the regular record date for the payment
of such interest.
The term "record date" as used with respect to any interest payment date
(except for a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular Series, or,
if no such date is so specified, the close of business on the fifteenth day
preceding such interest payment date, whether or not such record date is a
Business Day.
Any interest on any Security of any Series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (called
"defaulted interest" for purposes of this Section) shall forthwith cease to be
payable to the Registered Holder on the relevant record date by virtue of his
having been such Holder; and such defaulted interest may be paid by the
Company, at its election in each case, as provided in clause (1) or clause (2)
below:
(1) The Company may elect to make payment of any defaulted interest to the
persons in whose names any such Securities (or their respective predecessor
Securities) are registered at the close of business on a special record date
for the payment of such defaulted interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Security of such
Series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to
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the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such defaulted interest as
in this clause provided. Thereupon the Trustee shall fix a special record
date for the payment of such defaulted interest in respect of Securities of
such Series which shall be not more than 15 nor less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and
at the expense of the Company, shall cause notice of the proposed payment of
such defaulted interest and the special record date thereof to be mailed,
first class postage prepaid, to each Registered Holder at his address as it
appears in the Security Register, not less than 10 days prior to such special
record date. Notice of the proposed payment of such defaulted interest and
the special record date therefor having been mailed as aforesaid, such
defaulted interest in respect of Securities of such Series shall be paid to
the person in whose names such Securities (or their respective predecessor
Securities) are registered on such special record date and such defaulted
interest shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any defaulted interest on the
Securities of any Series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of that
Series may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
SECTION 2.8 Registration, Transfer and Exchange. The Company will cause
to be kept 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
(herein sometimes referred to as the "Securities Register") in which, subject
to such reasonable regulations as it may prescribe, the Company will provide
for the registration and the registration of the transfer of, the Registered
Securities. The Trustee is hereby appointed Security
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registrar for purposes of registering, and registering transfers of, the
Securities.
Upon surrender 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 for each Series of Securities, the Company shall
execute and the Trustee shall authenticate and make available for delivery in
the name of the transferee or transferees a new Registered Security or
Registered Securities of the same Series and of a like tenor and containing the
same terms (other than the principal amount thereof, if more than one
Registered Security is executed, authenticated and delivered with respect to
any Registered Security so presented, in which case the aggregate principal
amount of the executed, authenticated and delivered Registered Securities shall
equal the principal amount of the Security presented in respect thereof) and
conditions.
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
Company that shall be maintained for such purpose in accordance with Section
3.2 and upon payment, if the Company 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
Company 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 Company 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
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<PAGE> 27
such Unregistered Securities to be exchanged at the agency of the Company 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 appertaining thereto, and upon payment, if the Company 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 Company 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 Company.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Securities, other than
exchanges pursuant to Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security during a 15 day period prior to the day of mailing of the
relevant notice of redemption or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except, in the
case of any Security to be redeemed in part, the portion thereof not 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
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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 Company
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 Company shall appoint a
successor Depositary with respect to such Registered Securities. If a
successor Depositary for such Registered Securities is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Global
Securities shall no longer be effective and the Company will execute, and the
Trustee, upon receipt of an Officers' 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 Company may at any time and in its sole discretion determine that the
Registered Securities of any Series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Company will execute, and the
Trustee, upon receipt of an Officers' 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 Company will execute,
and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such Series, will
authenticate and deliver, Securities of such Series in definitive registered
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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 Company 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 Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge to the Holder,
(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
Company 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 agent of the Company 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.
Notwithstanding anything herein or in the terms of any Series of Securities
to the contrary, none of the Company, the Trustee or any agent of the Company
or the Trustee (any of which, other than the Company, shall rely on an
Officers' Certificate and an Opinion of Counsel) shall be
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required to exchange any Unregistered Security for a Registered Security if
such exchange would result in adverse Federal income tax consequences to the
Company (such as, for example, the inability of the Company 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, then,
in the absence of notice to the Company or the Trustee that the Security has
been acquired by a bona fide purchaser, the Company shall execute, and upon the
written request of any officer of the Company, the Trustee shall authenticate
and make available for delivery a new Security of the same Series and of like
tenor and principal amount and with the same terms and conditions, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security or in lieu of and substitution for the Security
so destroyed, lost or stolen, in each case together with Coupons corresponding
to the Coupons appertaining to the Securities so mutilated, defaced, destroyed,
lost or stolen. In every case the applicant for a substitute Security or
Coupon shall furnish to the Company and to the Trustee and to any agent of the
Company 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 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 Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee 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 or is being surrendered for
conversion in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Company 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); provided,
however, that unless otherwise provided pursuant to Section 2.3, the applicant
for such payment shall furnish to the Company and to the Trustee and any agent
of the Company or the Trustee such security or indemnity as any of them may
require to save each of them
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harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and the Trustee and any agent of the Company or the
Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security 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 Security or Coupon is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, 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 or Coupons shall be held and owned upon the express
condition that, to the extent permitted by the law, the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated, defaced,
destroyed, lost or stolen Securities or 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, exchange or conversion, or for credit against any payment in respect
of a sinking or analogous fund, shall, if surrendered to the Company or any
agent of the Company or the Trustee, be delivered to the Trustee for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and
no Securities or Coupons shall be issued in lieu thereof, except as expressly
permitted by any of the provisions of this Indenture. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold and all
Securities so delivered shall be promptly cancelled by the Trustee. The
Trustee shall return cancelled Securities and Coupons held by it or provide a
certificate of destruction to the Company. If the Company shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any Series, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Securities for such
Series (printed, lithographed, typewritten or otherwise
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reproduced, in each case in form reasonably acceptable 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 Company with the reasonable concurrence of the
Trustee. Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be
executed by the Company 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 Company shall execute
and shall furnish definitive Securities of such Series and thereupon temporary
Securities of such Series may be surrendered in exchange therefor without
charge to the Holder at each office or agency to be maintained by the Company
for that purpose pursuant to Section 3.2 and, in the case of Unregistered
Securities, at any agency maintained by the Company for such purpose as
specified pursuant to Section 2.3, and the Trustee shall authenticate and make
available for delivery in exchange for such temporary Securities of such Series
an equal aggregate principal amount of definitive Securities of the same Series
of 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. 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 procedure pursuant to which definitive or global
Unregistered Securities of such Series would be issued in exchange for such
temporary global Unregistered Security).
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ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest. The Company covenants and
agrees for the benefit of each particular 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 in accordance with the terms of 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 Company 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 as
they appear on the Security Register.
Notwithstanding the provisions of Section 2.3 and Section 2.7, unless
otherwise specified as contemplated by Section 2.3, payment of principal of and
any interest on any Security in definitive global form shall be made to the
Person or Persons specified therein.
Except as provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat a Person as the Holder of
such principal amount of Outstanding Securities represented by a definitive
global Security as shall be specified in a written statement of the Holder of
such definitive global Security.
SECTION 3.2 Offices for Payment, etc. So long as any of the Securities
remain outstanding, the Company will maintain the following for each Series:
an office or agency (a) where the Securities may be presented for payment, (b)
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where the Registered Securities may be presented for registration of transfer
and for exchange as provided in this Indenture, (c), if applicable, an office
or agency where the Securities may be presented for conversion ("Conversion
Agent"), and (d) where notices and demands may be served upon the Company in
respect of the Securities of any Series, the Coupons appertaining thereto, or
this Indenture. The Company 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 Company 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
Company. 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 Company within the United States if
such payment in Dollars at each agency maintained by the Company outside the
United States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company will give to the Trustee written notice of the location of any
such office or agency and of any change of location thereof. In case the
Company shall fail to so designate or maintain any such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office. Unless otherwise specified pursuant to Section 2.3,
the Trustee is hereby appointed Paying Agent and Conversion Agent.
SECTION 3.3 Paying Agents. Whenever the Company 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 Company or by any other obligor on the
Securities of such Series) in trust for the benefit of
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the Holders of the Securities of such Series, or Coupons appertaining thereto,
if any, or of the Trustee, and upon the occurrence of an Event of Default and
upon the written request of the Trustee, pay over all such sums received by it
to the Trustee, and
(b) that it will give the Trustee notice of any failure by the Company (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.
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such Series, deposit in a timely manner 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 Company will promptly
notify the Trustee of any failure to take such action.
If the Company 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 Company 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 Company 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 Company 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 3.4 Written Statement to Trustee. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, a brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or accounting officer of
the Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of
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grace or requirement of notice provided under the Indenture), and if the
Company shall not be in compliance, specifying all such defaults or
non-compliance and the nature and status thereof.
SECTION 3.5 Luxembourg Publications. In the event of the publication of
any notice pursuant to Section 8.2, 10.4 or 12.2, 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
regulations, as evidenced by an Officers' Certificate delivered to such party,
make a similar publication in Luxembourg.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company 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 such 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 reasonably request in
writing, within 30 days after receipt by the Company of any such request,
such list to be 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 contained in the most recent list furnished to it as
provided in Section 4.1 or maintained by the Trustee in its capacity as
Security registrar for such Series, if so acting. The Trustee may
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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 of any Series (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 with 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, 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 could be in violation of applicable law. Such written
statement shall
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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 such 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 Company and the Trustee that neither the
Company nor the Trustee nor any agent of the Company 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 Company. The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, or if the Company 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, 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
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compliance by the Company 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 required by Sections 6.6 and 11.4, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents, and reports required to be filed by the Company pursuant to
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.
ARTICLE V
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 any 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) unless it is either
inapplicable to a particular Series or it is specifically deleted or modified
in or pursuant to the supplemental indenture or resolution of the Board of
Directors establishing such Series of Securities or in the form of Security for
such Series:
(a) default in the payment of any installment 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 of any
of the Securities of such Series as and when the same shall become due and
payable, either at maturity, upon any redemption, by declaration or
otherwise; or
(c) default in the performance, or breach of any covenant or
warranty of the Company contained in the Securities of such Series or in this
Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or which
has expressly been included in this Indenture solely for the benefit of a
Series of Securities other than that Series), and
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continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that Series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(d) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of all or any substantial part of
its property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive days;
or
(e) the commencement by the Company of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(f) any other Event of Default provided with respect to Securities of such
Series.
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If an Event of Default occurs and is continuing with respect to the Securities
of any Series, then and in each and every such case, unless the principal of
all Securities of such Series shall have already become due and payable, either
the Trustee for such Series or the Holders of not less than 25% in aggregate
principal amount of the Securities of such Series then Outstanding hereunder,
by notice in writing to the Company (and to the Trustee if given by such
Holders), 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 the
Securities of such Series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable.
This provision, however, is subject to the condition that if at any time after
the principal (or, if the Securities or 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 the Securities of such Series 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 Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest, if any, upon all the Securities of such
Series and the principal of any and all Securities of such Series which shall
have become due otherwise than by such acceleration (with interest upon such
principal) and, to the extent that payment of such interest is enforceable
under applicable law, 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 to the date of
such payment or deposit) and in Dollars such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and counsel
and if all other expenses and liabilities incurred, and all advances with
interest made, by the Trustee, its agents, attorneys and counsel and any and
all defaults under this Indenture, other than the nonpayment of the principal
of Securities of such Series which shall have become due by such acceleration,
shall have been remedied, then and in every such case the Holders of a majority
in aggregate principal amount of the Securities of such Series then
Outstanding, by written notice to the Company and to the Trustee for the
Securities of such Series, may waive all defaults 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
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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 the Original Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May Prove Debt.
The Company covenants that (a) in case default shall be made in the payment of
any installment 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
or upon any redemption or by declaration or otherwise, then upon demand of the
Trustee for the Securities of such Series, the Company will pay to the Trustee
for the Securities of such Series 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 for principal of 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, and all expenses
and liabilities incurred and all advances with interest made by, the Trustee
and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay the principal
of and interest on the Securities of any Series to the persons entitled
thereto, whether or not the principal of and interest on the Securities of such
Series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such Series, 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
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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 Company or other obligor upon such Securities and
collect in the manner provided by law out of the property of the Company 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 Company 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 Company or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Company or other obligor under the Securities of any Series, or to the
creditors or property of the Company 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, and all expenses and liabilities incurred and all
advances with interest made by, the Trustee and each predecessor Trustee, and
their respective agents, attorneys and counsel, except as a result of
negligence or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Company or other obligor upon all Securities of
any Series, or to the creditors or property of the Company or such other
obligor, and
(b) 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
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payments to the Trustee for the Securities of such Series, and, in the event
that such Trustee shall consent to the making of payments directly to the
Securityholders, to pay to such Trustee such amounts as shall be sufficient
to cover reasonable compensation to, and all expenses and liabilities
incurred and all advances with interest made by, such Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel and
all other amounts due to such Trustee or any predecessor Trustee pursuant to
Section 6.7, 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 accept or adopt on behalf of any Securityholder 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.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities or Coupons appertaining to such Securities, may be
enforced by the Trustee for the Securities of such Series or Coupons without
the possession of any of the Securities of such Series or Coupons appertaining
to such Securities or the production thereof at 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 for the Securities of such Series
(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
for the Securities of such Series pursuant to this Article in respect of the
Securities of any Series shall be applied in the following order at the date or
dates fixed by such Trustee and, in case of the
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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 moneys 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 moneys have been collected, including reasonable
compensation to, and all expenses and liabilities incurred and all advances
with interest made by, the Trustee and each predecessor Trustee and their
respective agents and attorneys and all other amounts due to the Trustee or
any predecessor Trustee pursuant to Section 6.7, except as a result of
Trustee's negligence or bad faith;
SECOND: To the payment of the amounts then due and unpaid for interest on
the Securities of such Series for which principal is not yet due and payable
in respect of which moneys have been collected, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference, according to the amounts then due and payable on such Securities
for principal and interest;
THIRD: To the payment of the amounts then due and unpaid for principal of
and interest on the Securities of such Series for which principal is due and
payable in respect of which moneys have been collected, such payments to be
made ratably to the persons entitled thereto without discrimination or
preference, according to the amounts then due and payable on such Securities
for principal and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee for the Securities of any Series or any Holder 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 or to such Holder, then and in every such case,
subject to the determination in any such proceeding, the Company, the Trustee
and the Holders shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the Company, the
Trustee and the Securityholders shall continue as though no such proceedings
had been taken.
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SECTION 5.5 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 an Event of Default and of the continuance thereof,
as hereinbefore provided, and unless also the Holders of not less than 25% 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
during such 60-day period by Holders of a majority in principal amount of the
Securities of such Series then Outstanding; 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 of a Security or Coupon 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 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.
SECTION 5.6 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any 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 (subject to Section 2.7) interest on such
Security or Coupon at the respective rates, in the respective amount on or
after the respective due dates expressed in such Security or Coupon, and 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.
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SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 2.9 and Section 5.5, no right or
remedy herein conferred upon or reserved to the Trustee or to the
Securityholders 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 Securityholder 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 5.5, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or the Securityholders.
SECTION 5.8 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected (with each
Series treated 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 the Trustee,
being advised by counsel, shall have the right to decline to follow any such
direction if 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.
SECTION 5.9 Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Securities of any Series at the
time Outstanding may on behalf of the Holders of all the Securities of such
Series waive any past default hereunder or its consequences, except a default
in the payment of the principal of or interest on any of the Securities of such
Series.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have
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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 5.10 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 and expenses, 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
Securityholder or group of Securityholders of any Series holding
in the aggregate more than 10% in aggregate principal amount of
the Securities of such Series, or to any suit instituted by any
Securityholder 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.
SECTION 5.11 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.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing with respect to the Securities of any Series, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in
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its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of
Default with respect to the Securities of any Series:
(i) the Trustee need perform only those duties
that are specifically set forth in this Indenture and
no others; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming on their face
to the requirements of this Indenture. However, in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not
they conform on their face to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
(i) this paragraph (c) does not limit the effect
of paragraph (b) of this Section 6.1;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with
respect to any action it takes or omits to take in good
faith in accordance with a direction received by it
pursuant to Section 5.8.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and
(e) of this Section 6.1.
(e) The Trustee may refuse to perform any duty or
exercise any right or power or extend or risk its own funds or
otherwise incur any financial liability unless it receives
indemnity satisfactory to it against any loss, liability or
expense.
(f) Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability
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for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 6.2 Rights of Trustee.
Subject to Section 6.1 and the provisions of the Trust
Indenture Act:
(a) The Trustee may rely on any document believed by
it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel.
(c) Subject to the provisions of Section 6.1(c), the
Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within
its rights or powers.
(d) The Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel.
(e) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
(f) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 6.3 Individual Rights of Trustee. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities or Coupons and may otherwise deal
with the Company or its affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, registrar or
coregistrar may do the same with
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like rights. However, the Trustee must comply with Sections 6.10
and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes
no representation as to the validity or adequacy of this
Indenture or the Securities or Coupons, it shall not be
accountable for the Company's use of the proceeds from the
Securities, it shall not be responsible for any statement in the
registration statement for the Securities under the Securities
Act of 1933 or in the Indenture or the Securities (other than its
certificate of authentication).
SECTION 6.5 Notice of Defaults. If a default occurs
and is continuing with respect to any Securities of any Series
and if it is known to the Trustee through oral or written notice
to a corporate trust officer, the Trustee shall give to each
Securityholder of such Series notice of the default within 90
days after such default occurs. Except in the case of a default
described in Section 5.1(a) or (b), the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the
interests of Securityholders of such Series.
SECTION 6.6 Reports by Trustee to Holders. Within
60 days after each June 1 beginning with the June 1 following the
date of this Indenture, the Trustee shall mail to each
Securityholder of any Series and each other person specified in
TIA Section 313(c) a brief report dated as of such June 1 that
complies with TIA Section 313(a) to the extent required thereby.
The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the Commission
and each securities exchange on which the Securities of any
Series are listed. The Company agrees promptly to notify the
Trustee whenever the Securities of any Series become listed on
any securities exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity. The Company
agrees:
(a) to pay to the Trustee from time to time in Dollars
such compensation as shall be agreed to in writing between
the Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances with
interest thereon incurred or made by the Trustee
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in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses,
advances with interest thereon and disbursements of its
agents and counsel), except to the extent any such expense,
disbursement or advance may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee in Dollars for, and to
hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or
administration of this trust or the performance of its
duties hereunder, including the costs and expenses of
defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder (including the reasonable
compensation and the expenses, advances with interest
thereon and disbursements of its agents and counsel), except
to the extent that any such loss, liability or expense may
be attributable to its negligence or bad faith.
As security for the performance of the obligations of
the Company in this Section 6.7, the Trustee shall have a lien
prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay the
principal of or interest, if any, on particular Securities.
"Trustee" for purpose of this Section 6.7 includes any
predecessor Trustee, provided that the negligence or bad faith of
any Trustee shall not be attributable to any other Trustee.
The Company's payment obligations pursuant to this
Section 6.7 shall survive the discharge of this Indenture. When
the Trustee incurs expenses after the occurrence of a default
specified in Sections 5.1(d) and 5.1(e), such expenses are
intended to constitute expenses of administration under
bankruptcy law.
SECTION 6.8 Replacement of Trustee. The Trustee may
resign at any time with respect to Securities of one or more
Series by so notifying the Company; provided, however, no such
resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 6.8. The
Holders of a majority in aggregate principal amount of the
Outstanding Securities of any Series may remove the Trustee with
respect to such Series at the time outstanding by so notifying
the Trustee and the Company. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
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(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to
the Securities of one or more Series, the Company shall promptly
appoint, by resolution of its Board of Directors, a successor
Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture
with respect to the Securities of such Series. The successor
Trustee shall mail a notice of its succession to Securityholders
so affected. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject
to the lien provided for in Section 6.7.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of a majority in
aggregate principal amount of the Securities at the time
Outstanding may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee.
SECTION 6.9 Successor Trustee by Merger. If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets
to, another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor
Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA Section 310(a)(1) and Section
310(a)(5). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b).
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SECTION 6.11 Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA Section
311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders.
(a) 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
Company, if made in the manner provided in this Article.
(b) In the case of Registered Securities, the
ownership of such Securities shall be proved by the Security
Register.
SECTION 7.2 Proof of Execution of Instruments.
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
accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
SECTION 7.3 Holders to Be Treated as Owners. The
Company, the Trustee and any agent of the Company 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 Section 2.7)
interest on such Security and for all other purposes; and neither
the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary. The
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Company, the Trustee and any agent of the Company 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
Company, the Trustee, nor any agent of the Company 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 Company 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 Company
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 Company 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
Company 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 Company or any other
obligor on the Securities.
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
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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, 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 Company, the
Trustee and the Holders of all the Securities affected by such
action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent
of Securityholders. The Company, when authorized by a resolution
of its Board of Directors, and the Trustee for the Securities of
any and all Series 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 as in force
at the date of the execution thereof), in form satisfactory to
such Trustee, 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 Company, or successive successions, and the
assumption by the successor corporation of the covenants,
agreements and obligations of the Company pursuant to
Article IX;
(c) to add to the covenants of the Company such
further covenants, restrictions, conditions or provisions
for the protection of the Holders of Securities of any or
all Series or of Coupons and, if such additional covenants
are to be for the benefit of less than all the Series of
Securities or Coupons stating that such covenants are being
added solely for the benefit of such Series;
(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 such other provisions in regard to
matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may
deem necessary
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or desirable and which shall not materially and adversely
affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the form or terms of Securities of
any Series or of the Coupons appertaining to such Securities
as permitted by Sections 2.1 and 2.3;
(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 the one Trustee, pursuant
to the requirements of Section 6.8; or
(g) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Outstanding
Security of any Series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision.
The Trustee is hereby authorized to join with the
Company 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 VII) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental
indenture (voting as one class), the Company, when authorized by
a resolution of its Board of Directors, and the Trustee for such
Series of Securities 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 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
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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, however, that no such
supplemental indenture shall (a) extend the Stated 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 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 the 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
payment thereof or, if the Securities provide therefor, any right
of repayment at the option of the Securityholder without the
consent of the Holder of each Security so affected, (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 or (c) modify the provisions of Article XIII hereof in a
manner which is materially adverse to the Holders of any Series
of Securities then outstanding.
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 Company, accompanied by a copy
of a resolution of the Board of Directors certified by the
secretary or an assistant secretary of the Company authorizing
the execution of any such supplemental indenture, and upon the
filing with the Trustee for such Series of Securities of evidence
of the consent of Securityholders as aforesaid and other
documents, if any, required by Section 7.1, the Trustee for such
Series of Securities shall join with the Company in the execution
of such supplemental indenture unless such supplemental indenture
affects such Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case such Trustee may in
its discretion, but shall not be obligated to, enter into such
supplemental indenture.
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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 Company and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Company 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, 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
3.5, 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
Company 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. Every
supplemental indenture executed pursuant to this Article Eight
shall conform to the requirements of the Trust Indenture Act.
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 Company 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, shall
receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article VIII complies with the applicable
provisions of this Indenture.
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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 Eight may bear, upon
the direction of the Company, a notation in form satisfactory to
the Trustee for the Securities of such Series as to any matter
provided for by such supplemental indenture. If the Company or
the Trustee shall so determine, new Securities of any Series so
modified as to conform, in the opinion of the Trustee and the
Company, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company,
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 Outstanding
Securities without the written consent of each holder of Senior
Indebtedness then outstanding that would be materially adversely
affected thereby.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc., on
Certain Terms. The Company may sell, convey or lease all or
substantially all of its assets to any Person, or consolidate or
merge with or into, any other corporation, provided that in any
such case, (i) either the Company shall be the continuing
corporation, or the successor corporation or person which
acquires by sale or conveyance all or substantially all of the
assets of the Company shall be a corporation or other entity
organized and validly existing under the laws of the United
States of America or any State thereof or the District of
Columbia and shall expressly assume the due and punctual payment
of the principal of and interest on all the Securities 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 Company by
supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation or entity, and (ii)
immediately after such merger or consolidation, or such sale,
conveyance or lease, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
SECTION 9.2 Successor Corporation Substituted. In
case of any such consolidation, merger, sale, lease or
conveyance, and following such an assumption by the successor
corporation, such successor corporation shall
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succeed to and be substituted for the Company, 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 Company 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 Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and
shall make available for delivery any Securities, together with
any Coupons appertaining thereto, which previously shall have
been signed and delivered by the officers of the Company 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
conveyance by way of lease) the Company (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 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.
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ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Company 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 Company 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 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 Company shall have irrevocably deposited
or caused to be deposited with the Trustee as trust funds the
entire amount (other than moneys repaid by the Trustee or any
Paying Agent to the Company in accordance with Section 10.4) or
Government Obligations maturing as to principal and interest in
such amounts and at such times as will ensure the availability of
cash 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 Company shall also
pay or cause to be paid all other sums payable hereunder by the
Company with
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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, and the Company's right of optional redemption
(provided the Company provides sufficient funds to effect such
optional redemption), (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of
Holders 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,
obligations and immunities of the Trustee hereunder and (v) the
rights of the Securityholders 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, subject to Section 10.5, the Trustee, on demand of
the Company accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the Company,
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 Company 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 and the Securities of such Series.
(B) (i) In addition to the provisions of Section
10.1(A), the Company may, at its option by or pursuant to, or
otherwise in a manner or by such Persons as may be authorized
pursuant to, one or more resolutions duly adopted by the Board of
Directors, at any time with respect to the Securities of any
Series, elect to have defeasance under subsection (ii) of this
Section 10.1(B) be applied to the Outstanding Securities of such
Series provided that provision therefor is made for such
application pursuant to Section 2.3 and the applicable conditions
thereto as set forth in this Section 10.1(B) have been satisfied.
(ii) Upon the Company's exercise of the option
referenced in Section 10.1(B)(i) applicable to this subsection,
the Company may terminate its obligations under the Outstanding
Securities of any Series and this Indenture with respect to such
Series on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and
discharged the entire
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indebtedness represented by the Outstanding Securities of such
Series and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense and request of the
Company, shall execute proper instruments acknowledging the
same), except for the following: (1) the rights of Holders of
Outstanding Securities of such Series to receive payments in
respect of the principal of and interest on such Securities when
such payments are due, (2) the Company's obligations with respect
to such Securities under Sections 2.8, 2.9, 2.11, 3.2, 6.7, 10.4
and 10.5, (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder, and (4) this Section 10.1(B).
(iii) The following shall be the conditions to the
application of Section 10.1(B)(ii) to the Outstanding Securities
of such Series:
(a) The Company shall have irrevocably deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.10 who shall agree
to comply with the provisions of this Section and Section
10.1(B) applicable to it) under the terms of an irrevocable
trust agreement, as trust funds in trust solely for the
purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such Series,
(i) cash in the currency or currency unit required, or
(ii) Government Obligations maturing as to principal and
interest in such amounts (payable in the currency in which
the Securities of such Series are payable) and at such times
as are sufficient, to pay the principal of and interest on
the Outstanding Securities of such Series to Maturity or
redemption, as the case may be, or (iii) a combination
thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay
and discharge, (x) the principal of and each installment of
principal of and interest, if any, on the Outstanding
Securities of such Series and Coupons appertaining thereto
on the Stated Maturity of such principal or installment of
principal or interest, if any, and (y) any mandatory sinking
fund payments or analogous payments applicable to the
Outstanding Securities of such Series on the day on which
such payments are due and payable in accordance with the
terms of this Indenture and of such Securities. Such
irrevocable trust agreement shall include, among other
things, (i) provision for the payments referenced in clauses
(x) and (y) of the immediately preceding sentence, (ii) the
payment of the
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reasonable expenses of the Trustee incurred or to be
incurred in connection with carrying out such trust
provisions, (iii) rights of registration, transfer,
substitution and exchange of Securities of such Series in
accordance with the terms stated in this Indenture and
(iv) continuation of the rights and obligations and
immunities of the Trustee as against the Holders of
Securities of such Series as stated in this Indenture.
(b) No Event of Default or event which with notice or
lapse of time or both would constitute an Event of Default
with respect to the Securities of such Series shall have
occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit or, insofar as
Sections 5.1(d) and 5.1(e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
(c) Such deposit, defeasance [or covenant defeasance]
shall not result in a breach or violation of, or constitute
a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or
by which it is bound.
(d) The Company shall have delivered to the Trustee an
Opinion of Counsel of recognized national standing to the
effect that Securityholders of such Series will not
recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and discharge and will
be subject to Federal income tax on the same amounts and in
the same manner and at the same time as would have been the
case if such deposit and defeasance or covenant defeasance,
as the case may be, had not occurred.
(e) The Company shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating
that all conditions precedent provided for herein relating
to the deposit and defeasance or covenant defeasance, as the
case may be, contemplated by this Section 10.1(B) have been
complied with.
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of Securities. Subject to Section 10.4,
all moneys deposited with the 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 Company
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
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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 (other than the Company) under the
provisions of this Indenture with respect to such Series of
Securities shall, upon demand of the Company, be 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 Unclaimed Moneys Held by
Trustee and Paying Agent. Any moneys deposited with or paid to
the Trustee or any Paying Agent (including the Company acting as
its own 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
Company, promptly be repaid to the Company by the Trustee for
such Series or such Paying Agent (except that with respect to any
amounts then held by the Company in trust as its own Paying Agent
no such request need be given and at such time the Company shall
be discharged from its duty to hold such moneys in trust as
Paying Agent), and the Holder of the Securities of such Series
and of any Coupon appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the
Company 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 Company,
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 Company 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 3.5, 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
Company. Anything in this Article X to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the
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written request of the Company any money or Government
Obligations held by it as provided in Section 10.1(B) (iii) which,
in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect such
defeasance or covenant defeasance, as the case may be, in
accordance with the provisions of this Indenture.
SECTION 10.5 Reinstatement of Company's Obligations.
If the Trustee is unable to apply any funds or Government
Obligations in accordance with Section 10.1 by reason of any
legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities of any Series for which
such application is prohibited shall be revived and reinstated as
if no deposit had occurred pursuant to Section 10.1 until such
time as the Trustee is permitted to apply all such funds or
Government Obligations in accordance with Section 10.1; provided,
however, that if the Company has made any payment of interest on
or principal of any of such Securities because of the
reinstatement of its obligations, the Company shall be subrogated
to the rights of the Securityholders of such Securities to
receive such payment from the funds or Government Obligations
held by the Trustee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Company Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security, in any Coupon 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 Company
or of any successor, either directly or through the Company or
any successor, 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.
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SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Securityholders. Nothing in this
Indenture or in the Securities or 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, any Paying Agent and their successors hereunder, the
holders of Senior Indebtedness and the Holders of the Securities
or Coupons 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 and of the
Holders of the Securities or Coupons.
SECTION 11.3 Successors and Assigns of Company Bound
by Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee
and Securityholders. 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 Company 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 Company
is filed by the Company with the Trustee) to Dean Foods Company,
3600 North River Road, Franklin Park, IL 60131, Attention:
General Counsel. Any notice, direction, request or demand by the
Company or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes,
if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of
Registered Securities of any event such notice shall be
sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid to
such Holders as their names and addresses appear in the Security
Register within the time prescribed. 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 any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in
any notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any
notice which is mailed in the manner herein
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provided shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable
to mail notice to the Company and Securityholders 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
reasonably acceptable 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 Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or 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 and the
definitions herein relating thereto, (b) a brief statement as to
the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with
and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of
the Company 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 or
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information with respect to which is in the possession of the
Company, upon the certificate, statement or opinion of or
representations by an officer or officers of the Company, unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of
the Company or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Company, 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.
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays. Unless otherwise specified in a Security, 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. 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 by
the Trust Indenture Act, such required provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture
and each Security and any Coupon appertaining thereto 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.
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; Gender. The Article
and Section headings herein and the Table of Contents are for
convenience only and shall not affect the
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construction hereof. The use of the masculine, feminine or
neuter gender herein shall not limit in any way the applicability
of any term or provision hereof.
SECTION 11.11 Securities in a Foreign Currency or in
ECU. Unless otherwise specified in an Officers' 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
Company and all Holders.
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ARTICLE XII
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 final 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 Company to
redeem any Securities shall be evidenced by, or pursuant to, a
resolution of the Board of Directors. Notice of redemption to
the Holders of Registered Securities of any Series required to be
redeemed or to be redeemed as a whole or in part at the option of
the Company shall be given by giving notice of such redemption as
provided in Section 11.4, 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. 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, 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 at such
addresses as were so furnished to the Trustee (and, in the case
of any such notice given by the Company, the Trustee shall make
such information available to the Company 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 3.5, 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 date fixed for redemption, the "CUSIP" number or
numbers for such Securities, 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
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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. If less than all of the Securities of any Series are to
be redeemed, the notice of redemption shall specify the numbers
of the Securities of such Series to be redeemed. In case any
Security of a Series is to be redeemed in part, 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 Company shall be given by the
Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company. If such notice is to be given
by the Trustee, the Company shall provide notice of such
redemption to the Trustee at least 45 days prior to the date
fixed for redemption (unless a shorter notice shall be
satisfactory to the Trustee). If such notice is given by the
Company, the Company shall provide a copy of such notice given to
the Holders of such redemption to the Trustee at least 2 days
prior to the date such notice is given to such Holders, but in
any event at least 15 days prior to the date fixed for redemption
(unless a shorter notice shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not
later than the redemption date specified in the notice of
redemption given as provided in this Section, the Company will
have on deposit with the Trustee or with one or more Paying
Agents (or, if the Company is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 3.3) in
funds available on such date, 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 Company, the Company will deliver
to the Trustee at least 60 days prior to the date fixed for
redemption an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed.
If less than all the Securities of a Series are to be
redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair, Securities of such Series to be
redeemed in whole or in part and the Trustee shall promptly
notify the Company in writing of the Securities of such Series
selected for redemption and, in the case of any
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Securities of such Series selected for partial redemption, the
principal amount thereof to be redeemed. However, if less than
all the Securities of any Series with differing issue dates,
interest rates and stated maturities are to be redeemed, the
Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing
thereof at least 45 days prior to the relevant redemption date.
Securities may be redeemed in part in multiples equal to the
minimum authorized denomination for Securities of such Series or
any multiple thereof. For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the
redemption of Securities of any Series 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. If any Security selected for partial
redemption is surrendered for conversion after such selection,
the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption.
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 Company 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 6.1 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 Company 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 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 Section 2.7 hereof.
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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.
Upon presentation of any Security redeemed in part
only, the Company shall execute and the Trustee shall
authenticate and make available for delivery to or on the order
of the Holder thereof, at the expense of the Company, a new
Security or Securities, 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 a
written statement signed by an authorized officer of the Company
and delivered to the Trustee at least 30 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 Company 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 Company.
SECTION 12.5 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of 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 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 Company 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 Company or receive credit for Securities of
such Series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Company 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 Company through any optional
redemption provision contained in the terms of such
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<PAGE> 76
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 sixtieth day next preceding each
sinking fund payment date for any Series of Securities, the
Company will deliver to the Trustee a written statement (which
need not contain the statements required by Section 11.5) signed
by an authorized officer of the Company (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by
payment of cash (except as otherwise specified pursuant to
Section 2.3 for the Securities of such Series), and the portion
to be satisfied by delivery or credit of Securities of such
Series, (b) stating that none of the Securities of such Series
for which credit is sought 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, (d) stating whether
or not the Company 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 Company intends to pay on or before the next succeeding
sinking fund payment date and (e) specifying such sinking fund
payment date. Any Securities of such Series to be credited and
required to be delivered to the Trustee in order for the Company
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
written statement. Such written statement shall be irrevocable
and upon its receipt by the Trustee the Company 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 Company, on
or before any such sixtieth day, to deliver such written
statement 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 Company (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 Company 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
$100,000 (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 Company shall so request) with
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<PAGE> 77
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 $100,000 (or the
equivalent thereof in any Foreign Currency or ECU) or less and
the Company makes no such request then it shall be carried over
until a sum in excess of $100,000 (or the equivalent thereof in
any Foreign Currency or ECU), is available. The Trustee shall
select, in the manner provided in Section 12.2 and giving effect
to any exclusions required pursuant to Section 12.4, 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 possible, and shall (if requested in
writing by the Company) inform the Company of the serial numbers
of the Securities of such Series (or portions thereof) so
selected. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so notify 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 at the option of the
Company. 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.
Unless otherwise specified pursuant to Section 2.3, not
later than the sinking fund payment date, the Company shall have
paid to the Trustee in cash or shall otherwise provide in funds
available on such date for the payment of all principal and
interest accrued to the date fixed for redemption on Securities
to be redeemed on such 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 or
publish 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 or publication of notice
of redemption of any Securities shall theretofore have been made,
the Trustee
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<PAGE> 78
shall redeem or cause to be redeemed such Securities, provided
that it shall have received from the Company 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 V and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in
Section 5.9 or the default cured on or before the sixtieth 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.
SECTION 12.6 Repayment at the Option of the Holders.
Securities of any Series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in
accordance with the terms of the Securities of such Series.
The repayment of any principal amount of Securities
pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section
10.1, shall not operate as a payment, redemption or satisfaction
of the indebtedness represented by such Securities unless and
until the Company, at its option, shall deliver or surrender the
same to the Trustee with a directive that such Securities be
cancelled.
ARTICLE XIII
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior
Indebtedness. The Company covenants and agrees that anything in
this Indenture or the Securities of any Series to the contrary
notwithstanding, the indebtedness evidenced by the Securities of
each Series is subordinate and junior in right of payment to all
Senior Indebtedness to the extent provided herein, and each
Holder of Securities of each Series, by his acceptance thereof,
whether upon original issue or upon transfer or assignment
thereof, likewise covenants and agrees to the subordination
herein provided and shall be bound by the provisions hereof.
If the Company shall default in the payment of any
principal of or interest on any Senior Indebtedness when the same
becomes due and payable, whether at Maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise,
then, upon written notice of such default to the Company by the
holders of Senior Indebtedness or any
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trustee therefor, unless and until such default shall have been
cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property, securities, by setoff or
otherwise) shall be made or agreed to be made on account of the
principal of, premium, if any, on, or interest on any of the
Securities, or in respect of any redemption, retirement, purchase
or other acquisition of any of the Securities other than those
made in capital stock of the Company (or cash in lieu of
fractional shares thereof).
If (a) without the consent of the Company a court
having jurisdiction shall enter an order for relief with respect
to the Company under the Bankruptcy Code or without the consent
of the Company a court having jurisdiction shall enter a
judgment, order or decree adjudging the Company a bankrupt or
insolvent, or enter an order for relief for reorganization,
arrangement, adjustment or composition of or in respect of the
Company under the Bankruptcy Code or applicable state insolvency
law, or (b) the Company shall institute proceedings for entry of
an order for relief with respect to the Company under the
Bankruptcy Code or for an adjudication of insolvency, or shall
consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek
or consent to reorganization, arrangement, composition or relief
under the Bankruptcy Code or any applicable state law, or shall
consent to the filing of such petition or to the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator
or similar official (other than a custodian pursuant to 8
Delaware Code Section 226 or any similar statute under other state laws)
of the Company or of substantially all of its property, or the
Company shall make a general assignment for the benefit of
creditors as recognized under the Bankruptcy Code, then all
Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) shall first be
paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any Holder of any
Securities on account thereof. Any payment or distribution,
whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in
respect thereof under any such plan of reorganization or
readjustment) which would otherwise (but for these subordination
provisions) be payable or deliverable in respect of the
Securities of any Series shall be paid or delivered directly to
the holders of Senior Indebtedness in accordance with the
priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the
commencement of any
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such proceedings) shall have been paid in full. In the event of
any such proceeding, after payment in full of all sums owing with
respect to Senior Indebtedness, the Holder of the Securities,
together with the holders of any obligation of the Company
ranking on a parity with the Securities, shall be entitled to be
paid from the remaining assets of the Company the amounts at the
time due and owing on account of unpaid principal of and
interest, if any, on the Securities and such other obligations
before any payment or other distribution, whether in cash,
property or otherwise, shall be made on account of any capital
stock or any obligations of the Company ranking junior to the
Securities and such other obligations.
If, notwithstanding the foregoing, any payment or
distribution of any character, whether in cash, securities or
other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the
extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities
issued in respect thereof under any such plan of reorganization
or readjustment), shall be received by the Trustee or any Holder
in contravention of any of the terms hereof, such payment or
distribution or security shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Indebtedness then outstanding in
accordance with the priorities then existing among such holders
for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee
or any Holder to endorse or assign any such payment, distribution
or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
Nothing contained herein shall impair, as between the
Company and the Holders of Securities of each Series, the
obligation of the Company to pay to such Holders the principal of
and interest, if any, on such Securities or prevent the Trustee
or the Holder from exercising all rights, powers and remedies
otherwise permitted by applicable law or hereunder upon a default
or Event of Default hereunder, all subject to the rights of the
holders of the Senior Indebtedness to receive cash, securities or
other property otherwise payable or deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been
paid in full unless the holders thereof shall have received cash,
securities or other property equal to the amount of such Senior
Indebtedness then outstanding. Upon
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<PAGE> 81
the payment in full of all Senior Indebtedness, the Holders of
Securities of each Series shall be subrogated to all rights of
any holders of Senior Indebtedness to receive any further
payments or distributions applicable to the Senior Indebtedness
until the indebtedness evidenced by the Securities of such Series
shall have been paid in full, and such payments or distributions
received by such Holders, by reason of such subrogation, of cash,
securities or other property which otherwise would be paid or
distributed to the holders of Senior Indebtedness, shall as
between the Company and its creditors other than the holders of
Senior Indebtedness, on the one hand, and such Holders, on the
other hand, be deemed to be a payment by the Company on account
of Senior Indebtedness, and not on account of the Securities of
such Series.
The provisions of this Section 13.1 shall not impair
any rights, interests, remedies or powers of any secured creditor
of the Company in respect of any security interest the creation
of which is not prohibited by the provisions of this Indenture.
The securing of any obligations of the Company,
otherwise ranking on a parity with the Securities or ranking
junior to the Securities, shall not be deemed to prevent such
obligations from constituting, respectively, obligations ranking
on a parity with the Securities or ranking junior to the
Securities.
SECTION 13.2 Reliance on Certificate of Liquidating
Agent; Further Evidence as to Ownership of Senior Indebtedness.
Upon any payment or distribution of assets of the Company, the
Trustee and the Holders shall be entitled to rely upon an order
or decree issued by any court of competent jurisdiction in which
such dissolution or winding up or liquidation or reorganization
or arrangement proceedings are pending or upon a certificate of
the trustee in bankruptcy, receiver, assignee for the benefit of
creditors or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of
ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article XIII. In
the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a
written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee or representative on behalf of
such holder) as evidence that such Person is a holder of Senior
Indebtedness (or is such a trustee or representative). If the
Trustee determines, in good faith, that further evidence is
required with respect to the right
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<PAGE> 82
of any Person as a holder of Senior Indebtedness to participate
in any payment or distributions pursuant to this Article XIII,
the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, as to the extent to which such
Person is entitled to participate in such payment or
distribution, and as to other facts pertinent to the rights of
such Person under this Article XIII, and if such evidence is not
furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
SECTION 13.3 Payment Permitted If No Default. Nothing
contained in this Article XIII or elsewhere in this Indenture, or
in any of the Securities, shall prevent (a) the Company at any
time, except during the pendency of any default in the payment of
any principal of or interest on any Senior Indebtedness as
described in Section 13.1 or of any of the events described in
clauses (a) and (b) of Section 13.1, from making payments of the
principal of or interest, if any, on the Securities, or (b) the
application by the Trustee or any Paying Agent of any moneys
deposited with it hereunder to payments of the principal of or
interest, if any, on the Securities, if, at the time of such
deposit, the Trustee or such paying agent, as the case may be,
did not have the written notice provided for in Section 13.4 of
any event prohibiting the making of such deposit, or if, at the
time of such deposit (whether or not in trust) by the Company
with the Trustee or Paying Agent (other than the Company) such
payment would not have been prohibited by the provisions of this
Article XIII, and the Trustee or any Paying Agent shall not be
affected by any notice to the contrary received by it on or after
such date.
SECTION 13.4 Trustee Not Charged with Knowledge of
Prohibition. Anything in this Article XIII or elsewhere in this
Indenture to the contrary notwithstanding, the Trustee shall not
at any time be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of money to
or by the Trustee and shall be entitled to assume conclusively
that no such facts exist and that no event specified in Section
13.1 has happened, until the Trustee shall have received an
Officers' Certificate to that effect or notice in writing to that
effect signed by or on behalf of the holder or holders, or their
representatives, of Senior Indebtedness who shall have been
certified by the Company or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any
indenture pursuant to which such Senior Indebtedness shall be
outstanding; provided, however, that, if the Trustee shall not
have received the Officers' Certificate or notice provided for in
this Section 13.4 prior to the third
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<PAGE> 83
Business Day preceding the date upon which by the terms hereof
any money becomes payable (including without limitation, the
payment of either the principal of or interest, if any, on any
Security), or in the event of the execution of an instrument
pursuant to Section 10.1 acknowledging satisfaction and discharge
of this Indenture, then if prior to the third Business Day
preceding the date of such execution, the Trustee or any Paying
Agent shall not have received with respect to such money the
Officers' Certificate or notice provided for in this Section
13.4, then, anything herein to the contrary notwithstanding, the
Trustee or such Paying Agent shall have full power and authority
to receive such money and apply the same to the purpose for which
it was received and shall not be affected by any notice to the
contrary which may be received by it on or after such date. The
Company shall give prompt written notice to the Trustee and to
the Paying Agent of any facts which would prohibit the payment of
money to or by the Trustee or any Paying Agent and the Trustee
shall not be charged with knowledge of the curing of any default
or the elimination of any other fact or condition preventing such
payment or distribution unless and until the Trustee shall have
received an Officers' Certificate to such effect.
SECTION 13.5 Trustee to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination as
between such Holder and holders of Senior Indebtedness as
provided in this Article XIII and appoints the Trustee its
attorney-in-fact for any and all such purposes.
SECTION 13.6 Rights of Trustee as Holder of Senior
Indebtedness. The Trustee shall be entitled to all the rights
set forth in this Article XIII with respect to any Senior
Indebtedness which may at the time be held by it, to the same
extent as any other holder of Senior Indebtedness and nothing in
this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article XIII shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 6.7.
SECTION 13.7 Article Applicable to Paying Agents. In
case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article XIII shall in such
case (unless the context shall otherwise require) be construed as
extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if the Paying Agent were
named in this Article XIII in addition to or in place of the
Trustee; provided, however, that Sections 13.4 and 13.6 shall not
apply to the Company if it acts as paying agent.
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<PAGE> 84
SECTION 13.8 Subordination Rights Not Impaired by
Acts or Omissions of the Company or Holders of Senior
Indebtedness. No right of any present or future holders of any
Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The
holders of Senior Indebtedness may, at any time or from time to
time and in their absolute discretion, change the manner, place
or terms of payment, change or extend the time of payment of, or
renew or alter, any such Senior Indebtedness, or amend or
supplement any instrument pursuant to which any such Senior
Indebtedness is issued or by which it may be secured, or release
any security therefor, or exercise or refrain from exercising any
other of their rights under the Senior Indebtedness, including,
without limitation, the waiver of default thereunder, all without
notice to or assent from the Holders of the Securities or the
Trustee and without affecting the obligations of the Company, the
Trustee or the Holders of Securities under this Article XIII.
SECTION 13.9 Trustee Not Fiduciary for Holders of
Senior Indebtedness. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of the Senior Indebtedness, and
shall not be liable to any such holders if it shall mistakenly
pay over or distribute money or assets to Securityholders or the
Company. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this
Article XIII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this
Indenture against the Trustee.
* * * * *
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<PAGE> 85
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereto affixed and attested, all as of the day and
year first above written.
DEAN FOODS COMPANY
By: ___________________________
Name:___________________________
Title:__________________________
ATTEST:
By:_________________________
Name:_______________________
Title:______________________
[CORPORATE SEAL]
______________________________,
as Trustee
By:____________________________
Name:__________________________
Title:_________________________
ATTEST:
By:________________________
Name:______________________
Title:_____________________
[CORPORATE SEAL]
77
<PAGE> 1
EXHIBIT 4.4
[FORM OF FACE OF SUBORDINATED DEBT SECURITY]
NO.
$
CUSIP
DEAN FOODS COMPANY
________% [ ] Due ___________
Dean Foods Company, a Delaware corporation (herein called the
"Issuer", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________ or registered assigns, the principal sum of ___________ United
States Dollars on _______________, and to pay interest, semiannually on
____________ and _______________ of each year, commencing _______________, on
said principal sum, at the rate per annum specified in the title of this [ ],
on a semiannual bond equivalent basis using a 360-day year composed of twelve
30-day months from the _______________ or the ___________, as the case may be,
next preceding the date of this [ ] to which interest has been paid,
unless the date hereof is a date to which interest has been paid, in which case
from the date of this [ ], or unless no interest has been paid on
this [ ], in which case from ______________, _____________, until payment
of said principal sum has been made or duly provided for. Payments of such
principal and interest shall be made at the office or agency of the Issuer in
_____________, which, subject to the right of the Issuer to vary or terminate
the appointment of such agency, shall initially be at the principal office of
___________ [ and subject to any laws or regulations applicable thereto in the
country of any such agency and subject to the right of the Issuer to vary or
terminate the appointment of any such agency or to appoint additional and other
such agencies, at the main offices of _________ in _________]; provided, that
payment of interest may be made at the option of the Issuer by check mailed to
the address of the person entitled thereto as such address shall appear on the
Security Register. Notwithstanding the foregoing, if the date hereof is after
the ____ day of __________ or ____________, as the case may be, and before the
following __________ or ________, this [ ] shall bear interest from such
_________ or ___________; provided, that if the Issuer shall default in the
payment of interest due on such ______________ or ____________, then this
[__________] shall bear interest from the next preceding ________ or
____________, to which interest has been paid or, if no interest has been paid
on this [ ], from ___________. The interest so payable on any
_____________ or _____________, will, subject to certain
<PAGE> 2
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this [ ] is registered at
______________________________________________ at the close of business on
the ___________ or ___________, as the case may be, next preceding such
____________ or _____________.
Reference is made to the further provisions of this [___________] 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 [ ] shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, DEAN FOODS COMPANY 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.
DEAN FOODS COMPANY
By:______________________
ATTEST:
______________________________
2
<PAGE> 3
[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.
Dated: ____________________________,
as Trustee
By:_________________________
Authorized Signatory
[or]
____________________________,
as Trustee
By:________________________,
as Authentication Agent
By:_________________________
Authorized Signatory
3
<PAGE> 4
[FORM OF REVERSE OF DEBT SECURITY]
DEAN FOODS COMPANY
_______% [ ] DUE ___________
This [ ] 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 January 15, 1995
(herein called the "Indenture"), duly executed and delivered by the Issuer to
________________________ as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), 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 and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. The Securities may be issued in one or more Series, which different
Series may be issued in various aggregate principal amounts, may bear interest
at different rates, which may be fixed or variable, 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 provided in the
Indenture. This [ ] is one of a Series designated as the ____%
[ ] Due ___________ of the Issuer, limited in aggregate principal amount to
___________.
In case an Event of Default with respect to the ____% [_______] Due
___________ 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 a majority of the aggregate
principal amount of the Securities at the time Outstanding of all Series to be
affected (treated as one class), evidenced as provided in the Indenture, 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 Stated 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 interest thereon, or reduce any amount payable
upon redemption thereof, or impair or affect the right of any Holder to
institute suit for the payment thereof or, if the Securities provide therefor,
any right of repayment at the option of the Securityholder, without the consent
of the Holder of each Security so
4
<PAGE> 5
affected, or (ii) reduce the aforesaid percentage of Securities of any Series,
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 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 [ ]
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this [ ] and
any [ ] which may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this [ ]
or such other [ ].
No reference herein to the Indenture, and no provision of this [ ]
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, if
any)] and interest on this [ ] in the manner, at the respective times, at
the rate, and in the coin or currency herein prescribed.
The [ ] are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple of $1,000. As provided in
the Indenture, and subject to certain limitations set forth therein, [ ]
in registered form are exchangeable for one or more new Securities of this
Series and of like tenor, for the same aggregate principal amount and of
authorized denominations, as requested by the Holder surrendering the same at
the agency of the Issuer in ________ [or ____________]. No service charge
shall be made for any such exchange, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
[The [ ] may be redeemed at the option of the Issuer as a
whole, or from time to time in part, on any date after ____ and prior to
maturity, upon mailing a notice of such redemption not less than 15 nor more
than 60 days prior to the date fixed for redemption to the Holders of the [ ]
at their last registered addresses, all as further provided in the Indenture,
at the following redemption prices (expressed in percentages of the principal
amount) together in each case with accrued interest to the date fixed for
redemption:
5
<PAGE> 6
If redeemed during the twelve-month period beginning [_________]:
<TABLE>
<CAPTION>
Year Percentage Year Percentage
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
[The [____________________] are also subject to redemption, through
the operation of the sinking fund as herein provided on _____________ and on
each ___________ thereafter to and including _____________ on notice as set
forth above and at 100% of the principal amount thereof (the sinking fund
redemption price), together with accrued interest to the date fixed for
redemption.]
[As and for a sinking fund for the retirement of the [___________] and
so long as any of the [____________] remain outstanding and unpaid, the Issuer
will pay to the Trustee in cash (subject to the right to deliver certain
[___________________] in credit therefor as provided in the Indenture), on or
before ____________ and on or before _______________ in each year thereafter to
and including __________________ an amount sufficient to redeem $________
principal amount of the [___________________] (or such lesser amount equal to
the principal amount then Outstanding) at the sinking fund redemption price.]
[At its option the Issuer may pay into the sinking fund for the
retirement of [__________________], in cash, except as provided in the
Indenture, on or before ____________ and on or before ________________ in each
year thereafter to and including ________________, an amount sufficient to
redeem an additional principal amount of [______________________] up to but not
to exceed $____________ at the sinking fund redemption price. To the extent
that the right to such optional sinking fund payment is not exercised in any
year, it shall not be cumulative or carried forward to any subsequent year.]
Upon due presentment for registration of transfer of this [ ]
at the office or agency of the Issuer in ____________ [or __________________],
a new [ ] or [ ] of this Series 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 agent of the Issuer or the Trustee may
deem and treat the registered Holder hereof as the absolute owner of this [ ]
(whether or not this [ ] 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
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.
6
<PAGE> 7
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in this [ ]
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.
Payment of the principal of [(premium, if any)] and interest on this
[ ] is expressly subordinated in right of payment as set forth in the
Indenture, to the payment when due of all Senior Indebtedness as defined in the
Indenture, and this [ ] is issued subject to such provisions, and such
Holder of this [ ], by accepting the same, agrees to and shall be bound
by such provisions and authorizes and directs the Trustee in his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination as provided in the Indenture and appoints the Trustee his
attorney-in-fact for any and all such purposes.
The Indenture with respect to any Series will be discharged and
cancelled except for certain Sections thereof, subject to the terms of the
Indenture, upon the payment of all the Securities of such Series or upon the
irrevocable deposit with the Trustee of cash or Government Obligations (or a
combination thereof) sufficient for such payment in accordance with Article Ten
of the Indenture.
The Indenture and this [ ] shall be deemed to be
contracts made under the laws of the State of New York, and for all purposes
shall be governed by, and construed in accordance with, the laws of such State.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
7
<PAGE> 8
_______________________________________________
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number of Assignee
[__________________________________________________________] [Please Print or
Typewrite Name and Address of Assignee]
_____________________________________________________________________________
the within [ ] and hereby does irrevocably constitute and
appoint_______________________________________________ Attorney to transfer
said [ ] on the books of the within-mentioned Company, with full power of
substitution in the premises.
Dated: __________________________________________________
*
_________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the [ ] in every
particular, without alteration or
enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby requests and instructs the Company to repay this
[ ] (or portion thereof specified below) pursuant to its terms at a price
equal to the principal amount thereof, together with interest accrued to the
date of repayment, to the undersigned at:
___________________________________________________________.
(Please Print or Typewrite Name and Address of the Undersigned)
For this [ ] to be repaid the Company must receive, at the office
of the Trustee, [ ], [ ], or at such
other place or places of which the Company shall from time to time notify the
Holder of this [ ], during the period from and including [ ]
to and including the close of business on [ ] (or if [ ] is not
a Business Day, the immediately preceding Business Day), (i) this [ ] with
this "Option to Elect Repayment" form duly completed, or (ii) a communication
in the form specified above in this [ ]. The exercise of this "Option to
Elect Repayment" is irrevocable.
________________
* Your signatures must be guaranteed by a member of the Medallion System.
8
<PAGE> 9
If less than the entire principal amount of this [ ] is to be repaid,
specify the portion thereof (which shall be in increments of $1,000) which the
Holder elects to have repaid: $_________; and specify the denomination or
denominations (which shall be in increments of $1,000) of the [ ] to be
issued to the Holder for the portion of this [ ] not being repaid (in the
absence of any such specification, one such [ ] will be issued for the
portion not being repaid): $_____________.
Dated: _________________________________________________
*
________________________________________
Note: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of this
[ ] in every particular without
alteration or enlargement.
Holder's Tax I.D. Number: _________
______________
* Your signatures must be guaranteed by a member of the Medallion System.
9
<PAGE> 1
Exhibit 5
[LETTERHEAD OF KIRKLAND & ELLIS]
To Call Writer Direct:
(212) 446-4800
January 18, 1995
Dean Foods Company
3600 North River Road
Franklin Park, Illinois 60131
Ladies and Gentlemen:
We have acted as special counsel to Dean Foods Company, a
Delaware corporation (the "Company"), in connection with the proposed
registration by the Company of up to U.S. $300 million aggregate principal
amount of debt securities ("Debt Securities") pursuant to a Registration
Statement on Form S-3 filed with the Securities and Exchange Commission under
the Securities Act of 1933, as subsequently amended or supplemented (the
Registration Statement, as amended or supplemented is hereinafter referred to
as the "Registration Statement").
In connection therewith, we have examined and relied upon the
original, or copies certified to our satisfaction, of (i) the Certificate of
Incorporation and By-laws of the Company; (ii) minutes and records of the
corporate proceedings of the Company with respect to the issuance of the Debt
Securities; (iii) the Registration Statement and exhibits thereto; (iv) the
form of Indenture dated as of January 15, 1995 between the Company and Bank of
America Illinois, as trustee, relating to Senior Debt Securities (the "Senior
Indenture") and the form of Indenture dated as of January 15, 1995 between the
Company and a trustee to be named relating to Subordinated Debt Securities (the
"Subordinated Indenture," together with the Senior Indenture, the "Indenture"),
and (v) such other documents and instruments as we have deemed necessary for
the expression of the opinions contained herein.
Based on the foregoing and subject to the limitations set
forth herein, we are of the opinion that:
1. When the Board of Directors of the Company, or the
officers so authorized by the Board, has designated the type, terms and amount
of Debt Securities to be issued as contemplated by the Registration Statement,
and such Debt Securities have been duly executed on behalf of the Company, duly
authenticated and delivered by the Trustee under the applicable Indenture and
issued and paid
<PAGE> 2
Dean Foods Company
January 18, 1995
Page 2
for in accordance with the corporate proceedings of the Board of Directors or
officers so authorized by the Board, the Debt Securities will be validly issued
obligations of the Company, subject to the qualification that the
enforceability of the Securities may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting enforcement of creditors' rights generally, and enforcement thereof
may be limited by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
We are admitted to practice law in the State of New York and
express no opinion as to matters under or involving any laws other than the
laws of the State of New York, the federal laws of the United States of America
and the General Corporation Law of the State of Delaware and we express no
opinion as to matters under or involving any state securities or Blue Sky laws.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the Registration Statement
and to the reference to this firm under the caption "Legal Matters" in the
Prospectus forming a part of such Registration Statement. This opinion may not
be used, circulated, quoted or otherwise relied upon by any other person, or by
you for any other purpose, without our prior written consent.
Very truly yours,
/s/ KIRKLAND & ELLIS
KIRKLAND & ELLIS
<PAGE> 1
Exhibit 12
Dean Foods Company
Computation of Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Six Months
Ending Fiscal Years Ending May
November -----------------------------------------------
1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Income before taxes $ 62,689 $118,313 $114,759 $105,527 $124,340 $102,066
--------------------------------------------------------------
Fixed charges:
Interest expense 10,380 15,471 14,888 15,551 16,780 12,682
Debt issue costs 55 123 155 118 128 93
Portion of rentals (33%) 3,498 6,997 7,653 9,124 8,528 8,350
--------------------------------------------------------------
Total fixed charges 13,933 22,591 22,696 24,793 25,436 21,125
--------------------------------------------------------------
Earnings before taxes and
fixed charges $ 76,622 $140,904 $137,455 $130,320 $149,776 $123,191
==============================================================
Ratio of earnings to
fixed charges 5.5 6.2 6.1 5.3 5.9 5.8
==============================================================
</TABLE>
<PAGE> 1
EXHIBIT 23.1
[LETTERHEAD OF PRICE WATERHOUSE LLP]
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated June 29, 1994, which appears on page 30 of the 1994 Annual Report to
Shareholders of Dean Foods Company, which is incorporated by reference in the
Dean Foods Company's Annual Report on Form 10-K for the year ended May
29, 1994. We also consent to the incorporation by reference of our report on
the Financial Statement Schedules, which appears on page 16 of such Annual
Report on Form 10-K. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
------------------------
PRICE WATERHOUSE LLP
<PAGE> 1
EXHIBIT 25.1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2)
--------------
------------------
BANK OF AMERICA ILLINOIS
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
ILLINOIS 36-0947896
(JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER
ORGANIZATION IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
231 SOUTH LASALLE STREET, CHICAGO, ILLINOIS 60697
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
------------------
DEAN FOODS COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 36-0984820
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
3600 NORTH RIVER ROAD 60131
FRANKLIN PARK, ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
Commissioner of Banks and Trust Companies. State of Illinois,
Springfield, Illinois.
Chicago Clearing House Association, 164 W. Jackson Boulevard, Chicago,
Illinois.
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES OF
THE TRUSTEES:
AS OF JANUARY 18, 1995
<TABLE>
<CAPTION>
COL. B
COL. A AMOUNT
TITLE OF CLASS OUTSTANDING
- -------------- -----------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES WILL
RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
1
<PAGE> 3
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE TRUSTEE
IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE OF THE
OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON HAVING
ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
AS OF JANUARY 18, 1995
<TABLE>
<CAPTION>
COL. D
PERCENTAGE OF
VOTING SECURITIES
COL. C REPRESENTED BY
COL. A COL. B AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
- ------------- -------------- ------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF JANUARY 18, 1995
<TABLE>
<CAPTION>
COL. D
PERCENTAGE OF
VOTING SECURITIES
COL. C REPRESENTED BY
COL. A COL. B AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
- ------------- -------------- ------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
2
<PAGE> 4
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY THE
TRUSTEE:
AS OF JANUARY 18, 1995
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER THE
SECURITIES
ARE VOTING AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
OR NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
TITLE OF CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C.
- -------------- ------------ ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER ANY
OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF JANUARY 18, 1995
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AMOUNT AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
AND TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
AS OF JANUARY 18, 1995
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AMOUNT AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
AND TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE> 5
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF JANUARY 18, 1995
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AMOUNT AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
AND TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------ ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF JANUARY 18, 1995
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ---------------------- ------------------ --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the securities
under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to securities
outstanding under this indenture. The trustee is not a trustee under any
other indenture under which any other securities of the obligor are
outstanding.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
4
<PAGE> 6
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the certification by the Illinois Commissioner of Banks
and Trust Companies of Bank of America Illinois' Charter and Certificate of
Conversion, incorporated herein by reference to Exhibit 1 to T-1;
Registration No. 33-81660.
2. A copy of the certification by the Illinois Commissioner of Banks
and Trust Companies of Bank of America Illinois' Charter and Certificate of
Conversion, incorporated herein by reference to Exhibit 1 to T-1;
Registration No. 33-81660, includes the authority of the trustee to
commence business.
3. A copy of the certificate of authority for Bank of America Illinois
to engage in trust activities issued by the Illinois Commissioner of Banks
and Trust Companies, incorporated herein by reference to Exhibit 3 to T-1;
Registration No. 33-81660.
4. A copy of the existing By-laws of Bank of America Illinois as now
in effect, incorporated herein by reference to Exhibit 4 to T-1;
Registration No. 33-55043.
5. Not applicable.
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6 to
T-1; Registration No. 33-81660.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
BANK OF AMERICA ILLINOIS, AN ILLINOIS BANKING CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF ILLINOIS, HAS DULY CAUSED THIS STATEMENT OF
ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, ALL IN THE CITY OF CHICAGO, AND STATE OF ILLINOIS, ON THE 18TH DAY
OF JANUARY, 1995.
BANK OF AMERICA ILLINOIS
By /s/ MICHELE GALLO
------------------------------------
MICHELE GALLO
Trust Officer
5
<PAGE> 7
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank of America Illinois Call Date: 9/30/94 ST-BK: 17-1560 FFIEC 031
Address: 231 South LaSalle Street Page RC-1
City, State, Zip: Chicago, IL 60697
FDIC Certificate No.: 03622
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
<TABLE>
SCHEDULE RC -- BALANCE SHEET
C400
------------------------
DOLLAR AMOUNTS IN THOUSANDS RCFD BIL MIL THOU
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1).......................... 0081 1,862,000 1.a.
b. Interest-bearing balances(2)................................................... 0071 418,000 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)..................... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)................... 1773 868,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds sold............................................................. 0276 70,000 3.a.
b. Securities purchased under agreements to resell................................ 0277 188,000 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
---------------------------
income (from Schedule RC-C).......................... RCFD 2122 11,605,000 4.a.
b. LESS: Allowance for loan and lease losses........... RCFD 3123 266,000 4.b.
c. LESS: Allocated transfer risk reserve............... RCFD 3128 0 4.c.
---------------------------
d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a
minus 4.b
and 4.c)....................................................................... 2125 11,339,000 4.d.
5. Assets held in trading accounts................................................... 3545 1,351,000 5.
6. Premises and fixed assets (including capitalized leases).......................... 2145 199,000 6.
7. Other real estate owned (from Schedule RC-M)...................................... 2150 132,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule
RC-M)............................................................................. 2130 0 8.
9. Customers' liability to this bank on acceptance outstanding....................... 2155 50,000 9.
*10. Intangible assets (from Schedule RC-M)............................................ 2143 715,000 10.
*11. Other assets (from Schedule RC-F)................................................. 2160 1,707,000 11.
12. Total assets (sum of items 1 through 11).......................................... 2170 18,899,000 12.
</TABLE>
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
* balance revised 11/23/94
<PAGE> 8
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank of America Illinois Call Date: 9/30/94 ST-BK: 17-1560 FFIEC 031
Address: 231 South LaSalle Street Page RC-2
City, State, Zip: Chicago, IL 60697
FDIC Certificate No.: 03622
</TABLE>
SCHEDULE RC -- CONTINUED
<TABLE>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule
RC-E, part I)...................................................... RCON 2200 8,173,000 13.a
--------------------------
(1) Noninterest-bearing(1)............... RCON 6631 2,577,000 13.a.(1)
(2) Interest-bearing..................... RCON 6636 5,596,000 13.a.(2)
--------------------------
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E, part II)...................................... RCFN 2200 2,912,000 13.b.
--------------------------
(1) Noninterest-bearing.................. RCFN 6631 73,000 13.b.(1)
(2) Interest-bearing..................... RCFN 6636 2,839,000 13.b.(2)
--------------------------
14. Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds purchased........................................... RCFD 0278 578,000 14.a.
b. Securities sold under agreements to repurchase.................... RCFD 0279 99,000 14.b.
15. a. Demand notes issued to the U.S. Treasury.......................... RCON 2840 605,000 15.a.
b. Trading liabilities............................................... RCFD 3548 676,000 15.b.
16. Other borrowed money:
a. With original maturity of one year or less........................ RCFD 2332 1,744,000 16.a.
b. With original maturity of more than one year...................... RCFD 2333 44,000 16.b.
17. Mortgage indebtedness and obligations under capitalized leases....... RCFD 2910 0 17.
18. Bank's liability on acceptances executed and outstanding............. RCFD 2920 50,000 18.
19. Subordinated notes and debentures.................................... RCFD 3200 663,000 19.
20. Other liabilities (from Schedule RC-G)............................... RCFD 2930 1,226,000 20.
21. Total liabilities (sum of items 13 through 20)....................... RCFD 2948 16,770,000 21.
22. Limited-life preferred stock and related surplus..................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus........................ RCFD 3838 0 23.
24. Common stock......................................................... RCFD 3230 685,000 24.
25. Surplus (exclude all surplus related to preferred stock)............. RCFD 3839 1,452,000 25.
26. a. Undivided profits and capital reserves............................ RCFD 3632 (14,000) 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities......................................................... RCFD 8434 6,000 26.b.
27. Cumulative foreign currency translation adjustments.................. RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27).................... RCFD 3210 2,129,000 28.
29. Total liabilities, limited-life preferred stock, and equity capital
(sum of items 21, 22 and 28)......................................... RCFD 3300 18,899,000 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external auditors as of any
date during 1993..................................................... NUMBER
RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
