<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 23, 1998.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 202549
-------------
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 OF EMPLOYER IDENTIFICATION NUMBER
INCORPORATION OR ORGANIZATION
3600 NORTH RIVER ROAD
FRANKLIN PARK, IL 60131
(847) 678-1680
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDE AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ERIC A. BLANCHARD
3600 NORTH RIVER ROAD
FRANKLIN PARK, IL 60131
(847) 678-1680
(NAME, ADDRESS, INCLUDE 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 as determined
by market conditions.
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 the dividend or
interest reinvestment plans, check the following box: [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statements number of the earlier effective registration statement
for the same offering. [_]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER UNIT(1)(2) PRICE(1)(2) FEE(3)
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<S> <C> <C> <C> <C>
Debt Securities(4)....... (5) (5) (5) (5)
Common Stock, par value
$1.00 per share(6)....... (5) (5) (5) (5)
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Total(7)................. $350,000,000 100% $350,000,000 $103,250
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</TABLE>
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(1) The proposed maximum per unit and aggregate offering prices per class of
security will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities
registered hereunder.
(2) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933, as amended (the
"Securities Act").
(3) Of the $103,250 filing fee, $15,152 was previously paid in connection with
a registration statement filed earlier relating to the registration of an
aggregate of $50,000,000 of unsold securities of the Company, so that
$88,098 is being paid herewith.
(4) Subject to note (7) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from
time to time, by the Registrant. If any Debt Securities are issued at an
original issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering price
not to exceed $350,000,000 less the dollar amount of any securities
previously issued hereunder.
(5) Not required to be included in accordance with General Instruction II.D.
of Form S-3 under the Securities Act.
(6) Subject to note (7) below, there is being registered hereunder an
indeterminate number of shares of Common Stock of the Company as shall be
issuable upon conversion or redemption of Debt Securities of the Company
registered hereunder.
(7) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$350,000,000 or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies.
-------------
Pursuant to Rule 429 under the Securities Act, the Prospectus included in
this Registration Statement also relates to the Securities of the Company
previously registered under the Company's Registration Statement on Form S-3
(No. 33-57353). This Registration Statement constitutes Post-effective
Amendment No. 1 to the Company's Registration Statement on Form S-3 (No. 33-
57353).
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 THE 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.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JANUARY 23, 1998
PROSPECTUS
$350,000,000
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 $350,000,000 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
Senior Securities, when issued, will rank on a parity with all the unsecured
and unsubordinated indebtedness of the Company, and the Subordinated
Securities, when issued, will be subordinated in right of payment to the prior
payment in full of "Senior Indebtedness" (as defined herein) of the Company.
See "Description of Debt Securities--Provisions Applicable Solely to
Subordinated Securities--Subordination." 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, ranking, authorized
denominations, purchase price, maturity, interest rate (or method of
calculation) and date of payment of any interest, any terms for optional or
mandatory redemption or repurchase, any index or formula for determining the
amount of any principal, premium or interest rate, the currency or currency
unit in which principal, premium or interest is payable, whether the securities
are issuable in registered form or in the form of global securities and any
provisions for the conversion or exchange of such Debt Securities, any listing
on a securities exchange or other specific terms of, and, if applicable,
material United States federal income tax considerations relating to, the Debt
Securities in respect of which this Prospectus is being delivered (the "Offered
Securities") will be set forth in the accompanying supplement to the Prospectus
(the "Prospectus Supplement"), together with the terms of offering of the
Offered Securities.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
------------
The Offered Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. See
"Plan of Distribution." If any agents of the Company, underwriters or dealers
are involved in the sale of any Offered Securities in respect of which this
Prospectus is being delivered, the names of such agents, underwriters or
dealers and any applicable commissions or discounts and the net proceeds to the
Company will be set forth in a Prospectus Supplement.
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 , 1998.
<PAGE>
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, on the web site
(http://www.sec.gov) maintained by the Commission, or at its regional offices,
at 500 West Madison, Suite 1400, 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 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 25,
1997.
(2) The Company's Report on Form 8-K dated October 1, 1997.
(3) The Company's Quarterly Reports on Form 10-Q for the thirteen week
period ended August 24, 1997 and the twenty-six week period ended November
23, 1997.
(4) The description of the Company's Common Stock and the Common Stock
Purchase Rights associated therewith contained in the Company's
Registration Statement on Form 8-A filed under Section 12 of the Exchange
Act, dated August 1, 1988, as amended on August 8, 1988, August 10, 1988
and December 27, 1989.
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
2
<PAGE>
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 (847) 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.
3
<PAGE>
THE COMPANY
Dean Foods Company and its subsidiaries are engaged in the processing,
distribution and sales of dairy, vegetable, pickle and specialty food
products. The Company's business segments are Dairy (fluid milk and cultured
products, ice cream and extended shelf life products), Vegetables (frozen and
canned vegetables), Pickles (pickles, relishes and specialty items) and
Specialty (powdered products, sauces, refrigerated salad dressings, 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, the results of which are reported in the Specialty segment.
Acquisitions have been an important factor in the Company's strategy. The
Company generally focuses on food companies that have a well-established
reputation for quality products and services, offer complementary products and
services, or provide additional production and distribution facilities.
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 (847) 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 YEAR ENDED MAY,
ENDED ------------------------
NOVEMBER 23, 1997 1997 1996 1995 1994 1993
----------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
5.5x............................................ 5.2x (a) 5.4x 6.2x 6.1x
</TABLE>
- --------
(a) The fiscal 1996 ratio of earnings to fixed charges is less than one-to-one
due to a $150 million special charge ($97.7 million after tax), resulting
in a fixed charge coverage deficiency of $69.4 million.
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.
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 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, 1998, as
supplemented from time to time (the "Senior Indenture"), between the Company
and The Bank of New York, 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, 1998, as supplemented from time to
4
<PAGE>
time (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. Certain capitalized terms used below but not
defined herein have the meanings ascribed to them in the Indentures. The
Indentures are substantially identical, except for certain covenants of the
Company in the Senior Indenture and provisions relating to subordination and
conversion contained only in the Subordinated Indenture.
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 or encumber its assets or properties. At November 23,
1997, the Company's subsidiaries had approximately $24 million of outstanding
indebtedness, approximately $13 million of which was guaranteed by the Company
and would have constituted Senior Indebtedness.
At November 23, 1997, the Company had approximately $372 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 applicable 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
"Provisions Applicable Solely to Subordinated Securities--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 applicable 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
5
<PAGE>
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) any index used to determine
the amount of payment of principal of, and any premium and interest on, the
Offered Securities; (v) if other than 100% of the principal amount, the
percentage of their principal amount at which the Offered Securities will be
offered; (vi) the date or dates (or method of determination thereof) on which
the principal of the Offered Securities will be payable; (vii) 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; (viii) 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; (ix) 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; (x) 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; (xi) whether the Debt Securities are convertible into any
other securities and the terms and conditions of such convertibility; (xii)
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;
(xiii) 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; (xiv) 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; (xv) any
additional Event of Default; and (xvi) any other terms or conditions not
inconsistent with the provisions of the applicable 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"). Both Senior Securities and
Subordinated Securities may be issued as Original Issue Discount Debt
Securities to be offered and sold at a substantial discount below their stated
principal amount. "Original Issue Discount Debt Security" means any Debt
Security which provides for an amount less than the principal amount thereof to
be due and payable upon the declaration of acceleration of the Maturity thereof
upon the occurrence of an Event of Default and the continuation thereof.
(Section 1.1) Special United States federal income tax considerations
applicable to any such Original Issue Discount Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
applicable Prospectus Supplement.
6
<PAGE>
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.
Each 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 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
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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 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 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 (or prior to) 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 and
Lease-Back Transactions" below), would not exceed 15% of the Consolidated Net
Tangible Assets of the Company.
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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 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
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(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)
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 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
13.1, 13.4 and 13.5 of the Subordinated Indenture)
The term "Senior Indebtedness" is defined to mean (i) indebtedness or
obligations (other than the Subordinated Securities) 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 or obligation it is provided that such indebtedness or obligation
is not senior in right of payment to the Subordinated Securities, and (ii)
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 reorganization, arrangement,
adjustment or composition of
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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, premium, if any, or
interest, if any, on the Subordinated Securities. In such event, any payment
or distribution on account of the principal of, premium, if any, 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, premium, if any, 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 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 any obligations of
the Company ranking junior in right of payment to the Subordinated Securities
and such other obligations. (Section 13.1 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.
Conversion. The Subordinated Indenture may provide for a right of conversion
of Subordinated Securities into Common Stock (or cash in lieu thereof). The
following provisions will apply to Debt Securities that are convertible
Subordinated Securities unless otherwise provided in the Prospectus Supplement
relating to such Debt Securities.
The holder of any convertible Subordinated Securities will have the right
exercisable at any time prior to maturity, unless previously redeemed or
otherwise purchased by the Company, to convert such Subordinated
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Securities into shares of Common Stock at the conversion price or conversion
rate set forth in the applicable Prospectus Supplement, subject to adjustment
(Sections 12.3 and 14.2 of the Subordinated Indenture). If a Subordinated
Security is called for redemption, the holder may convert it until the close
of business on the redemption date. The holder of convertible Subordinated
Securities may convert any portion thereof which is $1,000 in principal amount
or any integral multiple thereof. (Section 14.2 of the Subordinated Indenture)
In certain events, the conversion price or conversion rate will be subject
to adjustment as set forth in the Subordinated Indenture. Such events include
the issuance of shares of Common Stock of the Company as a dividend or
distribution on the Common Stock; subdivisions, combinations and
reclassification of the Common Stock; the issuance to all holders of Common
Stock of rights or warrants entitling the holders thereof (for a period not
exceeding 45 days) to subscribe for or purchase shares of Common Stock at a
price per share less than the then current market price per share of Common
Stock (as defined in the Subordinated Indenture); and the distribution to all
holders of Common Stock of evidences of indebtedness, equity securities other
than Common Stock or other assets (excluding cash dividends paid from surplus)
or certain subscription rights or warrants (other than those referred to
above). See "Description of Capital Stock--Rights Plan." No adjustment of the
conversion price or conversion rate will be required unless an adjustment
would require a cumulative increase or decrease of at least 1% in such price
or rate (Section 14.4 of the Subordinated Indenture).
Fractional shares of Common Stock will not be issued upon conversion, but,
in lieu thereof, the Company will pay a cash adjustment based on the then
current market price for the Common Stock (Section 14.3 of the Subordinated
Indenture). Upon conversion, no adjustments will be made for accrued interest
and therefore convertible Subordinated Securities surrendered for conversion
between the record date for an interest payment and the interest payment date
(except convertible Subordinated Securities called for redemption on a
redemption date during such period) must be accompanied by payment of an
amount equal to the interest thereon which the registered holder is to
receive. No interest will be payable on any convertible Subordinated
Securities called for redemption and converted between a record date and the
open of business of the next succeeding interest payment date. (Section 14.2
and 14.4 of the Subordinated Indenture)
In the case of any consolidation or merger of the Company with or into any
other Person (with certain exceptions) or any sale or transfer of all or
substantially all the assets of the Company, the holder of convertible
Subordinated Securities, after the consolidation, merger, sale or transfer,
will have the right to convert such convertible Subordinated Securities only
into the kind and amount of securities, cash and other property which the
holder would have been entitled to receive upon such consolidation, merger,
sale or transfer, if the holder had held the Common Stock issuable upon
conversion of such convertible Subordinated Securities immediately prior to
such consolidation, merger, sale or transfer. (Section 14.5 of the
Subordinated Indenture)
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
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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 applicable Trustee may withhold such notice if such 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
applicable Trustee or the holders of not less than 25% in aggregate principal
amount of Debt Securities of that Series then outstanding may 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 of the Senior Indenture)
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)
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
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Series) will be discharged and canceled 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 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
or, if applicable, the conversion 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") and any other applicable covenants relating to the
Debt Securities of such Series ("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 applicable 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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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 Bank of New York is the Trustee under the Senior Indenture. The Trustee
may provide various commercial banking services to the Company from time to
time.
DESCRIPTION OF CAPITAL STOCK
CAPITAL STOCK
The total amount of the authorized capital stock of the Company consists of
80,000,000 shares, $1.00 par value per share, of Common Stock and 10,000,000
shares of Series Preferred Stock, par value $1.00 per share (the "Series
Preferred Stock"), of which 40,607,224 shares of Common Stock and no shares of
Series Preferred Stock were issued and outstanding as of November 23, 1997.
The Board of Directors of the Company is authorized to create and issue one or
more series of Series Preferred Stock and to determine the rights and
preferences of each Series, to the extent permitted by the Restated
Certificate of Incorporation. The issued and outstanding shares of Common
Stock are, and any shares of Common Stock to be issued on conversion of the
Subordinated Securities will be, fully paid and non-assessable. The holders of
outstanding shares of the Common Stock are entitled to receive dividends,
subject to the prior rights of any outstanding Series Preferred Stock, out of
assets legally available therefor at such times and in such amounts as the
Board of Directors may from time to time determine. The shares of Common Stock
are neither redeemable nor convertible, and the holders thereof have no
preemptive or subscription rights to purchase any securities of the Company.
Each outstanding share of Common Stock is entitled to one vote on all
matters submitted to a vote of stockholders. There is no cumulative voting.
The Board of Directors is expressly authorized to adopt, amend or repeal the
By-laws of the Company in any manner not inconsistent with the laws of the
State of Delaware or the Restated Certificate of Incorporation of the Company,
subject to the power of the stockholders (by action of holders of at least 80%
shares of stock of the Company entitled to vote generally in the election of
directors (the "Voting Stock")) to adopt, amend or repeal the By-laws, and the
Company may in its By-laws confer powers and authorities upon its Board of
Directors in addition to those conferred upon it by statute.
Upon any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, remaining net assets of the Company shall be
distributed pro rata to the holders of the Common Stock.
CERTAIN PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION AND BY-LAWS
The following summary of certain provisions of the Company's Restated
Certificate of Incorporation and By-laws does not purport to be complete and
is subject to and qualified in its entirety by reference to the Restated
Certificate of Incorporation and By-laws, which are filed as exhibits to the
Registration Statement and are hereby incorporated herein by reference.
The Restated Certificate of Incorporation of the Company provides that the
Company shall indemnify each officer and director of the Company to the
fullest extent permitted by applicable law. The Restated Certificate of
Incorporation also provides that, to the fullest extent permitted by the
Delaware General Corporation Law, a director of the Company shall not be
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director.
The Restated Certificate of Incorporation and By-laws of the Company contain
certain provisions that are intended to enhance the likelihood of continuity
and stability in the composition of the Company's Board of Directors and which
may have the effect of delaying, deferring or preventing a future takeover or
change in
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control of the Company unless such takeover or change in control is approved
by the Company's Board of Directors. Such provisions may also render the
removal of the current Board of Directors and of management more difficult.
Pursuant to the Restated Certificate of Incorporation, the Board of
Directors of the Company is divided into three classes serving staggered
three-year terms. Directors can be removed from office only for cause as
provided under the Delaware General Corporation Law and only by the
affirmative vote of the holders of a majority of the shares of Common Stock
voting at a duly convened meeting. Vacancies on the Board of Directors may be
filled by the remaining directors.
The Restated Certificate of Incorporation also provides that in the case of
certain mergers, sales of assets, issuances of securities, liquidations or
dissolutions, or reclassifications or recapitalizations involving holders of
stock representing 5% or more of the voting power (a "Related Entity") of the
then outstanding Voting Stock, such transactions must be approved by at least
80% of the combined voting power of the then outstanding Voting Stock, unless
(a) such transaction would not otherwise require a vote of stockholders, (b)
the Board of Directors shall have approved, by resolution, a memorandum of
understanding substantially consistent with such transaction prior to the time
any party to the transaction became a Related Entity or an affiliate of a
Related Entity or (c) each party to the transaction other than the Company is
a corporation of which the majority of the outstanding voting shares of common
stock are owned by the Company. The Restated Certificate of Incorporation
provides that the affirmative vote of the holders of at least 80% of the total
votes eligible to be cast in the election of directors is required to amend,
alter, change or repeal such provisions.
The requirement of a supermajority vote to approve certain corporate
transactions and certain amendments to the Restated Certificate of
Incorporation of the Company could enable a minority of the Company's
stockholders to exercise veto powers over such transactions and amendments.
Special meetings of stockholders may be called only by the Chairman of the
Board or the President of the Company, and shall be called by the Secretary of
the Company at the request in writing of either a majority of the Board of
Directors or the holders of at least 80% of the outstanding Voting Stock. The
Restated Certificate of Incorporation provides that stockholders may act only
at an annual or special meeting and stockholders may not act by written
consent unless such consent is signed by the holders of at least 80% of the
outstanding Voting Stock.
CERTAIN ANTI-TAKEOVER PROVISIONS OF DELAWARE LAW
The Company is a Delaware corporation and is subject to Section 203 of the
Delaware General Corporation Law. In general, Section 203 prevents an
"interested stockholder" (defined generally as a person owning 15% or more of
the Company's outstanding voting stock) from engaging in a "business
combination" (as defined in Section 203) with the Company (or its majority-
owned subsidiaries) for three years following the time such person became an
interested stockholder unless: (i) before such person became an interested
stockholder, the Company's Board of Directors approved the transaction in
which the interested stockholder became an interested stockholder or approved
the business combination; (ii) upon consummation of the transaction that
resulted in the interested stockholder becoming an interested stockholder, the
interested stockholder owns at least 85% of the Company's voting stock
outstanding at the time the transaction commenced (excluding stock held by
directors who are also officers of the Company and by employee stock plans
that do not provide employees with the rights to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer); or (iii) at or following the transaction in which such person
became an interested stockholder, the business combination is approved by the
Company's Board of Directors and approved at a meeting of stockholders by the
affirmative vote of the holders of at least two-thirds of the Company's
outstanding voting stock not owned by the interested stockholder. Under
Section 203, the restrictions described above also do not apply to certain
business combinations proposed by an interested stockholder following the
earlier of the announcement or notification of one of certain extraordinary
transactions involving the Company and a person who had not been
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an interested stockholder during the previous three years or who became an
interested stockholder with the approval of a majority of the Company's
directors, if such extraordinary transaction is approved or not opposed by a
majority of the directors who were directors prior to any person becoming an
interested stockholder during the previous three years or were recommended for
election or elected to succeed such directors by a majority of such directors.
RIGHTS PLAN
On July 28, 1988, the Board of Directors of the Company declared a dividend
of one preferred share purchase right (a "Right") for each outstanding share
of Common Stock of the Company. The dividend was payable on August 11, 1988
(the "Record Date") to the stockholders of record on that date. Each Right
entitles the registered holder to purchase from the Company one one-hundredth
of a share of Preferred Stock, Series A, liquidation value $100.00 per share
(the "Preferred Shares"), of the Company, at a price of $85.00 per share,
subject to adjustment (the "Purchase Price"). The description and terms of the
Rights are set forth in a Rights Agreement dated as of July 28, 1988, as
amended by the Amendment dated as of December 1, 1989 (the "Rights
Agreement"), between the Company and Harris Trust and Savings Bank, as Rights
Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following the date of public
disclosure that a person or group of affiliated or associated persons (an
"Acquiring Person") have acquired or obtained the right to acquire beneficial
ownership of 15% or more of the outstanding shares of Common Stock (the "Stock
Acquisition Date") or (ii) 10 business days following the commencement of, or
first public disclosure of an intention to commence, a tender offer or
exchange offer for securities of the Company if, upon consummation thereof,
such person could be the beneficial owner of 15% or more of such outstanding
Common Stock (the earlier of such dates being called the "Distribution Date"),
the Rights will be evidenced by such Common Stock certificate with a notation
incorporating the Rights Agreement by reference. Until the Distribution Date
(or earlier redemption or expiration of the Rights), the surrender for
transfer of any certificates for Common Stock outstanding as of the Record
Date, even without such notation, will also constitute the transfer of the
Rights associated with the Common Stock represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of
record of the Common Stock as of the Close of Business on the Distribution
Date and such separate Right certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on August 10, 1998 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed (the
"Redemption Date") by the Company, in each case, as described below.
A holder of a convertible Subordinated Security who seeks to convert it into
shares of Common Stock and receive Rights must convert such Subordinated
Security prior to the earlier of the Distribution Date, the Redemption Date or
the Final Expiration Date. The provisions of the Subordinated Indenture make
no provision for adjustment of the conversion price or conversion rate, if
any, applicable to any Series of Subordinated Securities issued thereunder
upon any further issuance of Rights (or any rights that the Company determines
to be comparable in purpose to the Rights) or upon any exercise of outstanding
Rights (or comparable rights).
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for or purchase Preferred Shares at a
price, or securities convertible into Preferred Shares with a conversion
price, less than the then current market price of the Preferred Shares or
(iii) upon the distribution to holders of the Preferred Shares of other
securities, cash (excluding regular periodic cash dividends at a rate not in
excess of 125% of the rate of the last cash dividend theretofore paid),
property, evidences of indebtedness, or assets.
The number of outstanding Rights and the number of one one-hundredths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Stock or a stock
dividend on the Common Stock payable in Common Stock or subdivisions,
consolidations or combinations of the Common Stock occurring, in any such
case, prior to the Distribution Date.
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Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a quarterly dividend
payment of $3 per share but will be entitled to an aggregate dividend of 100
times the dividend declared per share of Common Stock. In the event of
liquidation, the holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $100 per share but will be entitled to 100
times the aggregate payment made per share of Common Stock. Each Preferred
Share will have 100 votes, voting together with the Common Stock. In the event
of any merger, consolidation or other transaction in which shares of Common
Stock are exchanged, each Preferred Share will be entitled to receive 100
times the amount received per share of Common Stock. The Rights are protected
by customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of the one one-hundredth interest in a Preferred
Share purchasable upon exercise of each Right should approximate the value of
one share of Common Stock.
In the event that, after the Distribution Date, the Company is acquired in a
merger or other business combination transaction or 50% or more of its
consolidated assets or earning power are sold, proper provision will be made
so that each holder of a Right will thereafter have the right to receive, upon
the exercise thereof at the then current exercise price of the Right, that
number of shares of common stock of the acquiring company which at the time of
such transaction will have a market value of two times the exercise price of
the Right. In the event that any person becomes an Acquiring Person, proper
provision shall be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person and its affiliates and associates
(which will thereafter be void), will thereafter have the right to receive
upon exercise that number of shares of Common Stock having a market value of
two times the exercise price of the Right.
If a person acquires 15% or more of the Common Stock (a "Triggering Event"),
then the Rights will "flip-in" and entitle each holder of a Right, except as
provided below, to purchase, upon exercise at the then-current Purchase Price,
that number of shares of Common Stock having a market value of two times such
Purchase Price.
Any Rights beneficially owned at any time on or after the earlier of the
Distribution Date or the Stock Acquisition Date by an Acquiring Person or an
affiliate or associate of an Acquiring Person (whether or not such ownership
is subsequently transferred) shall become null and void upon the occurrence of
a Triggering Event, and any holder of such Rights shall have no right to
exercise such Rights.
At any time prior to the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 15% or more of the outstanding
Common Stock, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $.05 per Right (the "Redemption Price").
The redemption of the Rights may be made effective at such time, on such basis
and with such conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, except that from and
after such time as any person becomes an Acquiring Person no such amendment
may adversely affect the interests of the holders of the Rights (other than
the Acquiring Person and its affiliates and associates).
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A
dated August 1, 1988, as amended August 8, 1988, August 10, 1988 and December
27, 1989. A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights
Agreement, which is filed as an exhibit to the Registration Statement and
hereby incorporated herein by reference.
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PLAN OF DISTRIBUTION
The Company may sell the Offered Securities inside or outside the United
States through underwriters or dealers, directly to one or more purchasers, or
through agents. The Prospectus Supplement with respect to the Offered
Securities will set forth the terms of the offering of the Offered Securities,
including the name or names of any underwriters, dealers or agents, the
purchase price of the Offered Securities and the proceeds to the Company from
such sale, any delayed delivery arrangements, any underwriting discounts and
other items constituting underwriters' compensation, the initial public
offering price, any discounts or concessions allowed or re-allowed or paid to
dealers, and any securities exchange on which the Offered Securities may be
listed.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The Offered Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. The underwriter or
underwriters with respect to a particular underwritten offering of Offered
Securities will be named in the Prospectus Supplement relating to such
offering, and, if an underwriting syndicate is used, the managing underwriter
or underwriters will be set forth on the cover of such Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement relating thereto, the
obligations of the underwriters or agents to purchase the Offered Securities
will be subject to conditions precedent, and the underwriters will be
obligated to purchase all the Offered Securities if any are purchased. The
initial public offering price and any discounts or concessions allowed or re-
allowed or paid to dealers may be changed from time to time.
If dealers are used in the sale of Offered Securities with respect to which
this Prospectus is delivered, the Company will sell such Offered Securities to
the dealers as principals. The dealers may then resell such Offered Securities
to the public at varying prices to be determined by such dealers at the time
of resale. The names of the dealers and the terms of the transaction will be
set forth in the Prospectus Supplement relating thereto.
Offered Securities may be sold directly by the Company or through agents
designated by the Company from time to time at fixed prices, which may be
changed, or at varying prices determined at the time of sale. Any agent
involved in the offer or sale of the Offered Securities with respect to which
this Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement relating
thereto. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment.
Offered Securities may be sold directly by the Company to institutional
investors or others, who may be deemed to be underwriters within the meaning
of the Securities Act with respect to any resale thereof. The terms of any
such sales will be described in the applicable Prospectus Supplement.
In connection with the sale of the Offered Securities, underwriters or
agents may receive compensation from the Company or from purchasers of Offered
Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters, agents and dealers participating in
the distribution of the Offered Securities may be deemed to be underwriters,
and any discounts or commissions received by them from the Company and any
profit on the resale of the Offered Securities by them may be deemed to be
underwriting discounts or commissions under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
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Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments that such agents, dealers, or underwriters may be
required to make with respect thereto. Agents, dealers, and underwriters may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
Some or all of the Offered Securities may be new issues of securities with no
established trading market. Any underwriters to whom Offered Securities are
sold by the Company for public offering and sale may make a market in such
Offered Securities, but such underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of or the trading markets for any Offered
Securities.
Certain of the underwriters, dealers or agents and their affiliates may be
customers of, engage in transactions with and perform services for the Company
in the ordinary course of business.
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 25, 1997, 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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
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Securities and Exchange Commission registration fee............. $103,250
Rating Agency fees.............................................. $133,000
Trustees' fees.................................................. $ 10,000
Legal fees and expenses......................................... $ 50,000
Accounting fees................................................. $ 2,000
Printing and engraving.......................................... $ 30,000
Blue Sky fees and expenses (including legal fees and
disbursements)................................................. $ 10,000
Miscellaneous................................................... $ 11,750
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$350,000
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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.
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 REGISTRANT 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.
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(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 registration statement or
any material change to such information in the registration statement.
Notwithstanding the foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective 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 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in 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 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.
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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 23RD DAY
OF JANUARY, 1998.
Dean Foods Company
/s/ Howard M. Dean
By: _________________________________
Howard M. Dean
Chairman of the Board,
Chief Executive Officer and
President
EACH PERSON WHOSE SIGNATURE APPEARS BELOW HEREBY CONSTITUTES AND APPOINTS
HOWARD M. DEAN AND WILLIAM R. MCMANAMAN, 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 23RD DAY OF JANUARY, 1998.
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SIGNATURE TITLE
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<S> <C>
/s/ Howard M. Dean Chairman of the Board,
___________________________________________ Chief Executive Officer, President and
Howard M. Dean Director
/s/ William R. McManaman Vice President, Finance and Chief Financial
___________________________________________ Officer
William R. McManaman (Principal Financial Officer)
/s/ William M. Luegers, Jr. Controller (Principal Accounting Officer)
___________________________________________
William M. Luegers, Jr.
/s/ Edward A. Brennan Director
___________________________________________
Edward A. Brennan
/s/ Lewis M. Collins Director
___________________________________________
Lewis M. Collins
/s/ Paula H. Crown Director
___________________________________________
Paula H. Crown
/s/ John P. Frazee, Jr. Director
___________________________________________
John P. Frazee, Jr.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Bert A. Getz Director
___________________________________________
Bert A. Getz
/s/ Janet Hill Director
___________________________________________
Janet Hill
/s/ John S. Llewellyn, Jr. Director
___________________________________________
John S. Llewellyn, Jr.
/s/ Richard P. Mayer Director
___________________________________________
Richard P. Mayer
/s/ Andrew J. McKenna Director
___________________________________________
Andrew J. McKenna
/s/ Thomas A. Ravencroft Senior Vice President and President--Dairy
___________________________________________ Division, and Director
Thomas A. Ravencroft
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER DOCUMENT DESCRIPTION NUMBER
------- -------------------- ----------
<C> <S> <C>
1.1 Form of Underwriting Agreement Basic Provisions for
Senior Securities*
1.2 Form of Underwriting Agreement Basic Provisions for
Subordinated Securities*
3.1 Dean Foods Company Restated Certificate of Incorporation
dated February 8, 1988 (filed as Exhibit 3(a) to
Registrant's Form 10-K Annual Report for Fiscal Year
Ended May 29, 1988 and incorporated herein by reference)
3.2 By-Laws of Registrant, as amended January 26, 1996 (filed
as Exhibit 3(b)
to the Registrant's Form 10-K Annual Report for Fiscal
Year Ended May 26, 1996 and incorporated herein by
reference)
4.1 Form of Senior Indenture dated as of January 15, 1998,
between the Company and The Bank of New York, as Trustee
4.2 Form of Senior Debt Securities
4.3 Form of Subordinated Indenture
4.4 Form of Subordinated Debt Securities
4.5 Rights Agreement dated July 28, 1988 (filed as Exhibit
4(a) to the Registrant's Form 10-K Annual Report for
Fiscal Year Ended May 28, 1989 and incorporated herein by
reference)
4.6 Amendment dated December 1, 1989, to Rights Agreement
dated July 28, 1988 (filed as Exhibit 4(b) to
Registrant's Form 10-K Annual Report for Fiscal Year
Ended May 27, 1990 and incorporated herein by reference)
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-3)
25.1 Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The Bank of New York (Senior
Securities)
25.2 Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 (Subordinated Securities)*
</TABLE>
- --------
* To be filed either by amendment or as an exhibit to an Exchange Act Report
and incorporated herein by reference.
II-5
<PAGE>
EXHIBIT 4.1
DEAN FOODS COMPANY
AND
The Bank of New York,
Trustee
Senior Debt Securities
INDENTURE
Dated as of January 15, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
DEFINITIONS................................. 1
SECTION 1.1 Certain Terms Defined.......................................... 1
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........................................13
SECTION 2.6 Certificate of Authentication..................................14
SECTION 2.7 Denomination and Date of Securities; Payments of Interest......14
SECTION 2.8 Registration, Transfer and Exchange............................16
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities......19
SECTION 2.10 Cancellation of Securities; Destruction Thereof................20
SECTION 2.11 Temporary Securities...........................................20
ARTICLE III
COVENANTS OF THE COMPANY...........................21
SECTION 3.1 Payment of Principal and Interest..............................21
SECTION 3.2 Offices for Payment, etc.......................................22
SECTION 3.3 Paying Agents..................................................22
SECTION 3.4 Written Statement to Trustee...................................23
SECTION 3.5 Limitation Upon Liens..........................................23
SECTION 3.6 Limitation on Sale and Leaseback Transactions..................25
SECTION 3.7 Waiver of Certain Covenants....................................26
SECTION 3.8 Luxembourg Publications........................................26
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE............................26
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders...................................26
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists..........27
SECTION 4.3 Reports by the Company.........................................28
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.............................29
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default.............................................29
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May
Prove Debt....................................................31
SECTION 5.3 Application of Proceeds.......................................33
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings...........34
SECTION 5.5 Limitations on Suits by Securityholders.......................34
SECTION 5.6 Unconditional Right of Securityholders to Institute
Certain Suits.................................................34
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default.............................................35
SECTION 5.8 Control by Securityholders....................................35
SECTION 5.9 Waiver of Past Defaults.......................................35
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay Costs..35
SECTION 5.11 Suits for Enforcement.........................................36
ARTICLE VI
CONCERNING THE TRUSTEE............................36
SECTION 6.1 Duties of Trustee.............................................36
SECTION 6.2 Rights of Trustee.............................................37
SECTION 6.3 Individual Rights of Trustee..................................38
SECTION 6.4 Trustee's Disclaimer..........................................38
SECTION 6.5 Notice of Defaults............................................38
SECTION 6.6 Reports by Trustee to Holders.................................38
SECTION 6.7 Compensation and Indemnity....................................39
SECTION 6.8 Replacement of Trustee........................................39
SECTION 6.9 Successor Trustee by Merger...................................40
SECTION 6.10 Eligibility; Disqualification.................................40
SECTION 6.11 Preferential Collection of Claims Against Company.............40
ARTICLE VII
CONCERNING THE SECURITYHOLDERS........................41
SECTION 7.1 Evidence of Action Taken by Securityholders...................41
SECTION 7.2 Proof of Execution of Instruments.............................41
SECTION 7.3 Holders to Be Treated as Owners...............................41
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding............41
SECTION 7.5 Right of Revocation of Action Taken...........................42
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
ARTICLE VIII
SUPPLEMENTAL INDENTURES...........................42
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders....42
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.......43
SECTION 8.3 Effect of Supplemental Indenture..............................45
SECTION 8.4 Documents to Be Given to Trustee..............................45
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures..45
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE..................45
SECTION 9.1 Company May Consolidate, etc., on Certain Terms...............45
SECTION 9.2 Successor Corporation Substituted.............................46
SECTION 9.3 Opinion of Counsel to Trustee.................................46
ARTICLE X
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS.......................47
SECTION 10.1 Satisfaction and Discharge of Indenture.......................47
SECTION 10.2 Application by Trustee of Funds Deposited for Payment
of Securities.................................................50
SECTION 10.3 Repayment of Moneys Held by Paying Agent......................50
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying Agent...50
SECTION 10.5 Reinstatement of Company's Obligations........................51
ARTICLE XI
MISCELLANEOUS PROVISIONS...........................51
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability......................51
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders...........................................51
SECTION 11.3 Successors and Assigns of Company Bound by Indenture..........52
SECTION 11.4 Notices and Demands on Company, Trustee and Securityholders...52
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein.......................................52
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays...............53
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act...........................................................53
SECTION 11.8 New York Law to Govern........................................54
SECTION 11.9 Counterparts..................................................54
SECTION 11.10 Effect of Headings; Gender....................................54
SECTION 11.11 Securities in a Foreign Currency or in ECU....................54
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS................55
SECTION 12.1 Applicability of Article......................................55
SECTION 12.2 Election to Redeem; Notice of Redemption; Partial Redemptions.55
SECTION 12.3 Payment of Securities Called for Redemption...................56
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption......................................57
SECTION 12.5 Mandatory and Optional Sinking Funds..........................57
SECTION 12.6 Repayment at the Option of the Holders........................59
</TABLE>
-iv-
<PAGE>
DEAN FOODS COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of January 15, 1998
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(S)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
(S)311 (a)................................................... 6.11
(b)................................................... 6.11
(S)312 (a)................................................... 4.1 and 4.2
(b)................................................... 4.2
(c)................................................... 4.2
(S)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
(S)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
(S)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
(S)316 (a)................................................... 7.4
</TABLE>
<PAGE>
<TABLE>
<S> <C>
(a)(1)(A)............................................ 5.8
(a)(1)(B)............................................ 5.1, 5.9
(a)(2)...............................................Not Applicable
(b).................................................. 5.6
(c).................................................. 7.1
(S)317 (a)(1)............................................... 5.2
(a)(2)............................................... 5.2
(b).................................................. 3.3
(S)318 (a).................................................. 11.7
</TABLE>
- -----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
-2-
<PAGE>
THIS INDENTURE, dated as of January 15, 1998 between DEAN FOODS COMPANY, a
Delaware corporation (the "Company"), and The Bank of New York, a New York
banking Corporation (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 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
<PAGE>
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.
"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,
-2-
<PAGE>
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 101 Barclay Street, floor 21 Desk, New York, New York, 10286.
"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
Outstanding Securities of such Series.
-3-
<PAGE>
"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 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 person, 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.
-4-
<PAGE>
"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 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 or other outside counsel, 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
-5-
<PAGE>
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).
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.
-6-
<PAGE>
"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.
"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.
"United States of America" or "United States" 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.
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"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:
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This is one of the Securities of the Series designated herein and referred
to in the within-mentioned Indenture.
,
----------------------------
as Trustee
Dated: By: ,
------------------ ----------------------------
Authorized Signatory
or
,
----------------------------
as Trustee
Dated: 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;
(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);
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(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 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;
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(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;
(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
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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 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
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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
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. 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
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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, 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
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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 (A) or clause (B) below:
(A) 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 (B).
(B) 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.
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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
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
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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 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, (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 or (iii)
to register the transfer of or exchange any Security as to which a Holder has
exercised any right to require the Company to purchase such Security, in whole
or in part, except any portion thereof not required to be purchased.
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
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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 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.
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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 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
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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.
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. 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 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
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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 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.
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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.
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 Paying 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 Paying 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
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(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, prior to 10:00 a.m. on 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 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
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Consolidated Subsidiary) without effectively providing that the Securities shall
be secured by such Lien equally and ratably with (or prior to) 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
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.
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
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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.
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:
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(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 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
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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.
(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:
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(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
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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 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
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(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 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 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
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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
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.
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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 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.
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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 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;
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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.
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 of such Series 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)
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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.
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 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
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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:
(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
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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.
SECTION 6.2 Rights of Trustee. Subject to Section 6.1 and the
-----------------
provisions of the Trust Indenture Act:
(a) The Trustee may conclusively 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.
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(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 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
May 15 beginning with the May 15 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 May 15 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.
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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 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:
(A) the Trustee fails to comply with Section 6.10;
(B) the Trustee is adjudged bankrupt or insolvent;
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(C) a receiver or public officer takes charge of the Trustee or its
property; or
(D) 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 of each
Series at the time Outstanding so affected 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.
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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 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
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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 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;
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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 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
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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 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
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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 VIII 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.
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 VIII 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
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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 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 (i) 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 (ii) 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 (iii) 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 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
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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) 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, 3.6 and any other applicable
covenants 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 or
covenant, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or covenant or by reason of any
reference in any such Section or covenant 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 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
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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.
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
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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 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
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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,
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.
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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 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.
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.
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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 any
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 3.8, 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 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.
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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 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
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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.
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
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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.
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 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
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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 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.
* * * * *
-59-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
DEAN FOODS COMPANY
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
THE BANK OF NEW YORK
as Trustee
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
-60-
<PAGE>
EXHIBIT 4.2
[FORM OF FACE OF SENIOR DEBT SECURITY]
No. $
CUSIP
DEAN FOODS COMPANY
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 to 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>
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 or Authentication Agent 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: ____________________,
as Trustee
By:_______________________
Authorized Signatory
[or
____________________,
as Trustee
By:[
__________________________
[Name of Authentication Agent,
as Authentication Agent]
By:_______________________
Authorized Signatory
-2-
<PAGE>
[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, 1998
(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 (as defined in the
Indenture) 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 final maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of 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
-3-
<PAGE>
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 [ ]
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 [_________]:
Year Percentage Year Percentage]
---- ---------- ---- ----------
[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
-4-
<PAGE>
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.
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.
-5-
<PAGE>
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
-6-
<PAGE>
_______________________________________________
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number 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 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, [
], [ ], 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.
-7-
<PAGE>
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.
-8-
<PAGE>
EXHIBIT 4.3
DEAN FOODS COMPANY
AND
________________________,
Trustee
Subordinated Debt Securities
INDENTURE
Dated as of January 15, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES...................................................................... 1
RECITALS..................................................................... 1
ARTICLE I
DEFINITIONS.................................................................. 1
SECTION 1.1 Certain Terms Defined......................................... 1
Additional Rights.......................................................... 1
Additional Rights Agreement................................................ 1
Authorized Newspaper....................................................... 2
Bankruptcy Code............................................................ 2
Board of Directors......................................................... 2
Business Day............................................................... 2
Commission................................................................. 2
Common Stock............................................................... 2
Company.................................................................... 2
Company Notice............................................................. 2
Conversion Agent........................................................... 2
Conversion Price........................................................... 2
Corporate Trust Office..................................................... 2
Coupon..................................................................... 3
Date of Conversion......................................................... 3
defaulted interest......................................................... 3
defeasance................................................................. 3
Depositary................................................................. 3
Depositary Security........................................................ 3
Dollar..................................................................... 3
ECU........................................................................ 3
Event of Default........................................................... 3
Foreign Currency........................................................... 3
Government Obligations..................................................... 3
Holder..................................................................... 4
Holder of Securities....................................................... 4
Registered Holder.......................................................... 4
Securityholder............................................................. 4
Indenture.................................................................. 4
Last Sale Price............................................................ 4
Market Exchange Rate....................................................... 4
Maturity................................................................... 4
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Officers' Certificate...................................................... 4
Opinion of Counsel......................................................... 4
original issue date........................................................ 4
Original Issue Discount Security........................................... 4
Outstanding................................................................ 4
Paying Agent............................................................... 5
Person..................................................................... 5
persons.................................................................... 5
Place of Payment........................................................... 5
principal.................................................................. 5
record date................................................................ 5
Registered Global Security................................................. 5
Registered Security........................................................ 6
Responsible Officer........................................................ 6
Rights..................................................................... 6
Rights Agreement........................................................... 6
Security................................................................... 6
Securities................................................................. 6
Security Register.......................................................... 6
Senior Indebtedness........................................................ 6
Series..................................................................... 6
Series of Securities....................................................... 6
Stated Maturity............................................................ 6
Trading Day................................................................ 6
Trust Indenture Act........................................................ 6
TIA........................................................................ 6
Trustee.................................................................... 6
United States of America................................................... 7
Unregistered Security...................................................... 7
U.S. Person................................................................ 7
vice president............................................................. 7
ARTICLE II
SECURITIES................................................................... 7
SECTION 2.1 Forms Generally............................................. 7
SECTION 2.2 Form of Trustee's Certificate of Authentication............. 7
SECTION 2.3 Amount Unlimited; Issuable in Series........................ 8
SECTION 2.4 Authentication and Delivery of Securities...................11
SECTION 2.5 Execution of Securities.....................................12
SECTION 2.6 Certificate of Authentication...............................13
SECTION 2.7 Denomination and Date of Securities; Payments of Interest...13
SECTION 2.8 Registration, Transfer and Exchange.........................15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities...18
SECTION 2.10 Cancellation of Securities; Destruction Thereof.............19
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
SECTION 2.11 Temporary Securities.........................................19
ARTICLE III
COVENANTS OF THE COMPANY.....................................................20
SECTION 3.1 Payment of Principal and Interest...........................20
SECTION 3.2 Offices for Payment, etc....................................21
SECTION 3.3 Paying Agents...............................................21
SECTION 3.4 Written Statement to Trustee................................22
SECTION 3.5 Luxembourg Publications.....................................23
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE.............................................23
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders................................23
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.......23
SECTION 4.3 Reports by the Company......................................24
ARTICLE V
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT........................................25
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default..................................................25
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May Prove
Debt........................................................27
SECTION 5.3 Application of Proceeds.....................................29
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings.........30
SECTION 5.5 Limitations on Suits by Securityholders.....................30
SECTION 5.6 Unconditional Right of Securityholders to Institute Certain
Suits.......................................................31
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default..................................................31
SECTION 5.8 Control by Securityholders..................................31
SECTION 5.9 Waiver of Past Defaults.....................................32
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay
Costs.......................................................32
SECTION 5.11 Suits for Enforcement.......................................32
ARTICLE VI
CONCERNING THE TRUSTEE.......................................................33
SECTION 6.1 Duties of Trustee...........................................33
SECTION 6.2 Rights of Trustee...........................................34
SECTION 6.3 Individual Rights of Trustee................................34
SECTION 6.4 Trustee's Disclaimer........................................35
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
SECTION 6.5 Notice of Defaults..........................................35
SECTION 6.6 Reports by Trustee to Holders...............................35
SECTION 6.7 Compensation and Indemnity..................................35
SECTION 6.8 Replacement of Trustee......................................36
SECTION 6.9 Successor Trustee by Merger.................................37
SECTION 6.10 Eligibility; Disqualification...............................37
SECTION 6.11 Preferential Collection of Claims Against Company...........37
ARTICLE VII
CONCERNING THE SECURITYHOLDERS...............................................37
SECTION 7.1 Evidence of Action Taken by Securityholders.................37
SECTION 7.2 Proof of Execution of Instruments...........................38
SECTION 7.3 Holders to Be Treated as Owners.............................38
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding..........38
SECTION 7.5 Right of Revocation of Action Taken.........................38
ARTICLE VIII
SUPPLEMENTAL INDENTURES......................................................39
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders..39
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.....40
SECTION 8.3 Effect of Supplemental Indenture............................41
SECTION 8.4 Documents to Be Given to Trustee............................42
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures..................................................42
SECTION 8.6 Subordination Unimpaired....................................42
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE....................................42
SECTION 9.1 Company May Consolidate, etc., on Certain Terms.............42
SECTION 9.2 Successor Corporation Substituted...........................42
SECTION 9.3 Opinion of Counsel to Trustee...............................43
ARTICLE X
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS.............................................43
SECTION 10.1 Satisfaction and Discharge of Indenture.....................43
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities..................................................46
SECTION 10.3 Repayment of Moneys Held by Paying Agent....................46
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying Agent.46
SECTION 10.5 Reinstatement of Company's Obligations......................47
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C>
ARTICLE XI
MISCELLANEOUS PROVISIONS.....................................................47
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability....................47
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders.............................................48
SECTION 11.3 Successors and Assigns of Company Bound by Indenture........48
SECTION 11.4 Notices and Demands on Company, Trustee and Securityholders.48
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein.....................................49
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.............50
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act.........................................................50
SECTION 11.8 New York Law to Govern......................................50
SECTION 11.9 Counterparts................................................50
SECTION 11.10 Effect of Headings; Gender..................................50
SECTION 11.11 Securities in a Foreign Currency or in ECU..................50
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS...................................51
SECTION 12.1 Applicability of Article....................................51
SECTION 12.2 Election to Redeem; Notice of Redemption; Partial
Redemptions.................................................51
SECTION 12.3 Payment of Securities Called for Redemption.................53
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption....................................53
SECTION 12.5 Mandatory and Optional Sinking Funds........................54
SECTION 12.6 Repayment at the Option of the Holders......................56
ARTICLE XIII
SUBORDINATION................................................................56
SECTION 13.1 Securities Subordinated to Senior Indebtedness..............56
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness.............58
SECTION 13.3 Payment Permitted If No Default.............................59
SECTION 13.4 Trustee Not Charged with Knowledge of Prohibition...........59
SECTION 13.5 Trustee to Effectuate Subordination.........................60
SECTION 13.6 Rights of Trustee as Holder of Senior Indebtedness..........60
SECTION 13.7 Article Applicable to Paying Agents.........................60
SECTION 13.8 Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness...............60
SECTION 13.9 Trustee Not Fiduciary for Holders of Senior Indebtedness....60
</TABLE>
-v-
<PAGE>
<TABLE>
<S> <C>
ARTICLE XIV
CONVERSION OF SECURITIES.....................................................61
SECTION 14.1 Applicability of Article....................................61
SECTION 14.2 Exercise of Conversion Privilege............................61
SECTION 14.3 Fractional Interests........................................62
SECTION 14.4 Adjustment of Conversion Price..............................62
SECTION 14.5 Continuation of Conversion Privilege in Case of Merger,
Consolidation or Sale of Assets.............................65
SECTION 14.6 Notice of Certain Events....................................66
SECTION 14.7 Taxes on Conversion.........................................67
SECTION 14.8 Company to Provide Stock....................................67
SECTION 14.9 Disclaimer of Responsibility for Certain Matters............67
SECTION 14.10 Return of Funds Deposited for Redemption of Converted
Securities..................................................68
SECTION 14.11 Rights Issued in Respect of Common Stock Issued Upon
Conversion..................................................68
</TABLE>
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<PAGE>
DEAN FOODS COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of January 15, 1998
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C>
(S)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
(S)311 (a)..................................................6.11
(b)..................................................6.11
(S)312 (a)..................................................4.1 and 4.2
(b)..................................................4.2
(c)..................................................4.2
(S)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
(S)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
(S)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
(S)316 (a)..................................................7.4
(a) (1) (A)..........................................5.8
(a) (1) (B)..........................................5.1, 5.9
</TABLE>
-vii-
<PAGE>
<TABLE>
<S> <C>
(a) (2)..............................................Not Applicable
(b)..................................................5.6
(c)..................................................7.1
(S)317 (a) (1)..............................................5.2
(a) (2)..............................................5.2
(b)..................................................3.3
(S)318 (a)..................................................11.7
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
-viii-
<PAGE>
THIS INDENTURE, dated as of January 15, 1998 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 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.
"Additional Rights" has the meaning specified in Section 14.11.
"Additional Rights Agreement" has the meaning specified in Section
14.11.
<PAGE>
"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 (S)(S)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.
"Common Stock" means the common stock, $1.00 par value per share, of
the Company.
"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.
"Conversion Agent" has the meaning specified in Section 3.2.
"Conversion Price" has the meaning specified in Section 14.4.
"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
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<PAGE>
date of execution of this Indenture is located at ___________________________
____________________.
"Coupon" means any interest coupon appertaining to a Security.
"Date of Conversion" has the meaning specified in Section 14.2.
"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 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.
"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.
-3-
<PAGE>
"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.
"Last Sale Price" has the meaning specified in Section 14.3.
"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 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;
-4-
<PAGE>
(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).
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.
-5-
<PAGE>
"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 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.
"Rights" has the meaning specified in Section 14.11.
"Rights Agreement" has the meaning specified in Section 14.11.
"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 or obligation it is provided that such indebtedness or
obligation 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.
"Trading Day" has the meaning specified in Section 14.3.
"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.
"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.
-6-
<PAGE>
"United States of America" or "United States" 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.
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:
-7-
<PAGE>
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, 12.3 or 14.2);
(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;
(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;
-8-
<PAGE>
(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) whether, and under what circumstances, the Securities of any
Series shall be convertible into Common Stock or Securities of any other
Series, or cash in lieu thereof, and, if so, the terms and conditions upon
which such conversion will be effected including the initial conversion
price or rate, the conversion period and other provisions in addition to or
in lieu of those described herein;
(n) 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);
(o) 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
-9-
<PAGE>
which the Securities are denominated, the period or periods within which,
and the terms and conditions upon which, such election may be made;
(p) 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;
(q) 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;
(r) 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;
(s) 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;
(t) 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;
(u) if the Securities of such Series do not bear interest, the
applicable dates for purposes of Section 4.1 hereof;
(v) 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;
(w) 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;
(x) any other events of default or covenants with respect to the
Securities of such Series; and
(y) 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).
-10-
<PAGE>
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;
(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.
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<PAGE>
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
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, 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.
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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 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).
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(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 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
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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 prior to the day of mailing
of the relevant notice of redemption, (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 or (iii) to register the transfer of or exchange any Security as to
which a Holder has exercised any right to require the Company to purchase such
Security, in whole or in part, except any portion thereof not required to be
purchased.
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
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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
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,
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(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 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.
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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 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
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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 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 sch 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 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
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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, (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
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to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such Paying 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.
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.
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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 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
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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.
(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:
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(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.
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
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(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 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.
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
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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 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
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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 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
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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 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
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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 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
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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 of such Series, 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.
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
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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 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.
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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:
(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.
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(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.
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
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Agent, registrar or coregistrar 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 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 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
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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;
(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.
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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 of each
Series at the time Outstanding so affected 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 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.
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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 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
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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 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 and to provide for adjustment of conversion rights pursuant to
Section 14.5;
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(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 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
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so affected or (c) modify the provisions of Article XIII or Article XIV 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.
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 VIII 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
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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.
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 VIII 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
succeed to and be substituted for the Company, with the same effect
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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.
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
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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 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 (vi)
rights of Holders to exercise any conversion rights of Securities of any Series
herein expressly provided for)), 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
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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, 10.5 and, if applicable, Article XIV, (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 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
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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 or 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 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
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.
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
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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 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
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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, 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 provided shall be conclusively
presumed to have been duly given.
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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 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.
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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.
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 any
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,
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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.
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.
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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, that on and after said date interest thereon or on the portions thereof
to be redeemed will cease to accrue and, if applicable, that on and after such
date, such Securities shall cease to be convertible into Common Stock. 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 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.
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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 such Securities shall cease from and after the date fixed for redemption
(unless an earlier date has otherwise been established for such Securities) to
be convertible into Common Stock, 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.
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
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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.
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
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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 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
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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 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
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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 (S)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 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 in right of payment 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.
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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
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 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
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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 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.
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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.
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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ARTICLE XIV
CONVERSION OF SECURITIES
SECTION 14.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any Series which are
convertible into Common Stock or, if so provided in a resolution of the Board of
Directors, Officers' Certificate or executed supplemental indenture referred to
in Sections 2.1 and 2.3 by or pursuant to which the form and terms of the
Securities of such Series were established, cash in lieu thereof, as provided by
the terms of the Securities of such Series.
SECTION 14.2 Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Security to be converted shall
surrender such Security to the Conversion Agent at any time during usual
business hours at its office or agency maintained for the purpose as provided in
Section 3.2, accompanied by a fully executed written notice, in substantially
the form set forth on the reverse of the Security, that the Holder elects to
convert such Security or a stated portion thereof constituting a multiple of
$1,000 in principal amount, and, if such Security is surrendered for conversion
during the period between the close of business on any record date for such
Security and the opening of business on the related interest payment date and
has not been called for redemption on a redemption date within such period (or
on such interest payment date), accompanied also by payment of an amount equal
to the interest payable on such interest payment date on the portion of the
principal amount of the Security being surrendered for conversion. No interest
shall be payable on any Security called for redemption which is converted
between the record date and the open of business of the next succeeding interest
payment date. Such notice shall also state the name or names (and address) in
which the certificate or certificates for shares of Common Stock shall be issued
(or to whom payment in cash in lieu of Common Stock shall be made). Securities
surrendered for conversion shall (if so required by the Company or the
Conversion Agent) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the
Conversion Agent duly executed by, the Holder or his or her attorney duly
authorized in writing. As promptly as practicable after the receipt of such
notice and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 14.7, issue and deliver at such office or
agency to such Holder, or on his or her written order, a certificate or
certificates for the number of full shares of Common Stock issuable on
conversion of such Security in accordance with the provisions of such Security
and cash, as provided in Section 14.3, in respect of any fraction of a share of
Common Stock otherwise issuable upon such conversion or, if so provided in a
resolution of the Board of Directors, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the form and terms of the Securities of such Series were established, cash
in lieu of shares of Common Stock. Such conversion shall be at the Conversion
Price in effect, and shall be deemed to have been effected, immediately prior to
the close of business on the date (herein called the "Date of Conversion") on
which such notice in proper form shall have been received by the Conversion
Agent and such Security shall have been surrendered as aforesaid, and the Person
or Persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable, if any, upon such conversion shall be deemed to
have become on the Date of Conversion the holder or holders of record of the
shares represented thereby; provided, however, that any such surrender
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on any date when the stock transfer books of the Company shall be closed shall
constitute the Person or Persons in whose name or names the certificate or
certificates for such shares are to be issued, if any, as the recordholder or
holders thereof for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open but such conversion
shall nevertheless be at the Conversion Price in effect at the close of business
on the date when such Security shall have been so surrendered with the
conversion notice in proper form. In the case of conversion of a portion, but
less than all, of a Security, the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder thereof, at the
expense of the Company, a Security or Securities in the aggregate principal
amount of the unconverted portion of the Security surrendered. Except as
otherwise expressly provided in this Indenture, no payment or adjustment shall
be made for interest accrued on any Security (or portion thereof) converted or
for dividends or distributions on any Common Stock issued upon conversion of any
Security. The right, if any, of a Holder of any Security to cause the Company
to redeem, purchase or repay such Security shall terminate upon receipt by the
Company of any notice of conversion of such Security.
SECTION 14.3 Fractional Interests. No fractions of shares or scrip
representing fractions of shares of Common Stock shall be issued upon conversion
of Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities so surrendered. If any fraction of a share
of Common Stock would, except for the provisions of this Section 14.3, be
issuable on the conversion of any Security or Securities, the Company shall make
payment in lieu thereof in cash equal to the value of such fraction computed on
the basis of the Last Sale Price of one share of Common Stock on the most recent
Trading Day prior to the Date of Conversion. "Last Sale Price" on any Trading
Day shall mean (i) the closing price regular way (or, if no closing price is
reported the average of the bid and asked prices) as reported on the New York
Stock Exchange Composite Tape, or (ii) if on such Trading Day the Common Stock
is not listed or admitted to trading on such exchange, the closing price regular
way (or, if no closing price is reported the average of the bid and asked
prices) on the principal national securities exchange on which the Common Stock
is listed or admitted to trading, or (iii) if not listed or admitted to trading
on any national securities exchange on such Trading Day, then the average of the
closing bid and asked prices as reported through the National Association of
Securities Dealers, Inc. on its NASDAQ National Market System or NASDAQ System
or a similar organization if NASDAQ is no longer reporting information, or (iv)
if the Common Stock is not listed or admitted to trading on any national
securities exchange or quoted on such National Market System or NASDAQ System on
such Trading Day, then the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose or (v) if not quoted
by any such organization on such Trading Day, the fair value of such Common
Stock on such Trading Day, as determined by the Board of Directors. The term
"Trading Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on the applicable above
mentioned exchanges or in such markets.
SECTION 14.4 Adjustment of Conversion Price. The conversion price
(herein called the "Conversion Price") for a Series of Securities shall be as
set forth in a resolution of the Board of Directors, Officers' Certificate or
executed supplemental indenture referred to in Sections
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2.1 and 2.3 by or pursuant to which the form and terms of the Securities of such
Series were established, and shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Common Stock on the Common Stock, (2) subdivide
its outstanding shares of Common Stock into a greater number of shares, (3)
combine its outstanding shares of Common Stock into a smaller number of
shares or (4) issue by reclassification of its Common Stock any shares of
capital stock of the Company, the Conversion Price in effect immediately
prior to such action shall be adjusted so that the Holder of any Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock or other capital stock of the Company
which he or she would have owned immediately following such action had such
Security been converted immediately prior thereto. An adjustment made
pursuant to this subsection (a) shall become effective immediately, except
as provided in subsection (e) below, after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or
reclassification. If as a result of an adjustment made pursuant to this
subsection (a), the Holder of any Security thereafter surrendered for
conversion shall become entitled to receive shares of two or more classes
of capital stock (including shares of Common Stock and other capital stock)
of the Company, the Board of Directors (whose determination shall be
conclusive and shall be described in a statement filed with the Trustee)
shall determine the allocation of the adjusted Conversion Price between or
among shares of such classes of capital stock or shares of Common Stock and
other capital stock.
(b) In case the Company shall issue rights or warrants to all holders
of Common Stock entitling them (for a period not exceeding 45 days from the
date of such issuance) to subscribe for or purchase shares of Common Stock
at a price per share less than the current market price per share (as
determined pursuant to subsection (d) below) of the Common Stock on the
record date mentioned below, the Conversion Price shall be adjusted to a
price, computed to the nearest cent, so that the same shall equal the price
determined by multiplying:
(1) the Conversion Price in effect immediately prior to the date
of issuance of such rights or warrants by
(2) a fraction, of which (i) the numerator shall be (A) the
number of shares of Common Stock outstanding on the date of issuance
of such rights or warrants, immediately prior to such issuance, plus
(B) the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase would
purchase at such current market price (determined by multiplying such
total number of shares by the exercise price of such rights or
warrants and dividing the product so obtained by such current market
price), and of which (ii) the denominator shall be (A) the number of
shares of Common Stock outstanding on the date of issuance of such
rights or warrants, immediately prior to such issuance, plus (B) the
number of additional shares of Common Stock which are so offered for
subscription or purchase.
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Such adjustment shall become effective immediately, except as provided in
subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all holders
of Common Stock, evidences of indebtedness, equity securities other than
Common Stock, or other assets (other than cash dividends paid out of
surplus of the Company), or shall distribute to substantially all holders
of Common Stock rights or warrants to subscribe for securities (other than
those referred to in subsection (b) above) then in each such case the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to the date of such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in subsection
(d) below) of the Common Stock on the record date mentioned below less the
then fair market value (as determined by the Board of Directors, whose
determination shall, if made in good faith, be conclusive evidence of such
fair market value) of the portion of the assets so distributed or of such
subscription rights or warrants applicable to one share of Common Stock,
and of which the denominator shall be such current market price per share
of the Common Stock. Such adjustment shall become effective immediately,
except as provided in subsection (e) below, after the record date for the
determination of stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall
be deemed to be the average of the Last Sale Prices for the 30 consecutive
Trading Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 14.4 shall require that an
adjustment be made immediately following a record date, the Company may
elect to defer the effectiveness of such adjustment (but in no event until
a date later than the effective time of the event giving rise to such
adjustment), in which case the Company shall, with respect to any Security
converted after such record date and before such adjustment shall have
become effective, (i) defer paying any cash payment pursuant to Section
14.3 or issuing to the Holder of such Security the number of shares of
Common Stock and other capital stock of the Company issuable upon such
conversion in excess of the number of shares of Common Stock and other
capital stock of the Company issuable thereupon only on the basis of the
Conversion Price prior to adjustment and (ii), not later than five Business
Days after such adjustment shall have become effective, pay to such Holder
the appropriate cash payment pursuant to Section 14.3 and issue to such
Holder the additional shares of Common Stock and other capital stock of the
Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of the
Conversion Price; provided, that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment and, provided further, that
adjustment shall be required and made in accordance with the provisions of
this Article XIV (other than this subsection (f)) not later than such time
as may
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be required in order to preserve the tax-free nature of a distribution to
the holders of Securities or Common Stock. All calculations under this
Article XIV shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be.
(g) Anything in this Section 14.4 to the contrary notwithstanding, no
adjustment need be made for rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or for rights to
purchase capital stock pursuant to any future dividend or distribution
which the Company determines to be comparable in purpose and in effect to
the dividend and subsequent distribution of Rights or Additional Rights
contemplated by the Rights Agreement or Additional Rights Agreement and no
adjustment need be made for a change in the par value or no par value of
the Common Stock.
(h) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each Conversion Agent
an Officers' Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment, and (ii) mail or cause to be mailed a
notice of such adjustment to each Holder of Securities at his address as
the same appears on either the registry books of the Company or in the
filings described in Section 4.1.
Anything in this Section 14.4 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the Conversion Price, in addition to
those required by this Section 14.4, as it in its discretion shall determine to
be advisable in order that any stock dividend, subdivision of shares,
distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
SECTION 14.5 Continuation of Conversion Privilege in Case of Merger,
Consolidation or Sale of Assets. If any of the following shall occur, namely:
(a) any consolidation or merger of the Company as a result of which the holders
of Common Stock shall be entitled to receive stock, other securities or other
assets (including cash) with respect to or in exchange for Common Stock; or (b)
sale or conveyance of all or substantially all of the property or business of
the Company as an entirety, then the Company, or such successor or purchasing
corporation, as the case may be, shall, as a condition precedent to such
consolidation, merger, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture (which shall conform to the Trust Indenture Act of 1939
as in force at the date of the execution thereof) providing that the Holder of
each convertible Security then Outstanding shall have the right to convert such
Security into the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock issuable upon
conversion of such Security immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article XIV. If, in the
case of any such consolidation, merger, sale or conveyance, the stock or other
securities and property (including cash) receivable thereupon by a holder of
shares of Common Stock includes shares of stock or other securities and property
(including cash) of a corporation other than the successor or purchasing
corporation, as the case may be, in such
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consolidation, merger, sale or conveyance, then such supplemental indenture
shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Securities
as the Board of Directors shall reasonably consider necessary by reason of the
foregoing. The provisions of this Section 14.5 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
Notice of the execution of each such supplemental indenture shall be
mailed to each Holder of Securities at his or her address as the same appears on
the registry books of the Company.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such consolidation,
merger, sale or conveyance or to any adjustment to be made with respect thereto,
but, subject to the provisions of Sections 6.1 and 6.2, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
SECTION 14.6 Notice of Certain Events. If:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Common Stock otherwise than in cash; or
(b) the Company shall authorize the granting to the holders of Common
Stock of rights to subscribe for or purchase any shares of stock of any
class or of any other rights; or
(c) the Company shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its outstanding
shares of Common Stock), or any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the
Company is required, or the sale or conveyance of all or substantially all
of the property or business of the Company; or
(d) there shall be authorized or ordered any voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, the Company shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Securities as provided in Section 3.2, and
shall cause to be mailed to each Holder of Securities, at his or her address as
it shall appear on the registry books of the Company, at least 20 days before
the date hereinafter specified (or the earlier of the dates hereinafter
specified, in the event that more than one date is specified), a notice stating
the date on which (1) a record is expected to be taken for the purpose of such
dividend, distribution or rights, or if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (2) such reclassification,
change, consolidation,
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merger, sale, conveyance, dissolution, liquidation or winding-up is expected to
become effective and the date, if any is to be fixed, as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon such
reclassification, change, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up.
SECTION 14.7 Taxes on Conversion. The Company will pay any and all
documentary, stamp or similar taxes payable to the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
the issue or delivery of shares of Common Stock on conversion of Securities
pursuant thereto; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Common Stock in a name other than that of the
Holder of the Securities to be converted (or payment of cash in lieu thereof to
a Person other than such Holder) and no such issue or delivery (or payment)
shall be made unless and until the Person requesting such issue or delivery (or
payment) has paid to the Company the amount of any such tax or has established,
to the satisfaction of the Company, that such tax has been paid. The Company
extends no protection with respect to any other taxes imposed in connection with
conversion of Securities.
SECTION 14.8 Company to Provide Stock. The Company shall reserve,
free from preemptive rights, out of its authorized but unissued shares,
sufficient shares to provide for the conversion of convertible Securities from
time to time as such Securities are presented for conversion, provided, however,
that nothing contained herein shall be construed to preclude the Company from
satisfying its obligations in respect of the conversion of Securities by
delivery of repurchased shares of Common Stock which are held in the treasury of
the Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; provided, however, that nothing in
this Section 14.8 shall be deemed to affect in any way the obligations of the
Company to convert Securities into Common Stock as provided in this Article XIV.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and non-
assessable by the Company and free of preemptive rights.
SECTION 14.9 Disclaimer of Responsibility for Certain Matters.
Neither the Trustee, the Conversion Agent nor any agent of either shall at any
time be under any duty or
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responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Conversion Price, or with respect to the
Officers' Certificate referred to in Section 14.4(h), or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee, the Conversion Agent nor any agent of
either shall be accountable with respect to the validity or value (or the kind
or amount) of any shares of Common Stock, or of any securities or property
(including cash), which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee, the Conversion Agent nor
any agent of either makes any representation with respect thereto. Neither the
Trustee, the Conversion Agent nor any agent of either shall be responsible for
any failure of the Company to issue, register the transfer of or deliver any
shares of Common Stock or stock certificates or other securities or property
(including cash) upon the surrender of any Security for the purpose of
conversion or, subject to Sections 6.1 and 6.2, to comply with any of the
covenants of the Company contained in this Article XIV.
SECTION 14.10 Return of Funds Deposited for Redemption of Converted
Securities. Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any Paying Agent for the purpose of
paying the principal of and interest, if any, on any of the Securities and which
shall not be required for such purposes because of the conversion of such
Securities, as provided in this Article XIV, shall after such conversion be
repaid to the Company by the Trustee or such Paying Agent.
SECTION 14.11 Rights Issued in Respect of Common Stock Issued Upon
Conversion. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article XIV shall be entitled to receive the appropriate number
of preferred share purchase rights (the "Rights"), if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as provided by and subject to the terms of the
Rights Agreement dated as of July 28, 1988, between the Company and Harris Trust
and Savings Bank, as Rights Agent (the "Rights Agreement"), as in effect at the
time of such conversion. In the event that the Company distributes any other
rights ("Additional Rights") pro rata to holders of Common Stock which the
Company determines to be comparable in purpose and in effect to the Rights, each
share of Common Stock issued upon conversion of Securities pursuant to this
Article XIV shall be entitled to receive the appropriate number of Additional
Rights, if any, and the certificates representing the Common Stock issued upon
such conversion shall bear such legends, if any, in each case as provided by and
subject to the terms of any rights agreement or similar agreement pursuant to
which the Additional Rights were issued ("Additional Rights Agreement"), as in
effect at the time of such conversion. Notwithstanding anything else to the
contrary in this Article XIV, there shall not be any adjustment to the
conversion privilege or conversion rate as a result of (i) the distribution of
separate certificates representing the Rights or Additional Rights, (ii) the
occurrence of certain events entitling holders of Rights or Additional Rights to
receive, upon exercise thereof, Common Stock of the Company or capital stock of
another corporation or (iii) the exercise of such Rights or Additional Rights in
accordance with the Rights Agreement or Additional Rights Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be 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]
- --------------------------------------
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EXHIBIT 4.4
[FORM OF FACE OF SUBORDINATED DEBT SECURITY]
No. $
CUSIP
DEAN FOODS COMPANY
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 to 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.
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<PAGE>
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 or Authentication Agent 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: ____________________,
as Trustee
By:___________________________
Authorized Signatory
[or
____________________,
as Trustee
By:[
______________________________
[Name of Authentication Agent,
as Authentication Agent]
By:___________________________
Authorized Signatory
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<PAGE>
[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, 1998
(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 (as defined in the
Indenture) 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 final maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of 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
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<PAGE>
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 [ ]
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 [_________]:
Year Percentage Year Percentage]
---- ---------- ---- ----------
[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
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<PAGE>
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.]
[Subject to the next two succeeding sentences, a Holder of a Security
may convert it into Common Stock of the Company at any time before the close of
business on [ ]. If the Security is called for redemption, the
Holder may convert it at any time before the close of business on the Redemption
Date. A Security in respect of which a Holder has delivered a notice of
exercise of the option to require the Company to purchase such Security may be
converted only if the notice of exercise is withdrawn in accordance with the
terms of the Indenture.
The initial Conversion Rate is _____ shares of Common Stock per $1,000
principal amount, subject to adjustment in certain events described in the
Indenture. The Company will deliver cash or a check in lieu of any fractional
share of Common Stock.
To convert a Security a Holder must (1) complete and manually sign the
conversion notice on the back of the Security (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent, (2)
surrender the Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent, the
Company or the Trustee and (4) if required, pay all transfer or similar taxes.
A Holder may convert a portion of a Security if the principal amount
of such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Common Stock except as provided in
the Indenture.
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
expiring within 45 days at less than the market price at the time of
determination; and distributions to such holders of assets or debt securities of
the Company or certain rights to purchase securities of the Company (excluding
cash dividends or distributions). However, no adjustment need be made if
Securityholders may participate in the transaction or in certain other cases.
The Company from time to time may voluntarily increase the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the
-5-
<PAGE>
Indenture, the right to convert a Security into Common Stock may be changed into
a right to convert it into securities, cash or other assets of the Company or
another person.]
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.
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.
-6-
<PAGE>
_______________________________________________
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number 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 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, [
], [ ], 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.
-7-
<PAGE>
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.
-8-
<PAGE>
[LETTERHEAD OF KIRKLAND AND ELLIS]
To Call Writer Direct:
312 861-2000
Exhibit 5
January 23, 1998
Dean Foods Company
3600 North River Road
Franklin Park, Illinois 60131
Re: Registration of Debt Securities
-------------------------------
Ladies and Gentlemen:
We are acting as special counsel to Dean Foods Company, a Delaware
corporation (the "Company"), in connection with the proposed registration by the
Company of up to $350,000,000 in aggregate principal amount of the Company's
unsecured debt securities (the "Debt Securities") and common stock, par value
$1.00 per share (the "Common Stock;" together with the Debt Securities, the
"Securities"), pursuant to a Registration Statement on Form S-3 to be filed with
the Securities and Exchange Commission (the "Commission") on or about January
23, 1998 under the Securities Act of 1933, as amended (the "Securities Act")
(such Registration Statement, as amended or supplemented, is hereinafter
referred to as the "Registration Statement"). The Debt Securities are to be
issued pursuant to the Senior Indenture (the "Senior Indenture"), dated as of
January 15, 1998, between the Company and The Bank of New York, as Trustee, or
the Subordinated Indenture (the "Subordinated Indenture;" together with the
Senior Indenture, the "Indentures"), dated as of January 15, 1998, between the
Company and a trustee to be named.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purposes of this
opinion, including (i) the corporate and organizational documents of the
Company, (ii) minutes and records of the corporate proceedings of the Company
with respect to the issuance of the Securities and (iii) the Registration
Statement and exhibits thereto.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the genuineness of
the signatures of persons signing all documents in connection with which this
<PAGE>
Dean Foods Company
January 23, 1998
Page 2
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto other than the Company, and the due authorization, execution and
delivery of all documents by the parties thereto other than the Company. As to
any facts material to the opinions expressed herein which we have not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and others.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we are of the opinion
that:
(1) The Company is a corporation existing and in good standing under
the General Corporation Law of the State of Delaware.
(2) When, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii) the
Indentures shall have been qualified pursuant to the provisions of the
Trust Indenture Act of 1939, as amended, (iii) the Debt Securities shall
have been issued in the form and containing the terms described in the
Registration Statement, the Indenture, the resolutions of the Company's
Board of Directors (or authorized committee thereof) authorizing the
foregoing and establishing the terms of any series of Debt Securities and
any legally required consents, approvals, authorizations and other orders
of the Commission and any other regulatory authorities are obtained, and
(iv) the Debt Securities have been authenticated by the Trustee, the Debt
Securities when issued will be validly issued.
Our opinions expressed above are subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law affecting the enforcement of
creditors' rights generally, (ii) general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), (iii)
public policy considerations which may limit the rights of parties to obtain
certain remedies and (iv) any laws except the laws of the State of New York and
the General Corporation Law of the State of Delaware. We advise you that issues
addressed by this letter may be governed in whole or in part by other laws, but
we express no opinion as to whether any relevant difference exists between the
laws upon which our opinions are based and any other laws which may actually
govern. For purposes of the opinions in paragraph 1, we have relied exclusively
upon a recent certificate issued by the Delaware Secretary of State, and
<PAGE>
Dean Foods Company
January 23, 1998
Page 3
such opinion is not intended to provide any conclusion or assurance beyond that
conveyed by such certificate. We have assumed without investigation that there
has been no relevant change or development between the respective dates of such
certificates and the date of this letter.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. We also consent to the reference to our firm under the
heading "Legal Matters" in the Registration Statement. In giving this consent,
we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of the rules and regulations of
the Commission.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance of the Exchange Notes.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of New York or the General Corporation Law of the State of
Delaware be changed by legislative action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes.
Yours very truly,
KIRKLAND & ELLIS
<PAGE>
EXHIBIT 23.1
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 24, 1997, which appears in the 1997 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 25, 1997. We also
consent to the incorporation by reference of our report on the Financial
Statement Schedules, which appears in 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
Dated: January 23, 1998
<PAGE>
CONFORMED COPY
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DEAN FOODS COMPANY
(Exact name of obligor as specified in its charter)
Delaware 36-0984820
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3600 North River Road
Franklin Park, IL 60131
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
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.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 21st day of January, 1998.
THE BANK OF NEW YORK
By: /s/ Walter N. Gitlin
----------------------------
Name: Walter N. Gitlin
Title: Vice President
-4-
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin.................. $ 5,004,638
Interest-bearing balances............. 1,271,514
Securities:
Held-to-maturity securities........... 1,105,782
Available-for-sale securities......... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.. 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................34,916,196
LESS: Allowance for loan and
lease losses ..............581,177
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve...... 34,334,590
Assets held in trading accounts......... 2,035,284
Premises and fixed assets (including
capitalized leases)................... 671,664
Other real estate owned................. 13,306
Investments in unconsolidated
subsidiaries and associated
companies............................. 210,685
Customers' liability to this bank on
acceptances outstanding............... 1,463,446
Intangible assets....................... 753,190
Other assets............................ 1,784,796
-----------
Total assets............................ $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices................... $27,270,824
Noninterest-bearing ......12,160,977
Interest-bearing .........15,109,847
In foreign offices, Edge and
Agreement subsidiaries, and IBFs...... 14,687,806
Noninterest-bearing .........657,479
Interest-bearing .........14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase... 1,946,099
Demand notes issued to the U.S.
Treasury.............................. 283,793
Trading liabilities..................... 1,553,539
Other borrowed money:
With remaining maturity of one year
or less............................. 2,245,014
With remaining maturity of more than
one year through three years........ 0
With remaining maturity of more than
three years......................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding................. 1,473,588
Subordinated notes and debentures....... 1,018,940
Other liabilities....................... 2,193,031
-----------
Total liabilities....................... 52,718,298
-----------
EQUITY CAPITAL
Common stock............................ 1,135,284
Surplus................................. 731,319
Undivided profits and capital
reserves.............................. 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities............................ 25,428
Cumulative foreign currency transla-
tion adjustments...................... ( 16,342)
-----------
Total equity capital.................... 4,818,697
-----------
Total liabilities and equity
capital .............................. $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot ]
Thomas A. Renyi ]-- Directors
Alan R. Griffith ]
- --------------------------------------------------------------------------------
