<PAGE>
As filed with the Securities and Exchange Commission on December 1, 1997
Registration No. 333-40925
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-1898818
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
277 PARK AVENUE
NEW YORK, NEW YORK 10172
(212) 892-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
MICHAEL A. BOYD
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
DONALDSON, LUFKIN & JENRETTE, INC.
277 PARK AVENUE
NEW YORK, NEW YORK 10172
(212) 892-3000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
COPIES TO:
DEANNA L. KIRKPATRICK
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 450-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
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 DECEMBER 1, 1997
PROSPECTUS
, 1997
$300,000,000
DONALDSON, LUFKIN & JENRETTE, INC.
DEBT SECURITIES AND PREFERRED STOCK
Donaldson Lufkin & Jenrette, Inc. (the "Company") may from time to time
offer, together or separately, (i) senior or subordinated debt securities
(the "Debt Securities") or (ii) shares of its preferred stock, par value
$0.01 per share (the "Preferred Stock"). The Debt Securities and Preferred
Stock are collectively called the "Securities."
The Securities offered pursuant to this Prospectus may be issued in one or
more series or issuances in U.S. dollars or in one or more foreign
currencies, currency units or composite currencies. The aggregate initial
public offering price of the securities to be offered by this Prospectus
shall not exceed $300,000,000 (or its equivalent in one or more foreign
currencies, currency units or composite currencies). Specific terms of the
securities in respect of which this Prospectus is being delivered (the
"Offered Securities") will be set forth in an accompanying Prospectus
Supplement (a "Prospectus Supplement"), together with the terms of the
offering of the Offered Securities, the initial price thereof and the net
proceeds from the sale thereof. The Prospectus Supplement will set forth with
regard to the particular Offered Securities, without limitation, the
following: (i) in the case of Debt Securities, the ranking as senior or
subordinated debt securities, the specific designation, aggregate principal
amount, authorized denomination, maturity, rate (which may be fixed or
variable) or method of calculation of interest and dates for payment thereof,
and any exchangeability, redemption, prepayment or sinking fund provisions
and any listing on a securities exchange and (ii) in the case of Preferred
Stock, the specific designation, number of shares, purchase price and the
rights, preferences and privileges thereof and any qualifications or
restrictions thereon (including dividends, liquidation value, voting rights,
terms for the redemption or exchange thereof and any other specific terms of
the Preferred Stock) and any listing on a securities exchange. Unless
otherwise indicated in the Prospectus Supplement, the Company does not intend
to list any of the Securities on a national securities exchange.
The Offered Securities may be offered directly, through agents designated
from time to time, through dealers or through underwriters. Such agents or
underwriters may act alone or with other agents or underwriters. See "Plan of
Distribution." Any such agents, dealers or underwriters will be set forth in
a Prospectus Supplement. If an agent of the Company, or a dealer or
underwriter is involved in the offering of the Offered Securities, the
agent's commission, dealer's purchase price, underwriter's discount and net
proceeds to the Company, as the case may be, will be set forth in, or may be
calculated from, the Prospectus Supplement. Any underwriters, dealers or
agents participating in the offering may be deemed "underwriters" within the
meaning of the Securities Act of 1933, as amended.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The registration
statement of which this Prospectus forms a part, as well as reports, proxy
statements and other information filed by the Company, may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549; 7 World Trade Center, New York,
New York 10048; and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
at prescribed rates from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549. Such material may also be
accessed electronically by means of the Commission's home page on the
Internet at http: //www.sec.gov. The Company's common stock, par value $0.10
per share (the "Common Stock"), is listed on the New York Stock Exchange,
Inc. and reports and other information concerning the Company can also be
inspected at the office of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
This Prospectus constitutes a part of the Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Offered Securities. This
Prospectus does not contain all of the information set forth in such
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Reference is made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Offered Securities. Any
statements contained herein concerning the provisions of any document filed
as an exhibit to the Registration Statement or otherwise filed with the
Commission or incorporated by reference herein are not necessarily complete,
and in each instance reference is made to the copy of such document so filed
for a more complete description of the matter involved. Each such statement
is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1996, Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997,
June 30, 1997 and September 30, 1997 and Current Reports on Form 8-K filed on
April 11, 1997, September 9, 1997, September 17, 1997 and October 16, 1997,
previously filed by the Company with the Commission, are incorporated by
reference in this Prospectus.
All documents filed by the Company after the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the termination of the offering of the Offered Securities offered hereby,
shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statements as modified
or superseded shall 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 is delivered, upon written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may
be incorporated by reference in this Prospectus (other than certain exhibits
to such documents). Requests for such documents should be directed to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York
10172, Attention: Corporate Secretary (Telephone: (212) 892-3000).
2
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USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement,
proceeds from the sale of the Offered Securities will be used by the Company
for general corporate purposes, including refinancing of existing
indebtedness and the financing of potential acquisitions, and initially may
be temporarily invested in short-term securities.
RATIOS OF EARNINGS
TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends for the
Company for the periods indicated.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------- ----------------
1992 1993 1994 1995 1996 1997
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges (1).................. 1.21 1.20 1.10 1.11 1.16 1.17
Ratio of earnings to combined
fixed charges and preferred
stock dividends (2).......... -- -- 1.09 1.10 1.16 1.17
<FN>
- ------------
(1) For the purpose of calculating the ratio of earnings to fixed charges
(i) earnings consist of income before provision for income taxes and
fixed charges and (ii) fixed charges consist of interest expense and
one-third of rental expense which is deemed representative of an
interest factor.
(2) For the purpose of calculating the ratio of earnings to combined fixed
charges and preferred stock dividends (i) earnings consist of income
before provision for income taxes and fixed charges and (ii) fixed
charges consist of interest expense and one-third of rental expense
which is deemed representative of an interest factor. No preferred
dividends were paid until 1994.
</TABLE>
3
<PAGE>
THE COMPANY
Donaldson, Lufkin & Jenrette, Inc. (the "Company) is a leading integrated
investment and merchant bank that serves institutional, corporate,
governmental and individual clients both domestically and internationally.
The Company is a holding company which conducts its business through various
subsidiaries including its principal broker-dealer subsidiary, Donaldson,
Lufkin & Jenrette Securities Corporation ("DLJSC"). The business of the
Company includes securities underwriting; sales and trading; merchant
banking; financial advisory services; investment research; correspondent
brokerage services; and asset management.
Founded in 1959, the Company initially focused on providing in-depth
investment research to institutional investors. In 1970, the Company became
the first member firm of the New York Stock Exchange ("NYSE") to be owned
publicly. Fifteen years later, the Company was purchased by The Equitable
Life Assurance Society of the United States ("Equitable Life"). Prior to
October 1995 the Company was an independently operated indirect wholly owned
subsidiary of The Equitable Companies Incorporated ("Equitable"). After the
completion of the Company's initial public offering in October 1995,
Equitable's ownership in the Company was reduced from 100% to 80.2%. At
December 31, 1996, following a sale by Equitable to AXA-UAP ("AXA") of 85,000
shares of the Company's stock, Equitable owned 79.9% of the Company's issued
and outstanding common stock. Equitable is a diversified financial services
organization and one of the world's largest investment management
organizations. AXA, a French holding company for an international group of
insurance and related financial services companies, is Equitable's largest
stockholder, beneficially owning, at December 31, 1996, $392.2 million of
Equitable's Series E convertible preferred stock and approximately 60.8% of
Equitable's outstanding common stock (without giving effect to the conversion
on August 4, 1997, of the Series E convertible preferred stock beneficially
owned by AXA).
The Company's business activities are highly integrated and constitute a
single industry segment. The assets and revenues related to the Company's
foreign operations are not significant; however the Company has begun
expanding its activities abroad. In particular, in March 1997, the Company
acquired the London based financial advisory firm Phoenix Group Limited
("Phoenix") and in October 1997 the Company acquired London Global Securities
("London Global"), a securities financing intermediary located in London.
The Company conducts its business through three principal operating
groups: the Banking Group, which includes the Company's Investment Banking,
Merchant Banking and Emerging Markets Groups and Phoenix; the Capital Markets
Group, consisting of the Company's Fixed Income, Institutional Equities and
Equity Derivatives Divisions, Autranet, a distributor of investment research
products, and Sprout, its venture capital affiliate; and the Financial
Services Group, comprised of the Pershing Division, the Investment Services
Group, the Asset Management Group and London Global.
The following table sets forth the revenues, net of all interest, of the
Company and each of its principal operating groups. Net revenues, however,
are not necessarily indicative of the profitability of each group.
NET REVENUES BY OPERATING GROUP:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------------------------
1992 1993 1994 1995 1996
---------- ---------- ---------- ---------- ---------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
Banking Group............ $ 428.4 $ 491.8 $ 390.0 $ 689.2 $ 935.8
Capital Markets Group ... 713.0 994.6 638.1 780.0 1,015.2
Financial Services
Group................... 336.9 455.3 458.2 619.5 827.6
Other ................... (26.5) (38.1) 18.6 (10.7) (21.1)
---------- ---------- ---------- ---------- ---------
Total net revenues....... $1,451.8 $1,903.6 $1,504.9 $2,078.0 $2,757.5
========== ========== ========== ========== =========
</TABLE>
4
<PAGE>
The Company currently conducts its operations through 17 offices in 14
locations in the U.S., including Atlanta, Austin, Boston, Chicago, Dallas,
Houston, Jersey City, Los Angeles, Menlo Park, Miami, New York, Oak Brook,
Philadelphia and San Francisco. The Company also has 11 international offices
located in 10 cities, including Bangalore, Buenos Aires, Geneva, Hong Kong,
London, Lugano, Mexico City, Paris, Sao Paulo and Tokyo and conducts business
through a joint venture in South Africa.
The principal executive offices of the Company are located at 277 Park
Avenue, New York, NY 10172 and its telephone number is (212) 892-3000.
5
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 150,000,000 shares
of Common Stock, par value $0.10 per share and 25,000,000 shares of Preferred
Stock, par value $0.01 per share. As of September 30, 1997, the Company had
55,808,358 shares of Common Stock and 4,000,000 shares of Series A Fixed
Adjustable Rate Preferred Stock outstanding. The following summary
description of the capital stock of the Company is qualified in its entirety
by reference to the Certificate of Incorporation and the Bylaws of the
Company, copies of which have been filed with the Commission.
COMMON STOCK
Subject to the rights of the holders of any Preferred Stock which may be
outstanding, each holder of Common Stock on the applicable record date is
entitled to receive such dividends as may be declared by the Board of
Directors out of funds legally available therefor, and, in the event of
liquidation, to share pro rata in any distribution of the Company's assets
after payment or providing for the payment of liabilities and the liquidation
preference of any outstanding Preferred Stock. Each holder of Common Stock is
entitled to one vote for each share held of record on the applicable record
date on all matters presented to a vote of stockholders, including the
election of directors. Holders of Common Stock have no cumulative voting
rights or preemptive rights to purchase or subscribe for any stock or other
securities and there are no conversion rights or redemption or sinking fund
provisions with respect to such stock. All outstanding shares of Common Stock
are fully paid and nonassessable.
The Common Stock is listed on the New York Stock Exchange under the symbol
"DLJ."
The transfer agent for the Common Stock is First Chicago Trust Company of
New York.
PREFERRED STOCK
The Company's Certificate of Incorporation authorizes 25,000,000 shares of
Preferred Stock. The Company's Board of Directors has the authority to issue
shares of Preferred Stock in one or more series and to fix, by resolution,
the terms of such securities, without any further vote or action by the
stockholders.
The applicable Prospectus Supplement will describe the following terms of
any Preferred Stock in respect of which this Prospectus is being delivered
(to the extent applicable to such Preferred Stock): (i) the specific
designation, number of shares, seniority and purchase price; (ii) any
liquidation preference per share; (iii) any date of maturity; (iv) any
redemption, repayment or sinking fund provisions; (v) any dividend rate or
rates and the dates on which any such dividends will be payable (or the
method by which such rates or dates will be determined); (vi) any voting
rights; (vii) if other than the currency of the United States of America, the
currency or currencies including composite currencies in which such Preferred
Stock is denominated and/or in which payments will or may be payable; (viii)
the method by which amounts in respect of such Preferred Stock may be
calculated and any commodities, currencies or indices, or value, rate or
price, relevant to such calculation; (ix) whether such Preferred Stock is
exchangeable and, if so, the securities or rights into which such Preferred
Stock is exchangeable, and the terms and conditions upon which such exchanges
will be effected including the initial exchange prices or rates, the exchange
period and any other related provisions; (x) the place or places where
dividends and other payments on the Preferred Stock will be payable; and (xi)
any additional voting, dividend, liquidation, redemption and other rights,
preferences, privileges, limitations and restrictions.
All shares of Preferred Stock offered hereby, or issuable upon exchange or
exercise of any Offered Securities, will, when issued, be fully paid and
non-assessable. Any shares of Preferred Stock so issued would have priority
over the Common Stock with respect to dividend or liquidation rights or both.
SERIES A FIXED ADJUSTABLE RATE PREFERRED STOCK
General. The Series A Fixed Adjustable Rate Preferred Stock (the "Series A
Preferred Stock") is a single series consisting of 4,000,000 shares with a
liquidation preference of $50 per share. The holders of Series A Preferred
Stock have no preemptive rights. The Series A Preferred Stock is not
convertible into shares of Common Stock of the Company and is fully paid and
nonassessable.
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<PAGE>
Unless otherwise specified in the Prospectus Supplement, the Series A
Preferred Stock will rank on a parity as to payment of dividends and
distribution of assets upon dissolution, liquidation or winding up of the
Company with each series of Preferred Stock issued hereunder. The Series A
Preferred Stock ranks prior to the Common Stock of the Company as to the
payment of dividends and distribution of assets upon dissolution, liquidation
or winding up of the Company.
Dividends. Dividends on the Series A Preferred Stock are payable
quarterly at the annual rate of 5.94% or $2.97 per share through November 30,
2001. After November 30, 2001, dividends on the Series A Preferred Stock are
payable at the Applicable Rate from time to time in effect. The Applicable
Rate per annum for each dividend period beginning November 30, 2001 will
generally be equal to 0.50% plus the highest of the Treasury Bill Rate, the
Ten Year Constant Maturity Rate and the Thirty Year Constant Maturity Rate
(each as defined by the terms of the Series A Preferred Stock). The
Applicable Rate per annum for each dividend period beginning November 30,
2001, will not be less than 6.44% nor greater than 12.44% (without taking
into account any adjustments as described below under "Changes in the
Dividends Received Percentage").
Dividends on the Series A Preferred Stock are cumulative and rights accrue
to the holders of the Series A Preferred Stock if the Company fails to
declare one or more dividends on the Series A Preferred Stock in any amount,
whether or not the earnings or financial condition of the Company were
sufficient to pay such dividends in whole or in part.
Changes in the Dividends Received Percentage. If one or more amendments to
the Internal Revenue Code of 1986, as amended (the "Code"), are enacted which
reduce the percentage of the dividends received deduction (currently 70%) as
specified in Section 243(a)(1) of the Code or any successor provision (the
"Dividends Received Percentage"), the amount of each dividend on each share
of the Series A Preferred Stock for dividend payments made on or after the
date of enactment of such change will generally be adjusted upward pursuant
to a specified formula set forth in the terms of the Series A Preferred
Stock.
In addition, if the Dividends Received Percentage is reduced to 50% or
less, the Company may at its option, redeem the Series A Preferred Stock as a
whole but not in part as described below. See "Redemption."
Voting Rights. The holders of shares of Series A Preferred Stock are not
entitled to vote, except as set forth below or as expressly required by
applicable law.
If the equivalent of six quarterly dividends payable on the Series A
Preferred Stock or any other class or series of preferred stock are in
default, the number of directors of the Company will be increased by two, and
the holders of the Series A Preferred Stock, voting as a single class with
the holders of shares of any other class of the Company's preferred stock
ranking on a parity with the Series A Preferred Stock upon which like voting
rights have been conferred and are exercisable, will be entitled to elect
such two directors to fill such newly-created directorships.
In addition, the affirmative vote or consent of the holders of at least 66
2/3% of the outstanding shares of the Series A Preferred Stock will be
required for any amendment of the certificate of incorporation of the Company
which will adversely affect the powers, preferences, privileges or rights of
the Series A Preferred Stock. The affirmative vote or consent of the holders
of at least 66 2/3% of the outstanding shares of the Series A Preferred Stock
and any other series of the Company's preferred stock ranking on a parity
with the Series A Preferred Stock, voting as a single class without regard to
series, will be required to issue, authorize or increase the authorized
amount of, or issue or authorize any obligation or security convertible into
or evidencing a right to purchase, any additional class or series of stock
ranking prior to the Series A Preferred Stock, or to reclassify any
authorized stock of the Company into such prior shares, but such vote will
not be required for the Company to take any such actions with respect to any
stock ranking on a parity with or junior to the Series A Preferred Stock.
Redemption. Prior to November 30, 2001, the Series A Preferred Stock is
not redeemable, except under certain limited circumstances as described
below. On or after such date, each share of Series A Preferred Stock will be
redeemable, in whole or in part, at the option of the Company, at $50 per
share,
7
<PAGE>
plus accrued and unpaid dividends. However, if the Dividends Received
Percentage is equal to or less than 50% and, as a result, the amount of
dividends on the Series A Preferred Stock will be or is adjusted as described
above under "Changes in the Dividends Received Percentage," the Company, at
its option, may redeem all, but not less than all, of the outstanding shares
of the Series A Preferred Stock notwithstanding the preceding paragraph at a
redemption price specified by the terms of the Series A Preferred Stock.
In addition, if the holders of the shares of the Series A Preferred Stock
are entitled to vote upon or consent to a merger or consolidation of the
Company, and if the Company offers to purchase all of the outstanding shares
of the Series A Preferred Stock (the "Offer"), then each holder of Series A
Preferred Stock who does not sell their shares of Series A Preferred Stock
pursuant to the Offer shall be deemed irrevocably to have voted or consented
all shares of Series A Preferred Stock owned by such holder in favor of the
merger or consolidation of the Company without any further action by the
holder. The Offer shall be at a price of $50 per share, together with accrued
and unpaid dividends, if any, to the date fixed for redemption.
Holders of Series A Preferred Stock have no right to require redemption of
the Series A Preferred Stock and the Series A Preferred Stock is not subject
to any mandatory redemption, sinking fund or other similar provisions.
Transfer Agent and Registrar. The Bank of New York is the transfer agent,
registrar, dividend disbursing agent and redemption agent for the Series A
Preferred Stock.
8
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Company's Debt Securities, may constitute either senior debt
securities ("Senior Debt Securities") or subordinated debt securities
("Subordinated Debt Securities") of the Company and will be issued in the
case of Senior Debt Securities under an indenture (the "Senior Debt
Indenture") between Donaldson, Lufkin & Jenrette, Inc., as issuer, and The
Chase Manhattan Bank, as trustee and in the case of Subordinated Debt
Securities under an indenture (the "Subordinated Debt Indenture") between
Donaldson, Lufkin & Jenrette, Inc., as issuer and The Chase Manhattan Bank,
as trustee. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures." The Chase Manhattan Bank, in its capacity
as trustee under either or both of the Indentures is referred to herein as
the "Trustee."
Copies of the Indentures have been included as exhibits to the
Registration Statement of which this Prospectus is a part and are also
available for inspection at the office of the Trustee. The Indentures are
subject to and governed by the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). Section references contained herein are to the
applicable Indenture. The following summaries of certain provisions of the
Indentures do not purport to be complete, and where reference is made to
particular provisions of the Indentures, such provisions, including
definitions of certain terms, are incorporated by reference as a part of such
summaries or terms, which are qualified in their entirety by such reference.
The Indentures are substantially identical except for provisions relating to
subordination and the Company's negative pledge.
GENERAL
Neither of the Indentures limits the aggregate principal amount of Debt
Securities which may be issued thereunder and each Indenture provides that
Debt Securities may be issued thereunder from time to time in one or more
series. The Debt Securities will be direct, unsecured senior or subordinated
obligations of the Company. Except as described under "--Negative Pledge,"
neither Indenture limits other indebtedness or securities which may be
incurred or issued by the Company or any of its subsidiaries or contains
financial or similar restrictions on the Company or any of its subsidiaries.
The operations of the Company are conducted through its subsidiaries, and,
therefore, the Company is dependent upon the earnings and cash flow of its
subsidiaries to meet its obligations, including obligations under the Debt
Securities. The Debt Securities will be effectively subordinated to all
indebtedness of the Company's subsidiaries. The Company's rights and the
rights of its creditors, including holders of Debt Securities, to participate
in the distribution of assets of any subsidiary upon such subsidiary's
liquidation or reorganization will be subject to prior claims of such
subsidiary's creditors, including trade creditors, except to the extent the
Company may itself be a creditor with recognized claims against such
subsidiary. In addition, net capital requirements under the Exchange Act and
New York Stock Exchange rules applicable to certain of the Company's
subsidiaries could limit the payment of dividends and the making of loans and
advances to the Company by such subsidiaries.
The applicable Prospectus Supplement which accompanies this Prospectus,
sets forth where applicable the following terms of, and information relating
to, the Debt Securities offered thereby: (i) the ranking of such Debt
Securities as senior or subordinated debt securities; (ii) the designation of
such Debt Securities; (iii) the aggregate principal amount of such Debt
Securities; (iv) the date or dates on which principal of and premium, if any,
on such Debt Securities is payable; (v) the rate or rates at which such Debt
Securities shall bear interest, if any, or the method by which such rate
shall be determined, and the basis on which interest shall be calculated if
other than a 360-day year consisting of twelve 30-day months, the date or
dates from which such interest will accrue and on which such interest will be
payable and the related record dates; (vi) if other than the offices of the
Trustee, the place where the principal of and any premium or interest on such
Debt Securities will be payable; (vii) any redemption, repayment or sinking
fund provisions; (viii) if other than denominations of $1,000 or multiples
thereof, the denominations in which such Debt Securities will be issuable;
(ix) if other than the principal amount thereof, the portion of the principal
amount due upon acceleration; (x) if other than U.S. dollars, the currency or
currencies (including composite currencies) in which such Debt Securities are
denominated or payable; (xi) whether
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such Debt Securities shall be issued in the form of a Global Security or
securities; (xii) any other specific terms of such Debt Securities; and
(xiii) the identity of any trustees, depositories, authenticating or paying
agents, transfer agents or registrars with respect to such Debt Securities.
(Section 2.3)
Unless otherwise specified in the accompanying Prospectus Supplement,
principal and premium, if any, will be payable, and the Debt Securities will
be transferable and exchangeable without any service charge, at the office of
the Trustee. However, the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection with any
such transfer or exchange. (Sections 2.7, 4.1 and 4.2)
Unless otherwise specified in the accompanying Prospectus Supplement,
interest on any series of Debt Securities will be payable on the interest
payment dates set forth in the accompanying Prospectus Supplement to the
persons in whose names the Debt Securities are registered at the close of
business on the related record date and will be paid, at the option of the
Company, by wire transfer or by checks mailed to such persons. (Sections 2.7,
4.1 and 4.2)
If the Debt Securities are issued as Original Issue Discount Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount, the Federal income tax consequences and other special
considerations applicable to such Original Issue Discount Securities will be
generally described in the Prospectus Supplement.
BOOK-ENTRY SYSTEM
If so specified in the accompanying Prospectus Supplement, Debt Securities
of any series may be issued under a book-entry system in the form of one or
more global Debt Securities (each a "Global Security"). Each Global Security
will be deposited with, or on behalf of a depositary, which, unless otherwise
specified in the accompanying Prospectus Supplement, will be The Depository
Trust Company, New York, New York (the "Depositary"). The Global Securities
will be registered in the name of the Depositary or its nominee.
The Depositary has advised the Company that the Depositary is a limited
purpose trust company organized under the laws of the State of New York, a
"banking organization" within the meaning of the New York banking law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of section 17A of the Exchange Act. The
Depositary was created to hold securities of its participants and to
facilitate the clearance and settlement of securities transactions among its
participants through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of
securities certificates. The Depositary's participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and
certain other organizations, some of whom (and/or their representatives) own
the Depositary. Access to the Depositary's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly.
Upon the issuance of a Global Security in registered form, the Depositary
will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such
Global Security to the accounts of participants. The accounts to be credited
will be designated by the underwriters, dealers or agents. Ownership of
beneficial interests in the Global Security will be limited to participants
or persons that may hold interests through participants. Ownership of
beneficial interests by participants in the Global Security will be shown on,
and the transfer of that ownership interest will be effected only through,
records maintained by such participants. The laws of some jurisdictions may
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to own,
transfer or pledge beneficial interest in a Global Security.
So long as the Depositary or its nominee is the registered owner of a
Global Security, it will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as set forth below, owners of a beneficial
interest in such
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Global Security will not be entitled to have the Debt Securities represented
thereby registered in their names, will not receive or be entitled to receive
physical delivery of certificates representing the Debt Securities
represented thereby and will not be considered the owners or holders thereof
under the applicable Indenture. Accordingly, each person owning a beneficial
interest in such Global Security must rely on the procedures of the
Depositary and, if such person is not a participant, on the procedures of the
participant through which such person owns its interest, to exercise any
rights of a holder under the applicable Indenture. The Company understands
that under existing practice, in the event that the Company requests any
action of a holder or a beneficial owner desires to take any action a holder
is entitled to take, the Depositary would act upon the instructions of, or
authorize, the participant to take such action.
Payment of principal of, and interest on, the Debt Securities will be made
to the Depositary or its nominee, as the case may be, as the registered owner
and holder of the Global Security representing such Debt Securities. None of
the Company, the Trustee, any paying agent or registrar for the Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal or interest on the
payment date thereof in amounts proportionate to their respective beneficial
interests in the principal amount of the Global Security as shown on the
records of the Depositary. The Company expects that payments by participants
to owners of beneficial interests in the Global Security held through such
participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers registered in "street name," and will be the responsibility of such
participants.
A Global Security may not be transferred except as a whole by the
Depositary to a nominee or successor of the Depositary or by a nominee of the
Depositary to another nominee of the Depositary. A Global Security
representing all but not part of the Debt Securities being offered pursuant
to the applicable Prospectus Supplement is exchangeable for Debt Securities
in definitive form of like tenor and terms if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as depositary for such
Global Security or if at any time the Depositary is no longer eligible to be,
or is not in good standing as, a clearing agency registered under the
Exchange Act, and in either case, a successor depositary is not appointed by
the Company within 90 days of receipt by the Company of such notice or of the
Company becoming aware of such ineligibility, or (ii) the Company in its sole
discretion at any time determines not to have all of the Debt Securities
represented by a Global Security and notifies the Trustee thereof. A Global
Security exchangeable pursuant to the preceding sentence shall be
exchangeable for Debt Securities registered in such names and in such
authorized denominations as the Depositary for such Global Security shall
direct.
SENIOR DEBT
Payment of the principal of, premium, if any, and interest on Senior Debt
Securities issued under the Senior Debt Indenture will rank pari passu with
all other unsecured and unsubordinated debt of the Company.
SUBORDINATED DEBT
Payment of the principal of, premium, if any, and interest on Subordinated
Debt Securities issued under the Subordinated Debt Indenture will be
subordinate and junior in right of payment, to the extent and in the manner
set forth in the Subordinated Debt Indenture, to all Senior Indebtedness of
the Company. The Subordinated Debt Indenture does not contain any limitation
on the amount of Senior Indebtedness that can be incurred by the Company.
The Subordinated Debt Indenture provides that no payment may be made by or
on behalf of the Company on account of any obligation or, to the extent the
subordination thereof is permitted by applicable law, claim in respect of the
Subordinated Debt Securities, including the principal of, premium, if any, or
interest on the Subordinated Debt Securities, or to redeem (or make a deposit
in redemption
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of), defease (other than payments made by the Trustee pursuant to the
provisions of the Indenture described under "--Discharge, Defeasance and
Covenant Defeasance" with respect to a defeasance permitted by the Indenture,
including the subordination provisions thereof) or acquire any of the
Subordinated Debt Securities for cash, property or securities, (i) upon the
maturity of the Designated Senior Indebtedness or any other Senior
Indebtedness with an aggregate principal amount in excess of $1.0 million by
lapse of time, acceleration or otherwise, unless and until all principal of,
premium, if any, and interest on such Senior Indebtedness and all other
obligations in respect thereof are first paid in full in cash or cash
equivalents or such payment is duly provided for, or unless and until any
such maturity by acceleration has been rescinded or waived or (ii) in the
event of default in the payment of any principal of, premium, if any, or
interest on or any other amount payable in respect of the Designated Senior
Indebtedness or any other Senior Indebtedness with an aggregate principal
amount in excess of $1.0 million when it becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise,
unless and until such payment default has been cured or waived or has
otherwise ceased to exist.
Upon the happening of a default (any event that, after notice or passage
of time would be an event of default) or an event of default (any event that
permits the holders of Senior Indebtedness or their representative or
representatives immediately to accelerate its maturity) with respect to any
Senior Indebtedness, other than a default in payment of the principal of,
premium, if any, or interest on such Senior Indebtedness, upon written notice
of such default or event of default given to the Company and the Trustee by
the holders of a majority of the principal amount outstanding of the
Designated Senior Indebtedness or their representative or, at such time as
there is no Designated Senior Indebtedness, by the holders of a majority of
the principal amount outstanding of all Senior Indebtedness or their
representative or representatives or, if such default or event of default
results from the acceleration of the Subordinated Debt Securities,
immediately upon such acceleration, then, unless and until such default or
event of default has been cured or waived or otherwise has ceased to exist,
no payment may be made by or on behalf of the Company with respect to any
obligation or claim in respect of the Subordinated Debt Securities, including
the principal of, premium, if any, or interest on the Subordinated Debt
Securities or to redeem (or make a deposit in redemption of), defease or
acquire any of the Subordinated Debt Securities for cash, property or
securities. Notwithstanding the foregoing, unless the Senior Indebtedness in
respect of which such default or event of default exists has been declared
due and payable in its entirety within 180 days after the date written notice
of such default or event of default is delivered as set forth above or the
date of such acceleration as the case may be (the "Payment Blockage Period"),
and such declaration or acceleration has not been rescinded, the Company
shall be required then to pay all sums not paid to the Holders of the
Subordinated Debt Securities during the Payment Blockage Period due to the
foregoing prohibitions and to resume all other payments as and when due on
the Subordinated Debt Securities. Any number of such notices may be given;
provided however, that (i) during any 360 consecutive days, only one Payment
Blockage Period shall commence and (ii) any such default or event of default
that existed upon the commencement of a Payment Blockage Period may not be
the basis for the commencement of any other Payment Blockage Period, unless
such default or event of default shall have been cured or waived for a period
of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company from any source whether in cash,
property or securities, shall be received by the Trustee or the Holders on
account of any obligation or claim in respect of the Subordinated Debt
Securities at a time when such payment or distribution is prohibited by the
foregoing provisions, such payment or distribution shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such Holders, as the case may be, to the holders
of the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full
in cash or cash equivalents of all such Senior Indebtedness, after giving
effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
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Upon any distribution of assets of the Company upon any dissolution,
winding up, total or partial liquidation or reorganization or readjustment of
the Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or a similar proceeding or upon assignment for the benefit of
creditors, or any other marshaling of the assets and liabilities of the
Company or otherwise, (i) the holders of all Senior Indebtedness would first
be entitled to receive payment in full in cash or cash equivalents (or have
such payment duly provided for) of the principal, premium, if any, and
interest payable in respect therefor before the Holders would be entitled to
receive any payment on account of the principal of, premium, if any, and
interest on the Subordinated Debt Securities, and (ii) any payment or
distribution of assets of the Company of any kind or character, from any
source, whether in cash, property or securities to which the Holders or the
Trustee on behalf of the Holders would be entitled, except for the
subordination provisions contained in the Indenture, would be paid by the
liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of Senior Indebtedness remaining unpaid
or unprovided for or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay or
provide for the payment in full in cash or cash equivalents of all such
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
The holders of the Senior Indebtedness and their respective
representatives are authorized to demand specific performance of the
provisions with respect to subordination in the Indenture at any time when
the Company or any Holder shall have failed to comply with any provision with
respect to subordination in the Indenture applicable to it, and the Company
and each Holder irrevocably waives any defense based on the adequacy of a
remedy at law that might be asserted as a bar to the remedy of specific
performance of such subordination provision in any action brought therefor by
the holders of the Senior Indebtedness and their respective representatives.
By reasons of such subordination, in the event of the liquidation or
insolvency of the Company, creditors of the Company who are not holders of
Senior Indebtedness, including Holders of the Subordinated Debt Securities,
may recover less, ratably, than holders of Senior Indebtedness.
No provision contained in the Indenture or the Subordinated Debt
Securities will affect the obligation of the Company, which is absolute and
unconditional, to pay, when due, principal of, premium, if any, and interest
on the Subordinated Debt Securities. The subordination provisions of the
Indenture and the Subordinated Debt Securities will not prevent the
occurrence of any Event of Default under the Indenture or limit the rights of
the Trustee or any Holder, except as provided in the seven preceding
paragraphs, to pursue any other rights or remedies with respect to the
Subordinated Debt Securities.
NEGATIVE PLEDGE
The Senior Debt Indenture provides that the Company and any successor
corporation will not, and will not permit any Subsidiary to, create, assume,
incur or guarantee any indebtedness for borrowed money secured by a pledge,
lien or other encumbrance except for Permitted Liens (as defined in the
Senior Debt Indenture) on the Voting Stock of DLJSC or any other Subsidiary
of the Company which shall hereafter succeed by merger or otherwise to all or
substantially all of the business of DLJSC (a "DLJSC Successor"), without
making effective provision whereby the Senior Debt Securities will be secured
equally and ratably with such secured indebtedness. (Senior Debt Indenture,
Section 4.3)
CERTAIN DEFINITIONS
The term "Holder" or "Securityholder" as defined in the applicable
Indenture means the registered holder of any Debt Security with respect to
registered Debt Securities and the bearer of any unregistered Debt Security
or any coupon appertaining thereto, as the case may be.
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The term "Designated Senior Indebtedness" means any class of Senior
Indebtedness the aggregate principal amount outstanding of which exceeds $50
million and which is specifically designated in the instrument evidencing
such Senior Indebtedness or the agreement under which such Senior
Indebtedness arises as "Designated Senior Indebtedness."
The term "Original Issue Discount Security" as defined in the applicable
Indenture means any Debt Security that provides for an amount less than the
principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2 of the
applicable Indenture.
The term "Senior Indebtedness" as defined in the Subordinated Debt
Indenture means the principal of and premium, if any, and interest on (a) all
indebtedness of the Company, whether outstanding on the date of the
Subordinated Debt Indenture or thereafter created, (i) for money borrowed by
the Company, (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Company, (iii) in
respect of letters of credit and acceptances issued or made by banks, or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company, for the payment of
which the Company is directly liable, and (b) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and supplements
to, any such indebtedness. As used in the preceding sentence, the term
"purchase money indebtedness" means indebtedness evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or
other security interest) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, unless by its terms such indebtedness is
subordinated to other indebtedness of the Company. Notwithstanding anything
to the contrary in the Subordinated Debt Indenture or the Subordinated Debt
Securities, Senior Indebtedness shall not include, (i) any indebtedness of
the Company which, by its terms or the terms of the instrument creating or
evidencing it, is subordinate in right of payment to or pari passu with the
Subordinated Debt Securities or (ii) any indebtedness of the Company to a
subsidiary of the Company. (Subordinated Debt Indenture, Section 1.1)
The term "Subsidiary" as defined in the applicable Indenture means with
respect to any Person, any corporation, association or other business entity
of which more than 50% of the outstanding Voting Stock (as defined in the
applicable Indenture) is owned directly or indirectly, by such Person and one
or more other Subsidiaries of such Person.
RESTRICTIONS ON MERGERS AND SALES OF ASSETS
Under each Indenture, the Company shall not consolidate with, merge with
or into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or substantially
as an entirety in one transaction or a series of related transactions) to,
any Person (other than a consolidation with or merger with or into a
Subsidiary or a sale, conveyance, transfer, lease or other disposition to a
Subsidiary) or permit any Person to merge with or into the Company unless:
(a) either (i) the Company shall be the continuing Person or (ii) the Person
(if other than the Company) formed by such consolidation or into which the
Company is merged or that acquired or leased such property and assets of the
Company shall be a corporation organized and validly existing under the laws
of the United States of America or any jurisdiction thereof and shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, all of the obligations of the Company on all of the Debt Securities
and under the applicable Indenture and the Company shall have delivered to
the Trustee an opinion of counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision and
that all conditions precedent provided for in the applicable Indenture
relating to such transaction have been complied with and that such
supplemental indenture constitutes the legal, valid and binding obligation of
the Company or such successor enforceable against such entity in accordance
with the terms, subject to customary exceptions; and (b) the Company shall
have delivered to the Trustee an officers' certificate to the effect that
immediately after giving effect to such transaction, no Default (as defined
in the applicable Indenture) shall have occurred and be continuing and an
opinion of counsel as to the matters set forth in paragraph (a) above.
(Section 5.1)
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EVENTS OF DEFAULT
Events of Default defined in the applicable Indenture with respect to the
Debt Securities of any series are: (a) the Company defaults in the payment of
all or any part of the principal of any Debt Security of such series when the
same becomes due and payable at maturity, upon acceleration, redemption or
mandatory repurchase, including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of any interest on any Debt Security
of such series when the same becomes due and payable, and such default
continues for a period of 30 days; (c) the Company defaults in the
performance of or breaches any other covenant or agreement of the Company in
the applicable Indenture with respect to any Debt Security of such series or
in the Debt Securities of such series and such default or breach continues
for a period of 60 consecutive days after written notice thereof has been
given to the Company by the Trustee or to the Company and the Trustee by the
Holders of 25% or more in aggregate principal amount of the Debt Securities
of all series under the applicable Indenture affected thereby; (d) an
involuntary case or other proceeding shall be commenced against the Company
or DLJSC (including for purposes of paragraph (d) and (e) hereof any DLJSC
Successor) with respect to the Company or DLJSC or their respective debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of the Company or DLJSC or for any substantial part
of the property and assets of the Company or DLJSC, and such involuntary case
or other proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or DLJSC
under any bankruptcy, insolvency or other similar law now or hereafter in
effect; (e) the Company or DLJSC (i) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary
case under any such law, (ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or DLJSC or for all or
substantially all of the property and assets of the Company or DLJSC or (iii)
effects any general assignment for the benefit of creditors; (f) an event of
default, as defined in any one or more indentures or instruments evidencing
or under which the Company has at the date of the applicable Indenture or
shall thereafter have outstanding an aggregate of at least $25,000,000
aggregate principal amount of indebtedness for borrowed money, shall happen
and be continuing and such indebtedness shall have been accelerated so that
the same shall be or become due and payable prior to the date on which the
same would otherwise have become due and payable, and such acceleration shall
not be rescinded or annulled within ten days after notice thereof shall have
been given to the Company by the Trustee (if such event be known to it), or
to the Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Debt Securities at the time outstanding under the
applicable Indenture; provided that if such event of default under such
indentures or instruments shall be remedied or cured by the Company or waived
by the holders of such indebtedness, then the Event of Default under the
applicable Indenture by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the part of
either the Trustee or any of the Securityholders; (g) failure by the Company
to make any payment at maturity, including any applicable grace period, in
respect of at least $25,000,000 aggregate principal amount of indebtedness
for borrowed money and such failure shall have continued for a period of ten
days after notice thereof shall have been given to the Company by the Trustee
(if such event be known to it), or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the Debt Securities
at the time outstanding under the applicable Indenture; provided that if such
failure shall be remedied or cured by the Company or waived by the holders of
such indebtedness, then the Event of Default under the applicable Indenture
by reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the Trustee or
any of the Securityholders; or (h) any other Event of Default established
with respect to any series of Debt Securities issued pursuant to the
applicable Indenture occurs. (Section 6.1)
Each Indenture provides that if an Event of Default described in clauses
(a) or (b) of the immediately preceding paragraph with respect to the Debt
Securities of any series then outstanding thereunder occurs and is
continuing, then, and in each and every such case, except for any series of
Debt Securities the principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of any such affected series then
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outstanding under the applicable Indenture (each such series treated as a
separate class) by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire principal amount (or, if
the Debt Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to the applicable Indenture) of all
Debt Securities of such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable. If an Event of Default
described in clauses (c) or (h) of the immediately preceding paragraph with
respect to the Debt Securities of one or more series then outstanding under
the applicable Indenture occurs and is continuing, then, in each and every
such case, except for any series of Debt Securities the principal of which
shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount (or, if the Debt
Securities of any such series are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof established
pursuant to the applicable Indenture) of the Debt Securities of all such
affected series then outstanding under the applicable Indenture (treated as a
single class) by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire principal amount (or, if
the Debt Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to the applicable Indenture) of all
Debt Securities of all such affected series, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event of
Default described in clauses (d) or (e) of the immediately preceding
paragraph occurs and is continuing, then the principal amount (or, if any
Debt Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
the applicable Indenture) of all the Debt Securities then outstanding under
the applicable Indenture and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other action by any
Holder or the Trustee to the full extent permitted by applicable law. If an
Event of Default described in clauses (f) or (g) of the immediately preceding
paragraph, or in clauses (c) or (h) of the immediately preceding paragraph
with respect to the Debt Securities of all series then outstanding under the
applicable Indenture, occurs and is continuing, then, in each and every such
case, either the Trustee or the Holders of not less than 25% in aggregate
principal amount (or, if the Debt Securities of any outstanding series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to the applicable
Indenture) of all Debt Securities of any series then outstanding under the
applicable Indenture except for any series of Debt Securities the principal
of which shall have already become due and payable (treated as a single
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the Debt
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to the applicable Indenture) of all Debt
Securities of any series then outstanding under the applicable Indenture, and
the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable.
Upon certain conditions such declarations may be rescinded and annulled and
past defaults may be waived by the Holders of a majority in principal of the
then outstanding Debt Securities of all such series that have been
accelerated under the applicable Indenture (voting as a single class).
(Section 6.2) Because the ability of Holders to declare the Debt Securities
of any series due and payable upon an Event of Default under clauses (c),
(f), (g) or (h) of the immediately preceding paragraph depends on the
requisite action by Holders of all affected series of Debt Securities under
the applicable Indenture, if there is more than one series of Debt Securities
outstanding, Holders of a particular series of Debt Securities may be unable
to declare the Debt Securities under the applicable Indenture due and payable
upon an Event of Default described in clauses (c), (f), (g) or (h) of the
immediately preceding paragraph without action by Holders of such other
series.
Each Indenture contains a provision under which, subject to the duty of
the Trustee during a default to act with the required standard of care, (i)
the Trustee may rely and shall be protected in acting or refraining from
acting upon any officers' certificate, opinion of counsel (or both),
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been
16
<PAGE>
signed or presented by the proper person or persons and the Trustee need not
investigate any fact or matter stated in the document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit; (ii) before the Trustee acts or refrains
from acting, it may require an officers' certificate and/or an opinion of
counsel, which shall conform to the requirements of the applicable Indenture
and the Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion; subject to the
terms of the applicable Indenture, whenever in the administration of the
trusts of the applicable Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
or omitting to take any action under the applicable Indenture, such matter
(unless other evidence in respect thereof be specifically prescribed in the
applicable Indenture) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by
an officers' certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of the applicable Indenture upon the faith
thereof; (iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care; (iv) any
request, direction, order or demand of the Company mentioned in the
applicable Indenture shall be sufficiently evidenced by an officers'
certificate (unless other evidence in respect thereof be specifically
prescribed in the applicable Indenture); and any Board Resolution may be
evidenced to the Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Company; (v) the Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by the
applicable Indenture at the request, order or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might
be incurred by it in compliance with such request, order or direction; (vi)
the Trustee shall not be liable for any action it takes or omits to take in
good faith that it believes to be authorized or within its rights or powers
or for any action it takes or omits to take in accordance with the direction
of the Holders in accordance with the applicable Indenture relating to the
time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee,
under the applicable Indenture; (vii) 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 to be taken by it under the applicable Indenture
in good faith and in reliance thereon; and (viii) prior to the occurrence of
an Event of Default under the applicable Indenture and after the curing or
waiving of all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, officers' certificate, opinion of counsel, Board Resolution,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other paper
or document unless requested in writing so to do by the Holders of not less
than a majority in aggregate principal amount of the Debt Securities of all
series affected then outstanding under the applicable Indenture; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of the applicable
Indenture, the Trustee may require reasonable indemnity against such expenses
or liabilities as a condition to proceeding. (Section 7.2)
Subject to such provisions in the applicable Indenture for the
indemnification of the Trustee and certain other limitations, the Holders of
at least a majority in aggregate principal amount (or, if any Debt Securities
are Original Issue Discount Securities, such portion of the principal as may
be specified in the terms thereof established pursuant to the applicable
Indenture) of the outstanding Debt Securities under the applicable Indenture
of all series affected (voting as a single class) may direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series by the applicable Indenture;
provided, that the Trustee may refuse to follow any direction that conflicts
with law or the applicable Indenture, that may involve the Trustee in
personal liability, or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders not joining in the giving of such
direction; and provided further, that the Trustee may take any other action
it deems proper that is not inconsistent with any directions received from
Holders of Debt Securities pursuant to this paragraph. (Section 6.5)
17
<PAGE>
Subject to various provisions in the applicable Indenture, the Holders of
at least a majority in principal amount (or, if the Debt Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to the applicable
Indenture) of the outstanding Debt Securities under the applicable Indenture
of all series affected (voting as a single class), by notice to the Trustee,
may waive an existing Default or Event of Default with respect to the Debt
Securities of such series and its consequences, except a Default in the
payment of principal of or interest on any Debt Security as specified in
clauses (a) or (b) of Section 6.1 of the applicable Indenture or in respect
of a covenant or provision of the applicable Indenture which cannot be
modified or amended without the consent of the Holder of each outstanding
Debt Security affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default with respect to the Debt Securities of such
series arising therefrom shall be deemed to have been cured, for every
purpose of the applicable Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right
consequent thereto. (Section 6.4)
Each Indenture provides that no Holder of any Debt Securities of any
series may institute any proceeding, judicial or otherwise, with respect to
the applicable Indenture or the Debt Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy under the
applicable Indenture, unless: (i) such Holder has previously given to the
Trustee written notice of a continuing Event of Default with respect to the
Debt Securities of such series; (ii) the Holders of at least 25% in aggregate
principal amount of outstanding Debt Securities of all such series affected
under the applicable Indenture shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name
as Trustee under the applicable Indenture; (iii) such Holder or Holders have
offered to the Trustee indemnity reasonably satisfactory to the Trustee
against any costs, liabilities or expenses to be incurred in compliance with
such request; (iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and (v) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Debt Securities of all such affected
series under the applicable Indenture have not given the Trustee a direction
that is inconsistent with such written request. A Holder may not use the
applicable Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder. (Section 6.6)
Each Indenture contains a covenant that the Company will 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 which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
(Section 4.5)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides with respect to each series of Debt Securities
that the Company may terminate its obligations under the Debt Securities of
any series and the applicable Indenture with respect to Debt Securities of
such series if: (i) all Debt Securities of such series previously
authenticated and delivered, with certain exceptions, have been delivered to
the Trustee for cancellation and the Company has paid all sums payable by it
under the applicable Indenture; or (ii) (a) the Debt Securities of such
series mature within one year or all of them are to be called for redemption
within one year under arrangements satisfactory to the Trustee for giving the
notice of redemption, (b) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such Debt
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of money, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee),
without consideration of any reinvestment, to pay the principal of and
interest on the Debt Securities of such series to maturity or redemption, as
the case may be, and to pay all other sums payable by it under the applicable
Indenture, and (c) the Company delivers to the Trustee an officers'
certificate and an opinion of counsel, in each case stating that all
conditions precedent provided for in the applicable Indenture relating to the
satisfaction and discharge of the applicable Indenture with respect to the
Debt Securities of such series have been complied with. With respect to the
foregoing clause (i), only the Company's obligations to compensate and
indemnify the Trustee under the applicable Indenture shall survive. With
respect to the foregoing clause (ii), only the Company's obligations to
execute and deliver Debt Securities of such series for
18
<PAGE>
authentication, to set the terms of the Debt Securities of such series, to
maintain an office or agency in respect of the Debt Securities of such
series, to have moneys held for payment in trust, to register the transfer or
exchange of Debt Securities of such series, to deliver Debt Securities of
such series for replacement or to be canceled, to compensate and indemnify
the Trustee and to appoint a successor trustee, and its right to recover
excess money held by the Trustee shall survive until such Debt Securities are
no longer outstanding. Thereafter, only the Company's obligations to
compensate and indemnify the Trustee, and its right to recover excess money
held by the Trustee shall survive. (Section 8.1)
Each Indenture provides that the Company (i) will be deemed to have paid
and will be discharged from any and all obligations in respect of the Debt
Securities of any series under the applicable Indenture, and the provisions
of the applicable Indenture will, except as noted below, no longer be in
effect with respect to the Debt Securities of such series ("legal
defeasance") and (ii) may, in the case of the Senior Debt Indenture, omit to
comply with any term, provision or condition of the applicable Indenture
described above under "--Negative Pledge" (or in the case of each Indenture
omit to comply with any other specific covenant relating to such series
provided for in a Board Resolution or supplemental indenture which may by its
terms be defeased pursuant to such Indenture), and such omission shall be
deemed not to be an Event of Default under clauses (c) or (h) of the first
paragraph of "--Events of Default" with respect to the outstanding Debt
Securities of a series under the applicable Indenture ("covenant
defeasance"); provided that the following conditions shall have been
satisfied: (a) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the Debt
Securities of such series, for payment of the principal of and interest on
the Debt Securities of such series, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of money, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee)
without consideration of any reinvestment and after payment of all federal,
state and local taxes or other charges and assessments in respect thereof
payable by the Trustee, to pay and discharge the principal of and accrued
interest on the outstanding Debt Securities of such series to maturity or
earlier redemption (irrevocably provided for under arrangements satisfactory
to the Trustee), as the case may be; (b) such deposit will not result in a
breach or violation of, or constitute a default under, the applicable
Indenture or any other material agreement or instrument to which the Company
is a party or by which it is bound; (c) no Default with respect to such Debt
Securities of such series shall have occurred and be continuing on the date
of such deposit; (d) the Company shall have delivered to the Trustee an
opinion of counsel that (1) the Holders of the Debt Securities of such series
will not recognize income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this provision of the
applicable Indenture and will be subject to Federal income tax on the same
amount and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred and (2) the Holders of
the Debt Securities of such series have a valid security interest in the
trust funds subject to no prior liens under the Uniform Commercial Code, and
(e) the Company has delivered to the Trustee an officers' certificate and an
opinion of counsel, in each case stating that all conditions precedent
provided for the applicable Indenture relating to the defeasance contemplated
have been complied with. In the case of legal defeasance under clause (i)
above, the opinion of counsel referred to in clause (d)(1) above may be
replaced by a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect. Subsequent to legal defeasance under
clause (i) above, the Company's obligations to execute and deliver Debt
Securities of such series for authentication, to set the terms of the Debt
Securities of such series, to maintain an office or agency in respect of the
Debt Securities of such series, to have moneys held for payment in trust, to
register the transfer or exchange of Debt Securities of such series, to
deliver Debt Securities of such series for replacement or to be canceled, to
compensate and indemnify the Trustee and to appoint a successor trustee, and
its right to recover excess money held by the Trustee shall survive until
such Debt Securities are no longer outstanding. After such Debt Securities
are no longer outstanding, in the case of legal defeasance under clause (i)
above, only the Company's obligations to compensate and indemnify the Trustee
and its right to recover excess money held by the Trustee shall survive.
(Sections 8.2 and 8.3)
MODIFICATION OF THE INDENTURES
Each Indenture provides that the Company and the Trustee may amend or
supplement the applicable Indenture or the Debt Securities of any series
without notice to or the consent of any Holder: (1) to cure
19
<PAGE>
any ambiguity, defect or inconsistency in the applicable Indenture; provided
that such amendments or supplements shall not materially and adversely affect
the interests of the Holders; (2) to comply with Article 5 of the applicable
Indenture in connection with a consolidation or merger of the Company or the
sale, conveyance, transfer, lease or other disposal of all or substantially
all of the property and assets of the Company; (3) to comply with any
requirements of the Commission in connection with the qualification of the
applicable Indenture under the Trust Indenture Act; (4) to evidence and
provide for the acceptance of appointment under the applicable Indenture with
respect to the Debt Securities of any or all series by a successor Trustee;
(5) to establish the form or forms or terms of Debt Securities of any series
or of the coupons pertaining to such Debt Securities as permitted under the
applicable Indenture; (6) to provide for uncertificated or unregistered Debt
Securities and to make all appropriate changes for such purpose; or (7) to
make any change that does not materially and adversely affect the rights of
any Holder. (Section 9.1)
Each Indenture also contains provisions whereby the Company and the
Trustee, subject to certain conditions, without prior notice to any Holders,
may amend the applicable Indenture and the outstanding Debt Securities of any
series with the written consent of the Holders of a majority in principal
amount of the Debt Securities then outstanding under the applicable Indenture
of all series affected by such amendment (all such series voting as one
class), and the Holders of a majority in principal amount of the outstanding
Debt Securities under the applicable Indenture of all series affected thereby
(all such series voting as one class) by written notice to the Trustee may
waive future compliance by the Company with any provision of the applicable
Indenture or the Debt Securities of such series. Notwithstanding the
foregoing provisions, without the consent of each Holder affected thereby, an
amendment or waiver, including a waiver pursuant to Section 6.4 of the
applicable Indenture, may not: (i) extend the stated maturity of the
principal of, or any sinking fund obligation or any installment of interest
on, such Holder's Debt Security, or reduce the principal thereof or the rate
of interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely affect
the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of such
Holder, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof or the amount thereof provable in bankruptcy, or change any place of
payment where, or the currency in which, any Debt Security or any premium or
the interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the due date therefor; (ii)
reduce the percentage in principal amount of outstanding Debt Securities of
the relevant series the consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance with certain provisions
of the applicable Indenture or certain Defaults and their consequences
provided for in the applicable Indenture; (iii) waive a Default in the
payment of principal of or interest on any Debt Security of such Holder; or
(iv) modify any of the provisions of this provision of the applicable
Indenture, except to increase any such percentage or to provide that certain
other provisions of the applicable Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Debt Security
thereunder affected thereby. A supplemental indenture which changes or
eliminates any covenant or other provision of the applicable Indenture which
has expressly been included solely for the benefit of one or more particular
series of Debt Securities, or which modifies the rights of Holders of Debt
Securities of such series with respect to such covenant or provision, shall
be deemed not to affect the rights under the applicable Indenture of the
Holders of Debt Securities of any other series or of the coupons appertaining
to such Debt Securities. It shall not be necessary for the consent of any
Holder under this provision of the applicable Indenture to approve the
particular form of any proposed amendment, supplement or waiver, but it shall
be sufficient if such consent approves the substance thereof. After an
amendment, supplement or waiver under this section of the applicable
Indenture becomes effective, the Company shall give to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. The
Company will mail supplemental indentures to Holders upon request. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver. (Section 9.2)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by the laws of the
State of New York. (Section 10.8 and Section 11.8)
20
<PAGE>
CONCERNING THE TRUSTEE
The Company and its subsidiaries maintain ordinary banking and trust
relationships with The Chase Manhattan Bank and its affiliates.
21
<PAGE>
PLAN OF DISTRIBUTION
Offered Securities may be sold (i) through agents, (ii) through
underwriters, (iii) through dealers or (iv) directly to purchasers.
Offers to purchase Offered Securities may be solicited by agents
designated by the Company from time to time. Any such agent involved in the
offer or sale of the Offered Securities will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment. Any such agent may be deemed to be an underwriter, as that term
is defined in the Securities Act, of the Offered Securities so offered and
sold.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is
reached, and the names of the specific managing underwriter or underwriters,
as well as any other underwriters, and the terms of the transactions,
including compensation of the underwriters and dealers, if any, will be set
forth in the Prospectus Supplement, which will be used by the underwriters to
make resales of Offered Securities.
If a dealer is utilized in the sale of Offered Securities, the Company
will sell such Offered Securities to the dealer, as principal. The dealer may
then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale. The name of the dealer and
the terms of the transactions will be set forth in the Prospectus Supplement
relating thereto.
If DLJSC, a wholly owned subsidiary of the Company, participates in the
distribution of Offered Securities, the offering of the Offered Securities
will be conducted in accordance with Section 2720 of the NASD Conduct Rules.
Offers to purchase Offered Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to
institutional investors or others. The terms of any such sales will be
described in the Prospectus Supplement relating thereto.
Agents, underwriters and dealers may be entitled under agreements which
may be entered into with the Company, to indemnification by the Company
against certain liabilities, including liabilities under the 1933 Act, and
any such agents, underwriters or dealers, or their affiliates may be
customers of, engage in transactions with or perform services for the
Company, in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Offered Securities from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date stated in the
Prospectus Supplement. Such Contracts will be subject to only those
conditions set forth in the Prospectus Supplement. A commission indicated in
the Prospectus Supplement will be paid to underwriters and agents soliciting
purchases of Offered Securities pursuant to any such Contracts accepted by
the Company.
This Prospectus, together with the Prospectus Supplement, may also be used
by DLJSC in connection with offers and sales of Offered Securities related to
market-making transactions by and through DLJSC, at negotiated prices related
to prevailing market prices at the time of sale or otherwise. DLJSC may act
as principal or agent in such transactions.
LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Securities and certain other legal matters in connection with
the offering of the Securities will be passed upon by Michael A. Boyd, Senior
Vice President and General Counsel to the Company, and Davis Polk & Wardwell.
Mr. Boyd owns 8,033 shares of Common Stock, 14,433 restricted stock units and
options to purchase 39,772 shares of Common Stock. Davis Polk & Wardwell from
time to time provides legal services to the Company and its subsidiaries.
22
<PAGE>
EXPERTS
The consolidated financial statements and financial statement schedule of
the Company as of December 31, 1996 and 1995 and for each of the years in the
three-year period ended December 31, 1996 have been incorporated by reference
herein and in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated
herein by reference, and upon the authority of said firm as experts in
accounting and auditing.
23
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, IN CONNECTION WITH ANY OFFERING
CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THEREOF. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT SHALL
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
TABLE OF CONTENTS
PAGE
--------
Available Information ...................... 2
Incorporation of Certain Information by
Reference ................................. 2
Use of Proceeds............................. 3
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and
Preferred Stock Dividends ................. 3
The Company................................. 4
Description of Capital Stock ............... 6
Description of Debt Securities ............. 9
Plan of Distribution ....................... 22
Legal Matters .............................. 22
Experts .................................... 23
$300,000,000
DONALDSON, LUFKIN &
JENRETTE, INC.
DEBT SECURITIES
PREFERRED STOCK
PROSPECTUS
, 1997
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to theses 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 consitute 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.
ALTERNATE TO DEBT SECURITIES AND PREFERRED STOCK PROSPECTUS
SUBJECT TO COMPLETION, DATED DECEMBER 1, 1997
PROSPECTUS
, 1997
$300,000,000
DONALDSON, LUFKIN & JENRETTE, INC.
DEBT SECURITIES AND PREFERRED STOCK
Donaldson, Lufkin & Jenrette, Inc. (the "Company") may from time to time
offer, together or separately, (i) senior or subordinated debt securities
(the "Debt Securities") or (ii) shares of its preferred stock, par value
$0.01 per share (the "Preferred Stock"). The Debt Securities and Preferred
Stock are collectively called the "Securities."
The Securities may be issued in one or more series or issuances in U.S.
dollars or in one or more foreign currencies, currency units or composite
currencies. The aggregate initial public offering price of the securities to
be offered by this Prospectus shall not exceed $300,000,000 (or its
equivalent in one or more foreign currencies, currency units or composite
currencies). Specific terms of the securities in respect of which this
Prospectus is being delivered (the "Offered Securities") will be set forth in
an accompanying Prospectus Supplement (a "Prospectus Supplement"). The
Prospectus Supplement will set forth with regard to the particular Offered
Securities, without limitation, the following: (i) in the case of Debt
Securities, the ranking as senior or subordinated debt securities, the
specific designation, aggregate principal amount, authorized denomination,
maturity, rate (which may be fixed or variable) or method of calculation of
interest and dates for payment thereof, and any exchangeability, redemption,
prepayment or sinking fund provisions and any listing on a securities
exchange and (ii) in the case of Preferred Stock, the specific designation,
number of shares, purchase price and the rights, preferences and privileges
thereof and any qualifications or restrictions thereon (including dividends,
liquidation value, voting rights, terms for the redemption or exchange
thereof and any other specific terms of the Preferred Stock) and any listing
on a securities exchange. Unless otherwise indicated in the Prospectus
Supplement, the Company does not intend to list any of the Securities on a
national securities exchange.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
This Prospectus has been prepared for use by Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC") in connection with offers and sales of the
Offered Securities which may be made by it from time to time in market-making
transactions at negotiated prices relating to prevailing market prices at the
time of sale. The Company has been advised by DLJSC that it currently intends
to make a market in the Offered Securities; however, it is not obligated to
do so. Any such market-making may be discontinued at any time, and there is
no assurance as to the liquidity of, or trading market for, the Offered
Securities. DLJSC may act as principal or agent in such transactions. See
"Plan of Distribution." This Prospectus may not be used to consummate sales
of Offered Securities unless accompanied by a Prospectus Supplement.
<PAGE>
ALTERNATE TO DEBT SECURITIES AND PREFERRED STOCK PROSPECTUS
USE OF PROCEEDS
Donaldson, Lufkin & Jenrette, Inc. will not receive any proceeds from the
sale of the Offered Securities in any market-making transaction with which
this Prospectus may be delivered.
Alt-2
<PAGE>
ALTERNATE TO DEBT SECURITIES AND PREFERRED STOCK PROSPECTUS
PLAN OF DISTRIBUTION
This Prospectus has been prepared for use by DLJSC in connection with
offers and sales of the Offered Securities in market-making transactions at
negotiated prices related to prevailing market prices at the time of the
sale. DLJSC may act as principal or agent in such transactions. DLJSC has
advised the Company that it currently intends to make a market in the Offered
Securities, but it is not obligated to do so and may discontinue any such
market-making at any time without notice. Accordingly, no assurance can be
given as to the liquidity of, or the trading market for, the Offered
Securities.
Alt-3
<PAGE>
ALTERNATE TO DEBT SECURITIES AND PREFERRED STOCK PROSPECTUS
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, IN CONNECTION WITH ANY OFFERING
CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, ANY AGENT OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL UNDER
ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF. NEITHER THIS
PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT SHALL CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO
OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
PAGE
--------
Available Information ...................... 2
Incorporation of Certain Information by
Reference ................................. 2
Use of Proceeds............................. 3
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and
Preferred Stock Dividends.................. 3
The Company................................. 4
Description of Capital Stock ............... 6
Description of Debt Securities ............. 9
Plan of Distribution ....................... 22
Legal Matters .............................. 22
Experts .................................... 23
$300,000,000
DONALDSON, LUFKIN &
JENRETTE, INC.
DEBT SECURITIES
PREFERRED STOCK
PROSPECTUS
, 1997
Alt-4
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCES AND DISTRIBUTION
The following table sets forth the fees and expenses payable by the
Company in connection with the issuance and distribution of the securities
other than underwriting discounts and commissions. All of such expenses
except the Securities and Exchange Commission registration fee are estimated:
Securities and Exchange Commission registration fee . $ 90,910
Blue Sky fees and expenses .......................... 15,000
Printing expense .................................... 100,000
Accounting fees and expenses ........................ 25,000
Legal fees and expenses ............................. 70,000
Rating agency fees .................................. 225,000
Trustee's fees and expenses ......................... 15,000
Miscellaneous ....................................... 65,090
----------
Total............................................ $606,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty,
except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
the unlawful payment of dividends or unlawful stock purchases or redemptions)
or (iv) for any transaction from which a director derived an improper
personal benefit.
Section 145 of the DGCL empowers the Company to indemnify, subject to the
standards set forth therein, any person in connection with any action, suit
or proceeding brought before or threatened by reason of the fact that the
person was a director, officer, employee or agent of such company, or is or
was serving as such with respect to another entity at the request of such
company. The DGCL also provides that the Company may purchase insurance on
behalf of any such director, officer, employee or agent.
The Company's Certificate of Incorporation provides in effect for the
indemnification by the Company of each director and officer of the Company to
the fullest extent permitted by applicable law.
ITEM 16. EXHIBITS
See index to exhibits at E-1.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
II-1
<PAGE>
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.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraph (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrants pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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 the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes 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 Section 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
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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 in Item 15 above or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, Donaldson,
Lufkin & Jenrette, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this amendment to the registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New
York, New York, on the 1st day of December, 1997.
DONALDSON, LUFKIN & JENRETTE, INC.
By: /s/ John S. Chalsty
---------------------------------
John S. Chalsty
Chairman, Chief Executive Officer
and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ John S. Chalsty Chairman, Chief Executive December 1, 1997
- ---------------------------- Officer and Director
John S. Chalsty
* President, Chief Operating December 1, 1997
- ---------------------------- Officer and Director
Joe L. Roby
* Vice Chairman and Director December 1, 1997
- ----------------------------
Carl B. Menges
* Executive Vice President, December 1, 1997
- ---------------------------- Chief Financial Officer and
Anthony F. Daddino Director
* Chairman, Financial Services December 1, 1997
- ---------------------------- Group and Director
Richard S. Pechter
- ---------------------------- Chairman, Capital Markets Group December 1, 1997
Theodore P. Shen and Director
* Chairman, Banking Group December 1, 1997
- ---------------------------- and Director
Hamilton E. James
* Senior Vice President December 1, 1997
- ---------------------------- and Chief Accounting Officer
Michael M. Bendik
* Director December 1, 1997
- ----------------------------
Claude Bebear
Director December 1, 1997
- ----------------------------
Henri de Castries
- ---------------------------- Director December 1, 1997
Denis Duverne
II-3
<PAGE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director December 1, 1997
- ----------------------------
Louis Harris
* Director December 1, 1997
- ----------------------------
Henri G. Hottinguer
* Director December 1, 1997
- ----------------------------
W. Edwin Jarmain
- ---------------------------- Director December 1, 1997
Francis Jungers
* Director December 1, 1997
- ----------------------------
Joseph J. Melone
- ---------------------------- Director December 1, 1997
Edward D. Miller
- ---------------------------- Director December 1, 1997
W. J. Sanders, III
* Director December 1, 1997
- ----------------------------
Stanley B. Tulin
* Director December 1, 1997
- ----------------------------
John C. West
*By /s/ John S. Chalsty
------------------------
John S. Chalsty
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
-- -----------
<S> <C> <C>
1.1 Form of Underwriting Agreement relating to the Debt Securities ...............
1.2 Form of Underwriting Agreement relating to the Preferred Stock ...............
3.1 Restated Certificate of Incorporation of Registrant*..........................
3.2 By-laws of the Registrant*....................................................
4.1 Form of Senior Debt Indenture between the Company and
The Chase Manhattan Bank, as Trustee........................................
4.2 Form of Senior Debt Securities ...............................................
4.3 Form of Subordinated Debt Indenture between the Company and
The Chase Manhattan Bank, as Trustee........................................
4.4 Form of Subordinated Debt Securities..........................................
5.1 Opinion of Davis Polk & Wardwell .............................................
12.1 Computation of ratio of earnings to fixed charges and ratio of earnings to
combined fixed charges and preferred stock dividends .......................
23.1 Consent of Davis Polk & Wardwell (included in Exhibit 5.1) ...................
23.2 Consent of KPMG Peat Marwick LLP .............................................
24.1 Powers of Attorney for the Company**..........................................
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Chase Manhattan Bank, as Trustee, under the Indentures...............
</TABLE>
- ------------
* Incorporated by reference to the corresponding exhibit to Donaldson,
Lufkin & Jenrette, Inc.'s Registration Statement or Form S-1
(Registration No. 33-96276).
** Previously filed.
E-1
<PAGE>
EXHIBIT 1.1
$____________
DONALDSON, LUFKIN & JENRETTE, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
[Date]
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
As representatives of the several Underwriters
named in Schedule I hereto (the
"REPRESENTATIVES")
c/o Donaldson, Lufkin & Jenrette Securities
Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell $_________ principal amount of its ___%
Notes due _________ (the "SECURITIES") to the several underwriters named in
Schedule hereto (the "UNDERWRITERS"). The Securities are to be issued pursuant
to the provisions of an Indenture to be dated as of ____________ (the
"INDENTURE") between the Company and The Chase Manhattan Bank, as Trustee (the
"TRUSTEE").
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-3, including a
prospectus, relating to the Securities. The registration statement, as amended
at
<PAGE>
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is hereinafter referred to as the "REGISTRATION
STATEMENT"; and the prospectus in the form first used to confirm sales of
Securities is hereinafter referred to as the "PROSPECTUS" (including, in the
case of all references to the Registration Statement or the Prospectus
documents incorporated therein by reference). If the Company has filed or is
required pursuant to the terms hereof to file a registration statement
pursuant to Rule 462(b) under the Act registering additional ___% Notes due
_________ (a "RULE 462(B) REGISTRATION STATEMENT"), then, unless otherwise
specified, any reference herein to the term "Registration Statement" shall be
deemed to include such Rule 462(b) Registration Statement. The terms
"SUPPLEMENT" and "AMENDMENT" or "AMEND" as used in this Agreement with respect
to the Registration Statement or the Prospectus shall include all documents
subsequently filed by the company with the commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the commission thereunder (collectively, the "EXCHANGE ACT") that are deemed
to be incorporated by reference in the Prospectus.
SECTION 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the Company
the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule hereto at ____% of the principal amount thereof (the
"PURCHASE PRICE").
SECTION 3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose (i) to make a public offering of their
respective portions of the Securities as soon after the execution and delivery
of this Agreement as in your judgment is advisable and (ii) initially to offer
the Securities upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Securities shall be made at 9:00 A.M., New York City time, on
__________ , 199_ (the "CLOSING DATE") at such place as you shall designate.
The Closing Date and the location of delivery of and payment for the
Securities may be varied by agreement between you and the Company.
Certificates for the Securities shall be registered in such names and
issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date. Such certificates shall be
made available to you for inspection not later than 9:30 A.M., New York City
time, on the business day prior to the Closing Date. Certificates in
definitive form evidencing
2
<PAGE>
the Securities will be delivered to you on the Closing Date with any transfer
taxes thereon duly paid by the Company, for the respective accounts of the
several Underwriters, against payment to the Company of the Purchase Price
therefor by wire transfer of Federal or other funds immediately available in
New York City.
SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information, (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of
the Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any
amendment to the Registration Statement becomes effective, (iv) if
the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, when the Rule 462(b)
Registration Statement has become effective and (v) of the happening
of any event during the period referred to in Section 5(d) below
which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to
or changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will use its best efforts to
obtain the withdrawal or lifting of such order at the earliest
possible time.
(b) To furnish ___ signed copies of the Registration Statement as
first filed with the Commission and of each amendment to it,
including all exhibits and documents incorporated therein by
reference, and to furnish to you and each Underwriter designated by
you such number of conformed copies of the Registration Statement as
so filed and of each amendment to it, without exhibits but including
documents incorporated therein by reference, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of which shall
be satisfactory to you, and to file the Prospectus in such form with
the Commission within the applicable period specified in Rule 424(b)
under the Act; during the period specified in Section 5(d) below, not
to file any further amendment to the Registration Statement and not
to make any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you shall
reasonably object after
3
<PAGE>
being so advised; and, during such period, to prepare and file with
the Commission, promptly upon your reasonable request, any amendment
to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Securities by you, and to use its best efforts to
cause any such amendment to the Registration Statement to become
promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business
day after the date of this Agreement and from time to time thereafter
for such period as in the opinion of counsel for the Underwriters a
prospectus is required by law to be delivered in connection with
sales by an Underwriter or a dealer, to furnish in New York City to
each Underwriter and any dealer as many copies of the Prospectus (and
of any amendment or supplement to the Prospectus) and any documents
incorporated therein by reference as such Underwriter or dealer may
reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion
of counsel for the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus
to comply with applicable law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus
so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply
with applicable law, and to furnish to each Underwriter and to any
dealer as many copies thereof as such Underwriter or dealer may
reasonably request.
(f) Prior to any public offering of the Securities, to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Securities for offer and sale by
the several Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may request, to continue
such registration or qualification in effect so long as required for
distribution of the Securities and to file such consents to service
of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the
Company shall not be required in connection therewith to qualify as a
foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that
4
<PAGE>
would subject it to general consent to service of process or taxation
other than as to matters and transactions relating to the Prospectus,
the Registration Statement, any preliminary prospectus or the
offering or sale of the Securities, in any jurisdiction in which it
is not now so subject.
(g) To mail and make generally available to its security holders as
soon as practicable an earnings statement covering the twelve-month
period ending __________, 199_ that shall satisfy the provisions of
Section 11(a) of the Act, and to advise you in writing when such
statement has been so made available.
(h) So long as the Securities are outstanding, (i) to make generally
available as soon as practicable after the end of each fiscal year to
the record holders of the Securities a financial report of the
Company and its subsidiaries on a consolidated basis (and a similar
financial report of all unconsolidated subsidiaries, if any), all
such financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of
cash flows and a consolidated statement of shareholders' equity as of
the end of and for such fiscal year, together with comparable
information as of the end of and for the preceding year, certified by
independent public accountants and (ii) to make generally available
as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations
and a consolidated statement of cash flows (and similar financial
reports of all unconsolidated subsidiaries, if any) as of the end of
and for such period, and for the period from the beginning of such
year to the close of such quarterly period, together with comparable
information for the corresponding periods of the preceding year.
(i) So long as the Securities are outstanding, to furnish to you as
soon as available copies of all reports or other communications
furnished to its security holders or furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may
reasonably request.
(j) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to
be paid all expenses incident to the performance of its obligations
under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in
connection
5
<PAGE>
with the registration and delivery of the Securities under the Act
and all other fees and expenses in connection with the preparation,
printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary
prospectus, the Prospectus and all amendments and supplements to any
of the foregoing, including the mailing and delivering of copies
thereof to the Underwriters and dealers in the quantities specified
herein, (ii) all costs and expenses related to the transfer and
delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) all costs of printing
or producing this Agreement and any other agreements or documents in
connection with the offering, purchase, sale or delivery of the
Securities, (iv) all expenses in connection with the registration or
qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states and all costs of
printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and fees
and disbursements of counsel for the Underwriters in connection with
such registration or qualification and memoranda relating thereto),
(v) the filing fees and disbursements of counsel for the Underwriters
in connection with the review and clearance of the offering of the
Securities by the National Association of Securities Dealers, Inc.,
(vi) all fees and expenses in connection with the preparation and
filing of the registration statement on Form 8-A relating to the
Securities and all costs and expenses incident to the listing of the
Securities on [the Nasdaq National Market/NYSE/AMEX] [and other
national securities exchanges and foreign stock exchanges], (vii) the
cost of printing certificates representing the Securities, (viii) the
costs and charges of any transfer agent, registrar and/or depositary
(including the Depository Trust Company), (ix) any fees charged by
rating agencies for the rating of the Securities, (x) the fees and
expenses of the Trustee and the Trustee's counsel in connection with
the Indenture and the Securities and (xi) all other costs and
expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this
Section 5(j).
[(k) To use its best efforts to [list for quotation the Securities on
the Nasdaq National Market and to maintain the listing of the
Securities on the Nasdaq National Market] [list, subject to notice of
issuance, the Securities on the NYSE/AMEX and to maintain the listing
of the Securities on the NYSE/AMEX] for so long as the Securities are
outstanding.]
(l) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to
6
<PAGE>
sell or otherwise transfer or dispose of any debt securities of the
Company or any warrants, rights or options to purchase or otherwise
acquire debt securities of the Company substantially similar to the
Securities (other than (i) the Securities and (ii) commercial paper
issued in the ordinary course of business), without the prior written
consent of a majority of the unaffiliated Representatives.
(m) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of the
Securities.
(n) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the
Company prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Securities.
(o) If the Registration Statement at the time of the effectiveness
of this Agreement does not cover all of the Securities, to file a
Rule 462(b) Registration Statement with the Commission registering
the Securities not so covered in compliance with Rule 462(b) by 10:00
P.M., New York City time, on the date of this Agreement and to pay to
the Commission the filing fee for such Rule 462(b) Registration
Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
(p) The company will, for so long as any of the Preferred Stock is
outstanding and if, in the reasonable judgement of any Underwriter,
such Underwriter or any of its affiliates (as defined in the Act) is
required to deliver a prospectus in connection with sales of
Preferred Stock (i) periodically amend the Registration Statement so
that the information contained in the Registration Statement complies
with the requirements of Section 10(a) of the Act, (ii) amend the
Registration Statement or amend or supplement the Prospectus when
necessary to reflect any material changes in the information provided
therein and promptly file such amendment or supplement with the
commission, (iii) provide such Underwriter with copies of each
amendment or supplement so filed and such other documents, including
opinion of counsel and "comfort" letter, as such Underwriter may
reasonably request and (iv) indemnify such Underwriter and if
applicable, contribute to any amount paid or payable by such
Underwriter in a manner substantially identical to the specified in
Section 7 hereof (with appropriate modifications).
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
7
<PAGE>
(a) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company after
the effectiveness of this Agreement); any Rule 462(b) Registration
Statement filed after the effectiveness of this Agreement will become
effective no later than 10:00 P.M., New York City time, on the date
of this Agreement; and no stop order suspending the effectiveness of
the Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the
Exchange Act; (ii) The Registration Statement (other than any Rule
462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement), when it became effective, did not
contain and, as amended, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company
after the effectiveness of this Agreement) and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Act, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of
this Agreement, such Rule 462(b) Registration Statement and any
amendments thereto, when they become effective (A) will not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading and (B) will comply in all material
respects with the Act and (v) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph do not
apply to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, complied when so filed in
all material respects with the Act, and did not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or
8
<PAGE>
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph do not
apply to statements or omissions in any preliminary prospectus based
upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described
in the Prospectus and to own, lease and operate its properties, and
each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which
the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business,
prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(e) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(f) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, and are owned by the Company,
directly or indirectly through one or more subsidiaries, free and
clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature (each, a "LIEN").
(g) The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "TRUST INDENTURE ACT"), and has been
duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in accordance with
its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The Securities have been duly authorized and, on the Closing
Date, will have been validly executed and delivered by the Company.
When the Securities have been executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the
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Underwriters in accordance with the terms of this Agreement, the
Securities will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company, enforceable in
accordance with their terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(i) The Securities conform as to legal matters to the description
thereof contained in the Prospectus.
(j) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries or their
respective property is bound.
(k) The execution, delivery and performance of this Agreement, the
Indenture and the Securities by the Company, the compliance by the
Company with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will
not (i) require any consent, approval, authorization or other order
of, or qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue Sky laws
of the various states), (ii) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of its subsidiaries or any indenture,
loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective property
is bound, (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any
of its subsidiaries or their respective property, (iv) result in the
imposition or creation of (or the obligation to create or impose) a
Lien under any agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound or (v) result in
the suspension, termination or revocation of any Authorization (as
defined below) of the
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Company or any of its subsidiaries or any other impairment of the
rights of the holder of any such Authorization.
(l) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or
could be a party or to which any of their respective property is or
could be subject that are required to be described in the
Registration Statement or the Prospectus and are not so described;
nor are there any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement that are not so described or filed as required.
(m) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS") or any provisions of the Employee Retirement
Income Security Act of 1974, as amended, or the rules and regulations
promulgated thereunder, except for such violations which, singly or
in the aggregate, would not have a material adverse effect on the
business, prospects, financial condition or results of operation of
the Company and its subsidiaries, taken as a whole.
(n) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "AUTHORIZATION") of, and has made all filings
with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals,
including, without limitation, under any applicable Environmental
Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing or
notice would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
Each such Authorization is valid and in full force and effect and
each of the Company and its subsidiaries is in compliance with all
the terms and conditions thereof and with the rules and regulations
of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both,
would result in any other impairment of the rights of the
11
<PAGE>
holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company or any of its
subsidiaries; except where such failure to be valid and in full force
and effect or to be in compliance, the occurrence of any such event
or the presence of any such restriction would not, singly or in the
aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any related
constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a
material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(p) This Agreement has been duly authorized, executed and delivered
by the Company.
(q) KPMG Peat Marwick LLP are independent public accountants with
respect to the Company and its subsidiaries as required by the Act.
(r) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes,
present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and its
subsidiaries on the basis stated therein at the respective dates or
for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; the
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately
presented and prepared [on a basis consistent with such financial
statements and the books and records of the Company].
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<PAGE>
(s) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended.
(t) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect
to any securities of the Company or to require the Company to include
such securities with the Securities registered pursuant to the
Registration Statement.
(u) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act has
indicated to the Company that it is considering (i) the downgrading,
suspension or withdrawal of, or any review for a possible change that
does not indicate the direction of the possible change in, any rating
assigned to the Company or any securities of the Company or (ii) any
change in the outlook for any rating of the Company or any securities
of the Company.
(v) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse
change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor
any of its subsidiaries has incurred any material liability or
obligation, direct or contingent.
(w) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall
be deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
SECTION 7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter, its directors, its officers and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and judgments (including, without limitation, any
legal or
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other expenses incurred in connection with investigating or defending
any matter, including any action, that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished in
writing to the Company by such Underwriter through you expressly for use
therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to such
Underwriter but only with reference to information relating to such
Underwriter furnished in writing to the Company by such Underwriter through
you expressly for use in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 7(a) and 7(b), the Underwriter shall not be
required to assume the defense of such action pursuant to this Section 7(c),
but may employ separate counsel and participate in the defense thereof, but
the fees and expenses of such counsel, except as provided below, shall be at
the expense of such Underwriter). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have
been specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include
both the indemnified party and the indemnifying party,
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<PAGE>
and the indemnified party shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such
action on behalf of the indemnified party). In any such case, the indemnifying
party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Donaldson, Lufkin & Jenrette Securities Corporation, in the case of parties
indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without
its written consent if the settlement is entered into more than twenty
business days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel
(in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such reimbursement
request. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does
not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause
7(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the Company on the one
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<PAGE>
hand and the Underwriters on the other hand in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by the
Underwriters, bear to the total price to the public of the Securities, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the
other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective principal amount of Securities purchased by each
of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
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<PAGE>
SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Securities under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New
York City time, on the date of this Agreement; and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
commenced or shall be pending before or contemplated by the
Commission.
(c) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice
have been given of any potential or intended downgrading, suspension
or withdrawal of, or of any review (or of any potential or intended
review) for a possible change that does not indicate the direction of
the possible change in, any rating of the Company or any securities
of the Company (including, without limitation, the placing of any of
the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term
is defined for purposes of Rule 436(g)(2) under the Act, (ii) there
shall not have occurred any change, nor shall any notice have been
given of any potential or intended change, in the outlook for any
rating of the Company or any securities of the Company by any such
rating organization and (iii) no such rating organization shall have
given notice that it has assigned (or is considering assigning) a
lower rating to the Securities than that on which the Securities were
marketed.
(d) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by _______________ and _______________, in
their capacities as the _______________ and _______________ of the
Company, confirming the matters set forth in Sections 6(v), 8(a),
8(b) and 8(c) and that the Company has complied with all of the
agreements and satisfied all of the conditions herein contained and
required to be complied with or satisfied by the Company on or prior
to the Closing Date.
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(e) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition,
financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole,
(ii) there shall not have been any change or any development
involving a prospective change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii)
neither the Company nor any of its subsidiaries shall have incurred
any liability or obligation, direct or contingent, the effect of
which, in any such case described in clause 8(e)(i), 8(e)(ii) or
8(e)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of the General Counsel of the Company, to the effect
that:
(i) each of the Company and its subsidiaries has been
duly incorporated, is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to
carry on its business as described in the Prospectus and to
own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of
property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries,
taken as a whole;
(iii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are
fully paid, non-assessable and not subject to any preemptive
or similar rights;
(iv) all of the outstanding shares of capital stock of
each of the Company's subsidiaries have been duly authorized
and
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validly issued and are fully paid and non-assessable, and
are owned by the Company, directly or indirectly through
one or more subsidiaries, free and clear of any Lien;
(v) the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company, enforceable
in accordance with their terms except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles of general applicability;
(vi) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with
its terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) rights of acceleration
and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(vii) this Agreement has been duly authorized, executed
and delivered by the Company;
(viii) the Registration Statement has become effective
under the Act, no stop order suspending its effectiveness
has been issued and no proceedings for that purpose are, to
the best of such counsel's knowledge after due inquiry,
pending before or contemplated by the Commission;
(ix) the statements under the captions
"---------------", "---------------", "---------------",
"---------------", "---------------", "---------------",
"Description of Securities" and "Underwriting" in the
Prospectus and Item 15 of Part II of the Registration
Statement, insofar as such statements constitute a summary
of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with
respect to such legal matters, documents and proceedings;
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[(x) such counsel is of the opinion ascribed to it in
the Prospectus under the caption "Taxation";]
(xi) neither the Company nor any of its subsidiaries is
in violation of its respective charter or by-laws and, to
the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its subsidiaries is in
default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its subsidiaries, taken
as a whole, to which the Company or any of its subsidiaries
is a party or by which the Company or any of its
subsidiaries or their respective property is bound;
(xii) the execution, delivery and performance of this
Agreement, the Indenture and the Securities by the Company,
the compliance by the Company with all the provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (A) require any
consent, approval, authorization or other order of, or
qualification with, any court or governmental body or
agency (except such as may be required under the securities
or Blue Sky laws of the various states), (B) conflict with
or constitute a breach of any of the terms or provisions
of, or a default under, the charter or by-laws of the
Company or any of its subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its subsidiaries, taken
as a whole, to which the Company or any of its subsidiaries
is a party or by which the Company or any of its
subsidiaries or their respective property is bound, (C)
violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective
property, (D) result in the imposition or creation of (or
the obligation to create or impose) a Lien under any
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound or
(E) result in the suspension, termination or revocation of
any Authorization of the Company or any of its subsidiaries
or any other impairment of the rights of the holder of any
such Authorization;
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(xiii) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is or could
be a party or to which any of their respective property is
or could be subject that are required to be described in the
Registration Statement or the Prospectus and are not so
described, or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so
described or filed as required;
(xiv) neither the Company nor any of its subsidiaries has
violated any Environmental Law or any provisions of the
Employee Retirement Income Security Act of 1974, as amended,
or the rules and regulations promulgated thereunder, except
for such violations which, singly or in the aggregate, would
not have a material adverse effect on the business,
prospects, financial condition or results of operation of
the Company and its subsidiaries, taken as a whole;
(xv) each of the Company and its subsidiaries has such
Authorizations of, and has made all filings with and notices
to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other
tribunals, including, without limitation, under any
applicable Environmental Laws, as are necessary to own,
lease, license and operate its respective properties and to
conduct its business, except where the failure to have any
such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a material
adverse effect on the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole; each such Authorization is
valid and in full force and effect and each of the Company
and its subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including,
without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice
or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder
of any such Authorization; and such Authorizations contain
no restrictions that are burdensome to the Company or any of
its
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subsidiaries; except where such failure to be valid and
in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a
material adverse effect on the business, prospects,
financial condition or results of operations of the Company
and its subsidiaries, taken as a whole;
(xvi) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of
the proceeds thereof as described in the Prospectus, will
not be, an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended;
(xvii) to the best of such counsel's knowledge after due
inquiry, there are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Act with respect to any
securities of the Company or to require the Company to
include such securities with the Securities registered
pursuant to the Registration Statement; and
(xviii) (A) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus
(except for financial statements and other financial data
included therein as to which no opinion need be expressed)
complied when so filed as to form with the Exchange Act, (B)
the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial
statements and other financial data included therein as to
which no opinion need be expressed) comply as to form with
the Act, (C) such counsel has no reason to believe that at
the time the Registration Statement became effective or on
the date of this Agreement, the Registration Statement and
the prospectus included therein (except for the financial
statements and other financial data as to which such counsel
need not express any belief and except for that part of the
Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act)
contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and
(D) such counsel has no reason to believe that the
Prospectus, as amended or supplemented, if applicable
(except for the financial statements and other financial
data, as aforesaid) contains any untrue statement of a
material fact or omits to state a material fact
22
<PAGE>
necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading.
The opinion of the General Counsel of the Company described in
Section 8(f) above shall be rendered to you at the request of the Company and
shall so state therein.
(g) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Davis Polk & Wardwell, counsel for the
Underwriters, as to the matters referred to in Sections 8(f)(v),
8(f)(vi), 8(f)(vii) and 8(f)(ix) (but only with respect to the
statements under the caption "Description of Securities" and
"Underwriting") and clauses 8(f)(xviii)(B), 8(f)(xviii)(C) and
8(f)(xviii)(D).
In giving such opinions with respect to the matters covered by
Section 8(f)(xviii), the General Counsel of the Company may state that his
opinion and belief are based upon his participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated therein by reference and review and
discussion of the contents thereof, but is without independent check or
verification except as specified. In giving such opinions with respect to the
matters covered by clauses 8(f)(xviii)(B), 8(f)(xviii)(C) and 8(f)(xviii)(D)
above, Davis Polk & Wardwell may state that their opinion and belief are based
upon their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (other than the documents
incorporated therein by reference) and review and discussion of the contents
thereof (including the documents incorporated therein by reference), but are
without independent check or verification except as specified.
(h) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to you, from KPMG
Peat Marwick LLP, independent public accountants, containing the
information and statements of the type ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the
financial statements and certain financial information contained in
or incorporated by reference into the Registration Statement and the
Prospectus.
[(i) The Securities shall have been duly listed[, subject to notice
of issuance, on the NYSE/AMEX] [for quotation on the Nasdaq National
Market.]]
23
<PAGE>
(j) The Securities shall have been rated "__" by [Standard & Poor's
Corporation] and "__" by [Moody's Investors Service, Inc.]
(k) The Underwriters shall have received a counterpart, conformed as
executed, of the Indenture which shall have been entered into by the
Company and the Trustee.
(l) The Company shall not have failed on or prior to the Closing
Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Company on or
prior to the Closing Date.
(m) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor any notice have
been given of any potential or intended downgrading, suspension or
withdrawal of, or of any review (or of any potential or intended
review) for a possible change that does not indicate the direction of
the possible change in, any rating of the Company or any securities
of the Company (including, without limitation, the placing of any of
the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term
is defined for purposes of Rule 436(g)(2) under the Act and (ii)
there shall not have occurred any change, nor shall any notice have
been given of any potential or intended change, in the outlook
for any rating of the Company or any securities of the Company by any
such rating organization.
SECTION 9. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) any outbreak or escalation of hostilities or other national
or international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market
the Securities on the terms and in the manner contemplated in the Prospectus,
(ii) the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the
Chicago Board of Trade or the Nasdaq National Market or limitation on prices
for securities or other instruments on any such exchange or the Nasdaq
National Market, (iii) the
24
<PAGE>
suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase the Securities which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion
which the principal amount of Securities set forth opposite its name in
Schedule bears to the aggregate principal amount of Securities which all the
non-defaulting Underwriters have agreed to purchase, or in such other
proportion as you may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the aggregate principal
amount of Securities which any Underwriter has agreed to purchase pursuant to
Section 2 hereof be increased pursuant to this Section 9 by an amount in
excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is
more than one-tenth of the aggregate principal amount of Securities to be
purchased by all Underwriters and arrangements satisfactory to you and the
Company for purchase of such Securities are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter and the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
25
<PAGE>
SECTION 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York 10172
and (ii) if to any Underwriter or to you, to you c/o Donaldson, Lufkin &
Jenrette Securities Corporation, 277 Park Avenue, New York, New York 10172,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters
set forth in or made pursuant to this Agreement shall remain operative and in
full force and effect, and will survive delivery of and payment for the
Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, the officers or directors of the Company or any person controlling
the Company, (ii) acceptance of the Securities and payment for them hereunder
and (iii) termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 9), the Company agrees to reimburse the
several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has
agreed to pay pursuant to Section 5(j) hereof. The Company also agrees to
reimburse the several Underwriters, their directors and officers and any
persons controlling any of the Underwriters for any and all fees and expenses
(including, without limitation, the fees disbursements of counsel) incurred by
them in connection with enforcing their rights hereunder (including, without
limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling
persons referred to herein, the Company's directors and the Company's officers
who sign the Registration Statement and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement.
The term "successors and assigns" shall not include a purchaser of any of the
Securities from any of the several Underwriters merely because of such
purchase.
26
<PAGE>
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
27
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE, INC.
By:
-------------------------------
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
Acting severally on behalf of themselves and the
several Underwriters named in Schedule
hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
--------------------------
Title:
28
<PAGE>
SCHEDULE I
PRINCIPAL AMOUNT OF
UNDERWRITERS SECURITIES
------------ -------------------
Donaldson, Lufkin & Jenrette Securities to be Purchased
Corporation
[Names of other Underwriters]
--------------
Total
<PAGE>
EXHIBIT 1.2
__________ SHARES
DONALDSON, LUFKIN & JENRETTE, INC.
PREFERRED STOCK
UNDERWRITING AGREEMENT
[Date]
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
As representatives of the several Underwriters
named in Schedule I hereto (the
"REPRESENTATIVES")
c/o Donaldson, Lufkin & Jenrette Securities
Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell ____________ shares of its preferred
stock, par value $0.01 per share (the "FIRM SHARES") to the several
underwriters named in Schedule I hereto (the "UNDERWRITERS"). The Company also
proposes to issue and sell to the several Underwriters not more than an
additional _______ shares of its Preferred Stock, par value $0.01 per share
(the "ADDITIONAL SHARES") if requested by the Underwriters as provided in
Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter
referred to collectively as the "SHARES". The shares of preferred stock of the
Company to be outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the "PREFERRED STOCK".
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
<PAGE>
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-3, including a
prospectus, relating to the Shares. The registration statement, as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Act, is hereinafter referred to as the "REGISTRATION
STATEMENT"; and the prospectus in the form first used to confirm sales of
Shares is hereinafter referred to as the "PROSPECTUS" (including, in the case
of all references to the Registration Statement or the Prospectus documents
incorporated therein by reference). If the Company has filed or is required
pursuant to the terms hereof to file a registration statement pursuant to Rule
462(b) under the Act registering additional shares of Preferred Stock (a "RULE
462(B) REGISTRATION STATEMENT"), then, unless otherwise specified, any
reference herein to the term "Registration Statement" shall be deemed to
include such Rule 462(b) Registration Statement. The terms "SUPPLEMENT" and
"AMENDMENT" or "AMEND" as used in this Agreement with respect to the
Registration Statement or the Prospectus shall include all documents
subsequently filed by the company with the commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the commission thereunder (collectively, the "EXCHANGE ACT") that are deemed
to be incorporated by reference in the Prospectus.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On
the basis of the representations and warranties contained in this Agreement,
and subject to its terms and conditions, the Company agrees to issue and sell,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company at a price per Share of $______ (the "PURCHASE PRICE") the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto.
[On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to
issue and sell the Additional Shares and the Underwriters shall have the right
to purchase, severally and not jointly, up to _______ Additional Shares from
the Company at the Purchase Price. Additional Shares may be purchased solely
for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The Underwriters may exercise their right to
purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company within 30 days after the date of this
Agreement. You shall give any such notice on behalf of the Underwriters and
such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof, which date shall be a business day (i) no earlier than two business
days after such notice has been given (and, in any event, no earlier than the
Closing Date (as hereinafter defined)) and
2
<PAGE>
(ii) no later than ten business days after such notice has been given. If any
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Additional
Shares to be purchased from the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total number
of Firm Shares.]
SECTION 3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose (i) to make a public offering of their
respective portions of the Shares as soon after the execution and delivery of
this Agreement as in your judgment is advisable and (ii) initially to offer
the Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 9:00 A.M., New York City time, on
__________ , 199_ (the "CLOSING DATE") at such place as you shall designate.
The Closing Date and the location of delivery of and payment for the Firm
Shares may be varied by agreement between you and the Company.
[Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at such place as you
shall designate at 9:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "OPTION
CLOSING DATE"). Any such Option Closing Date and the location of delivery of
and payment for such Additional Shares may be varied by agreement between you
and the Company.]
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date [or an Option Closing Date,
as the case may be.] Such certificates shall be made available to you for
inspection not later than 9:30 A.M., New York City time, on the business day
prior to the Closing Date [or the applicable Option Closing Date, as the case
may be.] Certificates in definitive form evidencing the Shares shall be
delivered to you on the Closing Date [or the applicable Option Closing Date,
as the case may be,] with any transfer taxes thereon duly paid by the Company,
for the respective accounts of the several Underwriters, against payment to
the Company of the Purchase Price therefor by wire transfer of Federal or
other funds immediately available in New York City.
SECTION 5. Agreements of the Company. The Company agrees with you:
3
<PAGE>
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information, (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of
the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any
amendment to the Registration Statement becomes effective, (iv) if
the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, when the Rule 462(b)
Registration Statement has become effective and (v) of the happening
of any event during the period referred to in Section 5(d) below
which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to
or changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will use its best efforts to
obtain the withdrawal or lifting of such order at the earliest
possible time.
(b) To furnish ___ signed copies of the Registration Statement as
first filed with the Commission and of each amendment to it,
including all exhibits and documents incorporated therein by
reference, and to furnish to you and each Underwriter designated by
you such number of conformed copies of the Registration Statement as
so filed and of each amendment to it, without exhibits but including
documents incorporated therein by reference, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of which shall
be satisfactory to you, and to file the Prospectus in such form with
the Commission within the applicable period specified in Rule 424(b)
under the Act; during the period specified in Section 5(d) below, not
to file any further amendment to the Registration Statement and not
to make any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you shall
reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or amendment or
supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of the Shares by you, and to use its
best efforts to cause any such amendment to the Registration
Statement to become promptly effective.
4
<PAGE>
(d) Prior to 10:00 A.M., New York City time, on the first business
day after the date of this Agreement and from time to time thereafter
for such period as in the opinion of counsel for the Underwriters a
prospectus is required by law to be delivered in connection with
sales by an Underwriter or a dealer, to furnish in New York City to
each Underwriter and any dealer as many copies of the Prospectus (and
of any amendment or supplement to the Prospectus) and any documents
incorporated therein by reference as such Underwriter or dealer may
reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion
of counsel for the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus
to comply with applicable law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus
so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply
with applicable law, and to furnish to each Underwriter and to any
dealer as many copies thereof as such Underwriter or dealer may
reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with
you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may request, to continue
such registration or qualification in effect so long as required for
distribution of the Shares and to file such consents to service of
process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the
Company shall not be required in connection therewith to qualify as a
foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general
consent to service of process or taxation other than as to matters
and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the
Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its security holders
as soon as practicable an earnings statement covering the twelve-month
5
<PAGE>
period ending __________, 199_ that shall satisfy the provisions of
Section 11(a) of the Act, and to advise you in writing when such
statement has been so made available.
(h) So long as the Shares are outstanding, (i) to make generally
available as soon as practicable after the end of each fiscal year to
the record holders of the Shares a financial report of the Company
and its subsidiaries on a consolidated basis (and a similar financial
report of all unconsolidated subsidiaries, if any), all such
financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of
cash flows and a consolidated statement of shareholders' equity as of
the end of and for such fiscal year, together with comparable
information as of the end of and for the preceding year, certified by
independent public accountants and (ii) to make generally available
as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations
and a consolidated statement of cash flows (and similar financial
reports of all unconsolidated subsidiaries, if any) as of the end of
and for such period, and for the period from the beginning of such
year to the close of such quarterly period, together with comparable
information for the corresponding periods of the preceding year.
(i) So long as the Shares are outstanding, to furnish to you as soon
as available copies of all reports or other communications furnished
to its security holders or furnished to or filed with the Commission
or any national securities exchange on which any class of securities
of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may
reasonably request.
(j) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to
be paid all expenses incident to the performance of its obligations
under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in
connection with the registration and delivery of the Shares under the
Act and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Registration
Statement (including financial statements and exhibits), any
preliminary prospectus, the Prospectus and all amendments and
supplements to any of the foregoing, including the mailing and
delivering of copies thereof to the Underwriters and dealers in the
quantities specified herein, (ii) all costs and expenses related to
the
6
<PAGE>
transfer and delivery of the Shares to the Underwriters, including
any transfer or other taxes payable thereon, (iii) all costs of
printing or producing this Agreement and any other agreements or
documents in connection with the offering, purchase, sale or delivery
of the Shares, (iv) all expenses in connection with the registration
or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states and all costs of
printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and fees
and disbursements of counsel for the Underwriters in connection with
such registration or qualification and memoranda relating thereto),
(v) the filing fees and disbursements of counsel for the Underwriters
in connection with the review and clearance of the offering of the
Shares by the National Association of Securities Dealers, Inc., (vi)
all fees and expenses in connection with the preparation and filing
of the registration statement on Form 8-A relating to the Shares and
all costs and expenses incident to the listing of the Shares on [the
Nasdaq National Market/NYSE/AMEX] [and other national securities
exchanges and foreign stock exchanges], (vii) the cost of printing
certificates representing the Shares, (viii) the costs and charges of
any transfer agent, registrar and/or depositary (including the
Depository Trust Company), and (ix) all other costs and expenses
incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section
5(i).
[(k) To use its best efforts to [list for quotation the Shares on the
Nasdaq National Market and to maintain the listing of the Shares on
the Nasdaq National Market] [list, subject to notice of issuance, the
Shares on the NYSE/AMEX and to maintain the listing of the Shares on
the NYSE/AMEX] for so long as the Securities are outstanding.]
(l) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell
or otherwise transfer or dispose of any Preferred Stock of the
Company or any warrants, rights or options to purchase or otherwise
acquire Preferred Stock of the Company substantially similar to the
Shares (other than the Shares), without the prior written consent of
a majority of the unaffiliated Representatives.
(m) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the
Company prior to the Closing Date [or any Option Closing Date, as the
case may be,] and to satisfy all conditions precedent to the delivery
of the Shares.
7
<PAGE>
(n) If the Registration Statement at the time of the effectiveness
of this Agreement does not cover all of the Shares, to file a Rule
462(b) Registration Statement with the Commission registering the
Shares not so covered in compliance with Rule 462(b) by 10:00 P.M.,
New York City time, on the date of this Agreement and to pay to the
Commission the filing fee for such Rule 462(b) Registration Statement
at the time of the filing thereof or to give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act.
(o) The company will, for so long as any of the Preferred Stock is
outstanding and if, in the reasonable judgement of any Underwriter,
such Underwriter or any of its affiliates (as defined in the Act) is
required to deliver a prospectus in connection with sales of
Preferred Stock (i) periodically amend the Registration Statement so
that the information contained in the Registration Statement complies
with the requirements of Section 10(a) of the Act, (ii) amend the
Registration Statement or amend or supplement the Prospectus when
necessary to reflect any material changes in the information provided
therein and promptly file such amendment or supplement with the
commission, (iii) provide such Underwriter with copies of each
amendment or supplement so filed and such other documents, including
opinion of counsel and "comfort" letter, as such Underwriter may
reasonably request and (iv) indemnify such Underwriter and if
applicable, contribute to any amount paid or payable by such
Underwriter in a manner substantially identical to the specified in
Section 7 hereof (with appropriate modifications).
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company after
the effectiveness of this Agreement); any Rule 462(b) Registration
Statement filed after the effectiveness of this Agreement will become
effective no later than 10:00 P.M., New York City time, on the date
of this Agreement; and no stop order suspending the effectiveness of
the Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the
Exchange Act; (ii) The Registration Statement (other than any Rule
462(b) Registration
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Statement to be filed by the Company after the effectiveness of this
Agreement), when it became effective, did not contain and, as
amended, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Act, (iv) if the Company is required to file a Rule
462(b) Registration Statement after the effectiveness of this
Agreement, such Rule 462(b) Registration Statement and any amendments
thereto, when they become effective (A) will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (B) will comply in all material respects
with the Act and (v) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, complied when so filed in
all material respects with the Act, and did not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions
in any preliminary prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described
in the Prospectus and to own, lease and operate its properties, and
each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each
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jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect
on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
(e) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
granted or issued by the Company or any of its subsidiaries relating
to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of the Company or any of its
subsidiaries, except as otherwise disclosed in the Registration
Statement.
(f) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights;
and the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as provided by
this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject
to any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, and are owned by the Company,
directly or indirectly through one or more subsidiaries, free and
clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature.
(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries or their
respective property is bound.
(j) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby will
10
<PAGE>
not (i) require any consent, approval, authorization or other order
of, or qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue Sky laws
of the various states), (ii) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of its subsidiaries or any indenture,
loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective property
is bound, (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any
of its subsidiaries or their respective property or (iv) result in
the suspension, termination or revocation of any Authorization (as
defined below) of the Company or any of its subsidiaries or any other
impairment of the rights of the holder of any such Authorization.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or
could be a party or to which any of their respective property is or
could be subject that are required to be described in the
Registration Statement or the Prospectus and are not so described;
nor are there any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement that are not so described or filed as required.
(l) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS") or any provisions of the Employee Retirement
Income Security Act of 1974, as amended, or the rules and regulations
promulgated thereunder, except for such violations which, singly or
in the aggregate, would not have a material adverse effect on the
business, prospects, financial condition or results of operation of
the Company and its subsidiaries, taken as a whole.
(m) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "AUTHORIZATION") of, and has made all filings
with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals,
including, without limitation, under any applicable Environmental
Laws, as are necessary to
11
<PAGE>
own, lease, license and operate its respective properties and to
conduct its business, except where the failure to have any such
Authorization or to make any such filing or notice would not, singly
or in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole. Each such
Authorization is valid and in full force and effect and each of the
Company and its subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and no event has occurred (including, without limitation,
the receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in
any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that
are burdensome to the Company or any of its subsidiaries; except
where such failure to be valid and in full force and effect or to be
in compliance, the occurrence of any such event or the presence of
any such restriction would not, singly or in the aggregate, have a
material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(n) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any related
constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a
material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(o) This Agreement has been duly authorized, executed and
delivered by the Company.
(p) KPMG Peat Marwick LLP are independent public accountants with
respect to the Company and its subsidiaries as required by the Act.
(q) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes,
present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and its
subsidiaries on the basis
12
<PAGE>
stated therein at the respective dates or for the respective periods
to which they apply; such statements and related schedules and notes
have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as disclosed therein; the supporting schedules, if any,
included in the Registration Statement present fairly in accordance
with generally accepted accounting principles the information
required to be stated therein; and the other financial and
statistical information and data set forth in the Registration
Statement and the Prospectus (and any amendment or supplement
thereto) are, in all material respects, accurately presented and
prepared [on a basis consistent with such financial statements and
the books and records of the Company].
(r) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended.
(s) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect
to any securities of the Company or to require the Company to include
such securities with the Shares registered pursuant to the
Registration Statement.
(t) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act has
indicated to the Company that it is considering (i) the downgrading,
suspension or withdrawal of, or any review for a possible change that
does not indicate the direction of the possible change in, any rating
assigned to the Company or any securities of the Company or (ii) any
change in the outlook for any rating of the Company or any securities
of the Company.
(u) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse
change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither
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<PAGE>
the Company nor any of its subsidiaries has incurred any material
liability or obligation, direct or contingent.
(v) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall
be deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
SECTION 7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter, its directors, its officers and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and judgments (including, without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action, that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished in
writing to the Company by such Underwriter through you expressly for use
therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to such
Underwriter but only with reference to information relating to such
Underwriter furnished in writing to the Company by such Underwriter through
you expressly for use in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
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<PAGE>
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 7(a) and 7(b), the Underwriter shall not be
required to assume the defense of such action pursuant to this Section 7(c),
but may employ separate counsel and participate in the defense thereof, but
the fees and expenses of such counsel, except as provided below, shall be at
the expense of such Underwriter). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have
been specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include
both the indemnified party and the indemnifying party, and the indemnified
party shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party
shall not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
indemnified parties and all such fees and expenses shall be reimbursed as they
are incurred. Such firm shall be designated in writing by Donaldson, Lufkin &
Jenrette Securities Corporation, in the case of parties indemnified pursuant
to Section 7(a), and by the Company, in the case of parties indemnified
pursuant to Section 7(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action
(i) effected with its written consent or (ii) effected without its written
consent if the settlement is entered into more than twenty business days after
the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case
where such fees and expenses are at the expense of the indemnifying party)
and, prior to the date of such settlement, the indemnifying party shall have
failed to comply with such reimbursement request. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could
have been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are or could have been the
subject matter of such action
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<PAGE>
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause 7(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 7(d)(i) above
but also the relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company, and the
total underwriting discounts and commissions received by the Underwriters,
bear to the total price to the public of the Shares, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by
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<PAGE>
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective number of Shares purchased by each of the
Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New
York City time, on the date of this Agreement; and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
commenced or shall be pending before or contemplated by the
Commission.
(c) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice
have been given of any potential or intended downgrading, suspension
or withdrawal of, or of any review (or of any potential or intended
review) for a possible change that does not indicate the direction of
the possible change in, any rating of the Company or any securities
of the Company (including, without limitation, the placing of any of
the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term
is defined for purposes of Rule 436(g)(2) under the Act, (ii) there
shall not have occurred any change, nor shall any notice have been
given of any potential or intended change, in the outlook for any
rating of the Company or any securities of the Company by any such
rating organization and (iii) no such rating organization shall have
given
17
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notice that it has assigned (or is considering assigning) a lower
rating to the Securities than that on which the Securities were
marketed.
(d) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by _______________ and _______________, in
their capacities as the _______________ and _______________ of the
Company, confirming the matters set forth in Sections 6(u), 8(a),
8(b) and 8(c) and that the Company has complied with all of the
agreements and satisfied all of the conditions herein contained and
required to be complied with or satisfied by the Company on or prior
to the Closing Date.
(e) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition,
financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole,
(ii) there shall not have been any change or any development
involving a prospective change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii)
neither the Company nor any of its subsidiaries shall have incurred
any liability or obligation, direct or contingent, the effect of
which, in any such case described in clause 8(e)(i), 8(e)(ii) or
8(e)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of the General Counsel of the Company, to the effect
that:
(i) each of the Company and its subsidiaries has been
duly incorporated, is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to
carry on its business as described in the Prospectus and to
own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of
property requires such
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qualification, except where the failure to be so qualified
would not have a material adverse effect on the business,
prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are
fully paid, non-assessable and not subject to any preemptive
or similar rights;
(iv) the Shares have been duly authorized and, when
issued and delivered to the Underwriters against payment
therefor as provided by this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or similar
rights;
(v) all of the outstanding shares of capital stock of
each of the Company's subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable,
and are owned by the Company, directly or indirectly through
one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of
any nature;
(vi) this Agreement has been duly authorized, executed
and delivered by the Company;
(vii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(viii) the Registration Statement has become effective
under the Act, no stop order suspending its effectiveness
has been issued and no proceedings for that purpose are, to
the best of such counsel's knowledge after due inquiry,
pending before or contemplated by the Commission;
(ix) the statements under the captions
"---------------", "---------------", "---------------",
"---------------", "---------------", "---------------",
"Description of Capital Stock" and "Underwriting" in the
Prospectus and Item 15 of Part II of the Registration
Statement, insofar as such statements constitute a summary
of the legal matters, documents or proceedings referred to
therein, fairly
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<PAGE>
present the information called for with respect to such legal
matters, documents and proceedings;
(x) neither the Company nor any of its subsidiaries is
in violation of its respective charter or by-laws and, to
the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its subsidiaries is in
default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its subsidiaries, taken
as a whole, to which the Company or any of its subsidiaries
is a party or by which the Company or any of its
subsidiaries or their respective property is bound;
(xi) the execution, delivery and performance of this
Agreement by the Company, the compliance by the Company with
all the provisions hereof and the consummation of the
transactions contemplated hereby will not (A) require any
consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue
Sky laws of the various states), (B) conflict with or
constitute a breach of any of the terms or provisions of, or
a default under, the charter or by-laws of the Company or
any of its subsidiaries or any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or
their respective property is bound, (C) violate or conflict
with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or
agency having jurisdiction over the Company, any of its
subsidiaries or their respective property or (D) result in
the suspension, termination or revocation of any
Authorization of the Company or any of its subsidiaries or
any other impairment of the rights of the holder of any such
Authorization;
(xii) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is or could
be a party or to which any of their respective property is
or could be subject that are required to be described in the
Registration Statement or the Prospectus and are not so
described, or of any statutes, regulations,
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contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that
are not so described or filed as required;
(xiii) neither the Company nor any of its subsidiaries has
violated any Environmental Law or any provisions of the
Employee Retirement Income Security Act of 1974, as amended,
or the rules and regulations promulgated thereunder, except
for such violations which, singly or in the aggregate, would
not have a material adverse effect on the business,
prospects, financial condition or results of operation of
the Company and its subsidiaries, taken as a whole;
(xiv) each of the Company and its subsidiaries has such
Authorizations of, and has made all filings with and notices
to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other
tribunals, including, without limitation, under any
applicable Environmental Laws, as are necessary to own,
lease, license and operate its respective properties and to
conduct its business, except where the failure to have any
such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a material
adverse effect on the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole; each such Authorization is
valid and in full force and effect and each of the Company
and its subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including,
without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice
or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder
of any such Authorization; and such Authorizations contain
no restrictions that are burdensome to the Company or any of
its subsidiaries; except where such failure to be valid and
in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a
material adverse effect on the business, prospects,
financial condition or results of operations of the Company
and its subsidiaries, taken as a whole;
21
<PAGE>
(xv) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not
be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xvi) to the best of such counsel's knowledge after due
inquiry, there are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Act with respect to any
securities of the Company or to require the Company to
include such securities with the Shares registered pursuant
to the Registration Statement; and
(xvii) (A) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus
(except for financial statements and other financial data
included therein as to which no opinion need be expressed)
complied when so filed as to form with the Exchange Act, (B)
the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial
statements and other financial data included therein as to
which no opinion need be expressed) comply as to form with
the Act, (C) such counsel has no reason to believe that at
the time the Registration Statement became effective or on
the date of this Agreement, the Registration Statement and
the prospectus included therein (except for the financial
statements and other financial data as to which such counsel
need not express any belief) contained any untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading and (D) such counsel has
no reason to believe that the Prospectus, as amended or
supplemented, if applicable (except for the financial
statements and other financial data, as aforesaid) contains
any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
The opinion of the General Counsel of the Company described in
Section 8(f) above shall be rendered to you at the request of the Company and
shall so state therein.
22
<PAGE>
(g) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Davis Polk & Wardwell, counsel for the
Underwriters, as to the matters referred to in Sections 8(f)(iv),
8(f)(vi) and 8(f)(ix) (but only with respect to the statements under
the caption "Description of Capital Stock" and "Underwriting") and
clauses 8(f)(xvii)(B), 8(f)(xvii)(C) and 8(f)(xvii)(D).
In giving such opinions with respect to the matters covered by
Section 8(f)(xvii), the General Counsel of the Company may state that his
opinion and belief are based upon his participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated therein by reference and review and
discussion of the contents thereof, but is without independent check or
verification except as specified. In giving such opinions with respect to the
matters covered by clauses 8(f)(xvii)(B), 8(f)(xvii)(C) and 8(f)(xvii)(D)
above, Davis Polk & Wardwell may state that their opinion and belief are based
upon their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (other than the documents
incorporated therein by reference) and review and discussion of the contents
thereof (including the documents incorporated therein by reference), but are
without independent check or verification except as specified.
(h) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to you, from KPMG
Peat Marwick LLP, independent public accountants, containing the
information and statements of the type ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the
financial statements and certain financial information contained in
or incorporated by reference into the Registration Statement and the
Prospectus.
[(i) The Shares shall have been duly listed[, subject to notice of
issuance, on the NYSE/AMEX] [for quotation on the Nasdaq National
Market.]
(j) The Company shall not have failed on or prior to the Closing
Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Company on or
prior to the Closing Date.
(k) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor any notice have
been given of any potential or intended downgrading, suspension or
withdrawal
23
<PAGE>
of, or of any review (or of any potential or intended review) for a
possible change that does not indicate the direction of the possible
change in, any rating of the Company or any securities of the Company
(including, without limitation, the placing of any of the foregoing
ratings on credit watch with negative or developing implications or
under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined
for purposes of Rule 436(g)(2) under the Act and (ii) there shall not
have occurred any change, nor shall any notice have been given of any
potential or intended change, in the outlook for any rating of the
Company or any securities of the Company by any such rating
organization.
[The several obligations of the Underwriters to purchase any
Additional Shares hereunder are subject to the delivery to you on the
applicable Option Closing Date of such documents as you may reasonably request
with respect to the good standing of the Company, the due authorization and
issuance of such Additional Shares and other matters related to the issuance
of such Additional Shares.]
SECTION 9. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) any outbreak or escalation of hostilities or other national
or international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus, (ii)
the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the
Chicago Board of Trade or the Nasdaq National Market or limitation on prices
for securities or other instruments on any such exchange or the Nasdaq
National Market, (iii) the suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which
in your opinion materially and adversely affects, or will materially and
adversely affect, the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
24
<PAGE>
government or agency in respect of its monetary or fiscal affairs which in
your opinion has a material adverse effect on the financial markets in the
United States.
If on the Closing Date [or on an Option Closing Date, as the case may
be,] any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares [or Additional Shares, as the case may be,] which it has or they
have agreed to purchase hereunder on such date and the aggregate number of
Firm Shares [or Additional Shares, as the case may be,] which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the total number of Firm Shares [or Additional Shares,
as the case may be,] to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I
bears to the total number of Firm Shares which all the non-defaulting
Underwriters have agreed to purchase, or in such other proportion as you may
specify, to purchase the Firm Shares or Additional Shares, as the case may be,
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Firm
Shares [or Additional Shares, as the case may be,] which any Underwriter has
agreed to purchase pursuant to Section 2 hereof be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such number of Firm Shares
[or Additional Shares, as the case may be,] without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares to be purchased by all Underwriters and
arrangements satisfactory to you and the Company for purchase of such Firm
Shares are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter and
the Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. [If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such date, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase such Additional Shares or (ii) purchase not less than the number
of Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase on such date in the absence of such default.] Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
25
<PAGE>
SECTION 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York 10172
and (ii) if to any Underwriter or to you, to you c/o Donaldson, Lufkin &
Jenrette Securities Corporation, 277 Park Avenue, New York, New York 10172,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters
set forth in or made pursuant to this Agreement shall remain operative and in
full force and effect, and will survive delivery of and payment for the
Shares, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the officers or directors of
any Underwriter, any person controlling any Underwriter, the Company, the
officers or directors of the Company or any person controlling the Company,
(ii) acceptance of the Shares and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 9), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has
agreed to pay pursuant to Section 5(i) hereof. The Company also agrees to
reimburse the several Underwriters, their directors and officers and any
persons controlling any of the Underwriters for any and all fees and expenses
(including, without limitation, the fees disbursements of counsel) incurred by
them in connection with enforcing their rights hereunder (including, without
limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling
persons referred to herein, the Company's directors and the Company's officers
who sign the Registration Statement and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement.
The term "successors and assigns" shall not include a purchaser of any of the
Shares from any of the several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
26
<PAGE>
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE,
INC.
By:
-------------------------------
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
[NAMES OF OTHER CO-MANAGERS]
Acting severally on behalf of themselves and the
several Underwriters named in Schedule I
hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
--------------------------------
Title:
27
<PAGE>
SCHEDULE I
NUMBER OF FIRM SHARES
UNDERWRITERS TO BE PURCHASED
------------ ---------------------
Donaldson, Lufkin & Jenrette Securities
Corporation
[Names of other Underwriters]
-----------
Total
<PAGE>
EXHIBIT 4.1
- -------------------------------------------------------------------------------
DONALDSON, LUFKIN & JENRETTE, INC., Company
and
THE CHASE MANHATTAN BANK, Trustee
SENIOR INDENTURE
Dated as of November [ ], 1997
------------------
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions....................................................1
SECTION 1.02. Other Definitions..............................................6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act..............7
SECTION 1.04. Rules of Construction..........................................7
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating................................................8
SECTION 2.02. Execution and Authentication...................................8
SECTION 2.03. Amount Unlimited; Issuable in Series..........................10
SECTION 2.04. Denomination and Date of Securities; Payments of Interest.....13
SECTION 2.05. Registrar and Paying Agent; Agents Generally..................13
SECTION 2.06. Paying Agent to Hold Money in Trust...........................14
SECTION 2.07. Transfer and Exchange.........................................15
SECTION 2.08. Replacement Securities........................................18
SECTION 2.09. Outstanding Securities........................................18
SECTION 2.10. Temporary Securities..........................................19
SECTION 2.11. Cancellation..................................................20
SECTION 2.12. CUSIP Numbers.................................................20
SECTION 2.13. Defaulted Interest............................................20
SECTION 2.14. Series May Include Tranches...................................20
SECTION 2.15. Computation of Interest.......................................21
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of Article......................................21
SECTION 3.02. Notice of Redemption; Partial Redemptions.....................21
SECTION 3.03. Payment of Securities Called for Redemption...................23
SECTION 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption....................................24
SECTION 3.05. Mandatory and Optional Sinking Funds..........................24
<PAGE>
PAGE
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.........................................27
SECTION 4.02. Maintenance of Office or Agency...............................28
SECTION 4.03. Negative Pledge...............................................29
SECTION 4.04. Certificate of Trustee........................................30
SECTION 4.05. Reports by the Company........................................30
SECTION 4.06. Calculation of Original Issue Discount........................30
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc...................................30
SECTION 5.02. Successor Substituted.........................................31
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.............................................31
SECTION 6.02. Acceleration..................................................33
SECTION 6.03. Other Remedies................................................35
SECTION 6.04. Waiver of past Defaults.......................................35
SECTION 6.05. Control by Majority...........................................36
SECTION 6.06. Limitation on Suits...........................................36
SECTION 6.07. Rights of Holder to Receive Payment...........................37
SECTION 6.08. Collection Suit by Trustee....................................37
SECTION 6.09. Trustee May File Proofs of Claim..............................37
SECTION 6.10. Application of Proceeds.......................................38
SECTION 6.11. Restoration of Rights and Remedies............................39
SECTION 6.12. Undertaking for Costs.........................................39
SECTION 6.13. Rights and Remedies Cumulative................................39
SECTION 6.14. Delay or Omission Not Waiver..................................40
ARTICLE 7
TRUSTEE
SECTION 7.01. General.......................................................40
SECTION 7.02. Certain Rights of Trustee.....................................40
SECTION 7.03. Individual Rights of Trustee..................................42
SECTION 7.04. Trustee's Disclaimer..........................................42
ii
<PAGE>
PAGE
SECTION 7.05. Notice of Default.............................................43
SECTION 7.06. Reports by Trustee to Holders.................................43
SECTION 7.07. Compensation and Indemnity....................................43
SECTION 7.08. Replacement of Trustee........................................44
SECTION 7.09. Successor Trustee by Merger, Etc..............................45
SECTION 7.10. Eligibility...................................................46
SECTION 7.11. Money Held in Trust...........................................46
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment.........................46
SECTION 8.02. Defeasance....................................................47
SECTION 8.03. Covenant Defeasance...........................................48
SECTION 8.04. Application of Trust Money....................................49
SECTION 8.05. Repayment to Company..........................................49
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders....................................50
SECTION 9.02. With Consent of Holders.......................................51
SECTION 9.03. Revocation and Effect of Consent..............................52
SECTION 9.04. Notation on or Exchange of Securities.........................53
SECTION 9.05. Trustee to Sign Amendments, Etc...............................53
SECTION 9.06. Conformity with Trust Indenture Act...........................53
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939..................................53
SECTION 10.02. Notices......................................................54
SECTION 10.03. Certificate and Opinion as to Conditions Precedent...........55
SECTION 10.04. Statements Required in Certificate or Opinion................55
SECTION 10.05. Evidence of Ownership........................................56
SECTION 10.06. Rules by Trustee, Paying Agent and Registrar.................56
SECTION 10.07. Payment Date Other than a Business Day.......................57
SECTION 10.08. Governing Law................................................57
SECTION 10.09. No Adverse Interpretation of Other Agreements................57
SECTION 10.10. Successors...................................................57
SECTION 10.11. Duplicate Originals..........................................57
iii
<PAGE>
PAGE
SECTION 10.12. Separability.................................................57
SECTION 10.13. Table of Contents, Headings, Etc.............................57
SECTION 10.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability...................57
SECTION 10.15. Judgment Currency............................................58
iv
<PAGE>
INDENTURE, dated as of November [ ], 1997, between Donaldson, Lufkin
& Jenrette, Inc., a Delaware corporation, as the Company, and The Chase
Manhattan Bank, a New York banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time
of its debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "SECURITIES") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration of the Securities, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of any and all series thereof and of the
coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"AGENT" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"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) and in the case of London, will, if practicable, be the Financial
Times (London Edition)) 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
<PAGE>
week and of general circulation in The City of New York or London, 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 RESOLUTION" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof, certified by the
secretary or an assistant secretary of the Company to have been duly adopted
and to be in full force and effect on the date of certification, and delivered
to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that is not
a day on which banking institutions are authorized or required by law or
regulation to close, in the city (or in any of the cities, if more than one)
unless otherwise specified, in which amounts are payable, as specified in the
form of such Security.
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or equity,
including, without limitation, all Common Stock and Preferred Stock.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution 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 at such time.
"COMMON STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding
or issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"COMPANY" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 450 West 33rd Street, 15th Floor, New York, New York 10001
Attention: Corporate Trust Trustee Administration.
2
<PAGE>
"DEFAULT" means any Event of Default as defined in Section 6.01 and
any event that is, or after notice or passage of time or both would be, an
Event of Default.
"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 2.03
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.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of any computation required or permitted
hereunder.
"HOLDER" or "SECURITYHOLDER" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"INDENTURE" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections
2.01 and 2.03.
"NON-U.S. PERSON" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"OFFICER" means, with respect to the Company, the chairman of the
board of directors, the president, the executive vice president, any senior
vice president, the treasurer or any assistant treasurer, or the secretary or
any assistant secretary.
"OFFICERS' CERTIFICATE" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president, the
executive vice president or any senior vice president and (ii) by the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, complying with Section 10.04 and delivered to the Trustee. Each
such certificate shall comply with Section 314 of the Trust Indenture Act and
include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.04.
3
<PAGE>
"OPINION OF COUNSEL" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the
Trustee and complying with Section 10.04. Each such opinion shall comply with
Section 314 of the Trust Indenture Act and include the statements provided in
Section 10.04, if and to the extent required thereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of authentication 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
6.02.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"PRINCIPAL" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the
Security.
"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 2.02, and bearing the legend prescribed in
Section 2.02.
"REGISTERED SECURITY" means any Security registered on the Security
Register (as defined in Section 2.05).
4
<PAGE>
"RESPONSIBLE OFFICER" shall mean when used with respect to the
Trustee any officer within the Corporate Trust Office including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary or Assistant Treasurer or any other officer of the Trustee
customarily performing functions similar to those performed by any of
the above designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"SECURITIES" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"TRUSTEE" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the provisions
of Article 7 and thereafter means such successor.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"UNITED STATES BANKRUPTCY CODE" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and shall also include a depository receipt issued by a
bank or trust company as custodian with
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respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"VOTING STOCK" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"YIELD TO MATURITY" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series
are issuable from time to time, on a Security of such series, calculated at
the time of issuance of such series in the case of clause (i) or at the time
of issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or
on such Security, and calculated in accordance with the constant interest
method or such other accepted financial practice as is specified in the terms
of such Security.
SECTION 1.02. Other Definitions. Each of the following terms is
defined in the section set forth opposite such term:
TERM SECTION
Authenticating Agent 2.2
cash transaction 7.3
DLJSC 4.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Permitted Liens 4.3
record date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
The following terms used in this Indenture that are defined by the Trust
Indenture Act have the following meanings:
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Holder or a Securityholder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined
herein have the meanings assigned to them therein. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(b) words in the singular include the plural, and words in the plural
include the singular;
(c) "HEREIN," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(d) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
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(e) use of masculine, feminine or neuter pronouns should not be
deemed a limitation, and the use of any such pronouns should be construed to
include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or
with any rules of any securities exchange or usage, all as may be determined
by the officers executing such Securities as evidenced by their execution of
the Securities. Unless otherwise so established, Unregistered Securities shall
have coupons attached.
SECTION 2.02. Execution and Authentication. The chairman of the board
of directors, the president, the executive vice president or any senior vice
president and the treasurer or any assistant treasurer or the secretary or any
assistant secretary shall execute the Securities (other than coupons) for the
Company by facsimile or manual signature in the name and on behalf of the
Company. The seal of the Company, if any, shall be reproduced on the
Securities. If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "AUTHENTICATING AGENT") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on
the Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
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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 together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and make
available for delivery such Securities to or upon the written order of the
Company. In authenticating any Securities of a series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of
such series, and shall be fully protected in relying upon, unless and until
such documents have been superseded or revoked:
(a) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and
terms of the Securities of that series were established;
(b) an Officers' Certificate setting forth the form or forms and
terms of the Securities, stating that the form or forms and terms of the
Securities of such series have been, or will be when established in accordance
with such procedures as shall be referred to therein, established in
compliance with this Indenture; and
(c) an Opinion of Counsel substantially to the effect that the form
or forms and terms of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred to
therein, established in compliance with this Indenture and that the
supplemental indenture, to the extent applicable, and Securities have been
duly authorized and, if executed and authenticated in accordance with the
provisions of the Indenture and delivered to and duly paid for by the
purchasers thereof on the date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting creditors' rights generally,
general principles of equity, and such other matters as shall be specified
therein.
If the Company shall establish pursuant to Section 2.03 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and
the Trustee shall authenticate and make available for delivery 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 in such form and not yet canceled, (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 its
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custodian 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 a
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."
SECTION 2.03. 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 each such
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 a Board Resolution or one or more indentures supplemental hereto, prior to
the initial issuance of Securities of any series (subject to the last sentence
of this Section 2.03),
(a) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(b) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture and
any limitation on the ability of the Company to increase such aggregate
principal amount after the initial issuance of the Securities of that series
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, or upon redemption of, other
Securities of the series pursuant hereto);
(c) the date or dates on which the Principal of the Securities of the
series is payable (which date or dates may be fixed or extendible);
(d) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall be
payable and (in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable and/or the
method by which such rate or rates or date or dates shall be determined;
(e) if other than as provided in Section 4.02, the place or places
where the Principal of and any interest on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
exchange, notices,
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demands to or upon the Company in respect of the Securities of the series and
this Indenture may be served and notice to Holders may be published;
(f) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the
price or prices at which and the period or periods within which and any of the
terms and conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(i) if other than the entire principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof;
(j) if other than the coin or currency in which the Securities of
the series are denominated, the coin or currency in which payment of the
Principal of or interest on the Securities of the series shall be payable or
if the amount of payments of Principal of and/or interest on the Securities of
the series may be determined with reference to an index based on a coin or
currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(k) if payment of the Principal of and interest on the Securities of
the series shall be payable in currency or currencies other than the currency
of the United States, the manner in which any such currency shall be valued
against other currencies in which any other Securities shall be payable;
(l) whether the Securities of the series or any portion thereof 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 herein, the terms
upon which Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa;
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(m) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by non-U.S. persons 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;
(n) if the Securities of the 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;
(o) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(p) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all Securities
of the series), which provisions may be in addition to, in substitution for,
or in modification of (or any combination of the foregoing) the provisions of
Article 8;
(q) if the Securities of the series are issuable in whole or in part
as one or more Registered Global Securities, the identity of the Depositary
for such Registered Global Security or Securities;
(r) any other events of default or covenants with respect to the
Securities of the series; and
(s) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the terms
of this Indenture, if so provided by or pursuant to such Board Resolution or
in any such indenture supplemental hereto and any forms and terms of
Securities to be issued from time to time may be completed and established
from time to time prior to the issuance thereof by procedures described in
such Board Resolution or supplemental indenture.
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SECTION 2.04. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. 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, as evidenced by
their execution thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest and shall be payable on the dates, established as contemplated by
Section 2.03.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the payment of
the interest due on such interest payment date for such series, in which case
the provisions of Section 2.13 shall apply. The term "RECORD DATE" as used
with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.03, or, if no such date is so
established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.05. Registrar and Paying Agent; Agents Generally. The
Company shall maintain an office or agency where Securities may be presented
for registration, registration of transfer or exchange (the "REGISTRAR") and
an office or agency where Securities may be presented for payment (the "PAYING
AGENT"), which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Registered Securi
ties and of their registration, transfer and exchange (the "SECURITY
REGISTER"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the
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Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such. The Company may remove any Agent upon written notice to such Agent
and the Trustee; provided that no such removal shall become effective until
(i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company or
any affiliate of the Company may act as Paying Agent or Registrar; provided
that neither the Company nor an affiliate of the Company shall act as Paying
Agent in connection with the defeasance of the Securities or the discharge of
this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying Agent
and Authenticating Agent. If, at any time, the Trustee is not the Registrar,
the Registrar shall make available to the Trustee ten days prior to each
interest payment date and at such other times as the Trustee may reasonably
request the names and addresses of the Holders as they appear in the Security
Register.
SECTION 2.06. Paying Agent to Hold Money in Trust. Not later than
10:00 a.m., New York City time, on each due date of any Principal or interest
on any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent
for the payment of Principal of and interest on such Securities and shall
promptly notify the Trustee in writing of any default by the Company in making
any such payment. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and account for any funds disbursed, and
the Trustee may at any time during the continuance of any payment default,
upon written request to a Paying Agent, require such Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed. Upon
doing so, the Paying Agent shall have no further liability for the money so
paid over to the Trustee. If the Company or any affiliate of the Company acts
as Paying Agent, it will, on or before each due date of any Principal of or
interest on any Securities, segregate and hold in a separate trust fund for
the benefit of the Holders thereof a sum of money sufficient to pay such
Principal or interest so becoming due until such sum of money shall be paid to
such Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee in writing of its action or failure to act as
required by this Section.
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SECTION 2.07. Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered 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 and tenor 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 2.05 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
established pursuant to Section 2.03, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and tenor 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 4.02, 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 established pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor 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 4.02, 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. 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 make available
for delivery, the Securities which the Holder making the exchange is entitled
to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
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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
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
Notwithstanding any other provision of this Section 2.07, 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 Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary
eligible under applicable law with respect to such Registered Global
Securities. If a successor Depositary eligible under applicable law for such
Registered Global Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company will execute, and the Trustee, upon receipt of the Company's order
for the authentication and delivery of definitive Registered Securities of
such series and tenor, will authenticate and make available for delivery
Registered Securities of such series and tenor, in any authorized
denominations, in an aggregate principal amount equal to the principal amount
of such Registered Global Securities, in exchange for such Registered Global
Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained
in global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series and tenor, will authenticate
and make available for delivery, Registered Securities of such series and
tenor in any authorized denominations, in an aggregate principal amount equal
to the principal amount of such Registered Global Securities, in exchange for
such Registered Global Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
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Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with respect
to any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in part for Registered Securities of the same series and tenor 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 make available for delivery, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, 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.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.07 shall be registered in such names and
in such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee in writing. The Trustee or such agent shall deliver such Securities to
or as directed in writing by the Persons in whose names such Securities are
so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee 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
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interest payable on the Unregistered Securities) under then applicable United
States Federal income tax laws. The Trustee and any such agent shall be
entitled to rely conclusively on an Officers' Certificate or an Opinion of
Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.08. Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims
that its Security of any series has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security of such series and tenor and principal amount bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee and any Agent from any loss that any of them may suffer
if a Security is replaced. The Company may charge such Holder for its expenses
and the expenses of the Trustee (including without limitation attorneys' fees
and expenses) in replacing a Security. In case any such mutilated, defaced,
lost, destroyed or wrongfully taken Security has become or is about to become
due and payable, the Company in its discretion may pay such Security instead
of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.08 and those Securities
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
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If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
A Security does not cease to be outstanding because the Company or
one of its affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities shall have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible Officer
of the Trustee has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by the Company, or by
any affiliate of the Company, as security for loans or other obligations,
otherwise than to another such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge
agreement and is free to exercise in its discretion the right to vote such
securities, uncontrolled by the Company or by any such affiliate.
SECTION 2.10. Temporary Securities. Until definitive Securities of
any series are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities of such series. Temporary Securities
of any series shall be substantially in the form of definitive Securities of
such series but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officers executing the
temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of any series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series and tenor upon surrender of such temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a like principal amount of definitive Securities
of such series and tenor and authorized denominations. 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.
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SECTION 2.11. Cancellation. The Company at any time may deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
The Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment or cancellation and shall deliver such canceled Securities to the
Company. The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no representation shall
be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.
SECTION 2.13. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest (as may be specified in the terms thereof, established
pursuant to Section 2.03) to the Persons who are Holders on a subsequent
special record date, which shall mean the 15th day next preceding the date
fixed by the Company for the payment of defaulted interest, whether or not
such day is a Business Day. At least 15 days before such special record date,
the Company shall mail to each Holder and to the Trustee a notice that states
the special record date, the payment date and the amount of defaulted interest
to be paid.
SECTION 2.14. Series May Include Tranches. A series of Securities may
include one or more tranches (each a "TRANCHE") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and
public offering prices, but all the Securities within each such tranche shall
have identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to
Sections 2.02 (other than the fourth paragraph thereof) through 2.042.4,
2.072.7, 2.082.8, 2.102.10, 3.013.1 through 3.053.5, 4.024.2, 6.016.1 through
6.146.14, 8.018.1 through 8.058.5 and 9.029.2, if any series of Securities
includes more than one tranche, all provisions of such sections applicable to
any series of Securities shall be deemed equally applicable to each tranche of
any series of Securities in the same manner as
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though originally designated a series unless otherwise provided with respect
to such series or tranche pursuant to Section 2.03. In particular, and without
limiting the scope of the next preceding sentence, any of the provisions of
such sections which provide for or permit action to be taken with respect to a
series of Securities shall also be deemed to provide for and permit such
action to be taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed satisfied
thereby), even if no comparable action is taken with respect to Securities in
the remaining tranches of that series.
SECTION 2.15. Computation of Interest. Except as otherwise specified
pursuant to Section 2.03 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.03 for Securities of such series.
SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Company shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Registered Securities of such series at their last
addresses as they shall appear upon the Security Register of the Company.
Notice of redemption to the Holders of Unregistered Securities of any series
to be redeemed as a whole or in part, who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act,
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
of any series to be redeemed as a whole or in part shall be published in an
Authorized Newspaper in The City of New York and in an
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Authorized Newspaper in London, in each case, once in each of three successive
calendar weeks, the first publication to be not less than 30 days nor more
than 60 days prior to the date fixed for redemption. Any notice which is
mailed or published in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the
notice. Failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of
any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP and CINS numbers of the Securities to be redeemed, the
date fixed for redemption, the redemption price, the place or places of
payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with coupons attached thereto, of
all coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series and tenor 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.
On or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will 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 2.06) 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 all of the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 10
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
that all such Securities are to be redeemed. If less than all the outstanding
Securities of a series are to be
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redeemed, the Company will deliver to the Trustee at least 15 days prior to
the last date on which notice of redemption may be given to Holders pursuant
to the first paragraph of this Section 3.02 (or such shorter period as shall
be acceptable to the Trustee) an Officers' Certificate stating the aggregate
principal amount of such Securities to be redeemed. In case of a redemption at
the election of the Company prior to the expiration of any restriction on such
redemption, the Company shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such redemption is not prohibited by such
restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the 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. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.03. 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 such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to such
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 7.11
and 8.04, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit 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
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coupons attached thereto, to the Holders of the coupons for such interest upon
surrender thereof, and in the case of Registered Securities, to the Holders of
such Registered Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series 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 such series and tenor
(with any unmatured coupons attached), of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 3.04. 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 Officer of the Company
and delivered to the Trustee at least 40 days prior to the last date on which
notice of redemption may be given as being owned of record and beneficially
by, and not pledged or hypothecated by either (a) the 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 3.05. Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "MANDATORY SINKING FUND PAYMENT," and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "OPTIONAL SINKING FUND
PAYMENT." The date on which a sinking fund payment is to be made is herein
referred to as the "SINKING FUND PAYMENT DATE."
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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 through a mandatory sinking fund
payment) 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 2.11, (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 sinking fund payment. 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, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the 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. 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 2.11 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or delivery of
Securities 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 Officer's Certificate and Securities specified
in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the 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.
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If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Company shall so request with respect
to the Securities of any 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 thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less and the Company makes no such request
then it shall be carried over until a sum in excess of $50,000 (or such lesser
sum) is available. The Trustee shall select, in the manner provided in Section
3.02, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in
an Officers' Certificate delivered to the Trustee at least 60 days prior to
the sinking fund payment date as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Company or (b) an entity
specifically identified in such Officers' Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 3.02 (and with the effect
provided in Section 3.03) for the redemption of Securities of such series in
part 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.
On or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or mail any notice of redemption of
Securities of
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such series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the 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 6 and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided
in Section 6.04 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.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and 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. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) 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 Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid 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 of the Company.
Notwithstanding any provisions of this Indenture and the Securities
of any series to the contrary, if the Company and a Holder of any Registered
Security so agree or if expressly provided pursuant to Section 2.03, payments
of interest on, and any portion of the Principal of, such Holder's Registered
Security (other than
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interest payable at maturity or on any redemption or repayment date or the
final payment of Principal on such Security) shall be made by the Paying
Agent, upon receipt from the Company of immediately available funds by 11:00
a.m., New York City time (or such other time as may be agreed to between the
Company and the Paying Agent), directly to the Holder of such Security (by
Federal funds wire transfer or otherwise) if the Holder has delivered written
instructions to the Trustee 15 days prior to such payment date requesting that
such payment will be so made and designating the bank account to which such
payments shall be so made and in the case of payments of Principal surrenders
the same to the Trustee in exchange for a Security or Securities aggregating
the same principal amount as the unredeemed principal amount of the Securities
surrendered. The Trustee shall be entitled to rely on the last instruction
delivered by the Holder pursuant to this Section 4.01 unless a new instruction
is delivered 15 days prior to a payment date. The Company will indemnify and
hold each of the Trustee and any Paying Agent harmless against any loss,
liability or expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection
with any such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company hereby initially designates the Corporate Trust Office of
the Trustee, located in the Borough of Manhattan, The City of New York, as
such office or agency of the Company. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee set forth in Section 10.02.
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 any 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
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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, if full payment in United States Dollars ("DOLLARS") at each
agency maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
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 maintained in the Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 4.03. Negative Pledge. Neither the Company nor any successor
corporation will, or permit any Subsidiary to, create, assume, incur or
guarantee any indebtedness for borrowed money secured by a pledge, lien or
other encumbrance (except for Permitted Liens, as hereinafter defined) on the
Voting Stock of Donaldson, Lufkin & Jenrette Securities Corporation, a
Delaware corporation and a wholly owned subsidiary of the Company or any
Subsidiary of the Company which shall hereafter succeed by merger or otherwise
to all or substantially all of the business of DLJSC ("DLJSC"), unless the
Company shall cause the Securities to be secured equally and ratably with (or,
at the Company's option, prior to) any indebtedness secured thereby.
"PERMITTED LIENS" means liens for taxes or assessments or governmental charges
or levies not then due and delinquent or the validity of which is being
contested in good faith or which are less than $2,000,000 in amount, liens
created by or resulting from any litigation or legal proceeding which is
currently being contested in good faith by appropriate proceedings or which
involves claims of less than $2,000,000, deposits to secure (or in lieu of)
surety, stay, appeal or customs bonds and such other liens as the Board of
Directors of the Company determines do not materially detract from or
interfere with the present value or control of the Voting Stock subject
thereto or affected thereby.
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SECTION 4.04. Certificate of Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end
of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.04)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.05. Reports by the Company. The Company covenants 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 which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.06. Calculation of Original Issue Discount. The Company
shall file with the Trustee promptly at the end of each calendar year a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on outstanding Securities as of the
end of such year.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as
an entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or
merger with or into a Subsidiary or a sale, conveyance, transfer, lease or
other disposition to a Subsidiary) or permit any Person to merge with or into
the Company unless:
(a) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or that acquired or leased such property and assets of
the Company shall be a corporation organized and validly existing under the
laws of
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the United States of America or any jurisdiction thereof and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee,
all of the obligations of the Company on all of the Securities and under this
Indenture and the Company shall have delivered to the Trustee an Opinion of
Counsel stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have been complied
with and that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company or such successor enforceable against such
entity in accordance with its terms, subject to customary exceptions; and
(b) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that immediately after giving effect to such
transaction, no Default shall have occurred and be continuing and an Opinion
of Counsel as to the matters set forth in Section 5.1(a).
SECTION 5.02. Successor Substituted. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all
or substantially all of the property and assets of the Company in accordance
with Section 5.1 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "EVENT OF DEFAULT" shall occur
with respect to the Securities of any series if:
(a) the Company defaults in the payment of all or any part of the
Principal of any Security of such series when the same becomes due and payable
at maturity, upon acceleration, redemption or mandatory repurchase, including
as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of any interest on any
Security of such series when the same becomes due and payable, and such
default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
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Security of such series or in the Securities of such series and such default
or breach continues for a period of 60 days after written notice thereof has
been given to the Company by the Trustee or to the Company and the Trustee by
the Holders of 25% or more in aggregate principal amount of the Securities of
all series affected thereby;
(d) an involuntary case or other proceeding shall be commenced
against the Company or DLJSC with respect to the Company or DLJSC or their
respective debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or DLJSC or for
any substantial part of the property and assets of the Company or DLJSC, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Company or DLJSC under any bankruptcy, insolvency or other similar
law now or hereafter in effect;
(e) the Company or DLJSC (i) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary case
under any such law, (ii) consents to the appointment of or taking possession
by a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or DLJSC or for all or substantially all of
the property and assets of the Company or DLJSC or (iii) effects any general
assignment for the benefit of creditors;
(f) an event of default, as defined in any one or more indentures or
instruments evidencing or under which the Company has at the date of this
Indenture or shall hereafter have outstanding an aggregate of at least
$25,000,000 aggregate principal amount of indebtedness for borrowed money,
shall happen and be continuing and such indebtedness shall have been
accelerated so that the same shall be or become due and payable prior to the
date on which the same would otherwise have become due and payable, and such
acceleration shall not be rescinded or annulled within ten days after notice
thereof shall have been given to the Company by the Trustee (if such event be
known to it), or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Securities at the time outstanding;
provided that if such event of default under such indentures or instruments
shall be remedied or cured by the Company or waived by the holders of such
indebtedness, then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of the
Securityholders, and provided further, however, that the Trustee shall not be
charged with knowledge of any such default unless written notice thereof shall
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have been given to the Trustee by the Company, by the holder or an agent of
the holder of any such indebtedness, by the trustee then acting under any
indenture or other instrument under which such default shall have occurred, or
by the Holders of not less than 25% in the aggregate principal amount of the
Securities at the time outstanding;
(g) failure by the Company to make any payment at maturity,
including any applicable grace period, in respect of at least $25,000,000
aggregate principal amount of indebtedness for borrowed money and such failure
shall have continued for a period of ten days after notice thereof shall have
been given to the Company by the Trustee (if such event be known to a
responsible Officer of the Trustee), or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the Securities at the
time outstanding; provided that if such failure shall be remedied or cured by
the Company or waived by the holders of such indebtedness, then the Event of
Default under this Indenture by reason thereof shall be deemed likewise to
have been thereupon remedied, cured or waived without further action upon the
part of either the Trustee or any of the Securityholders; or
(h) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
SECTION 6.02. Acceleration. (a) If an Event of Default described in
Section 6.01(a) or (b) with respect to the Securities of any series then
outstanding occurs and is continuing, then, and in each and every such case,
except for any series of Securities the Principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such affected series
then outstanding hereunder (each such series treated as a separate class) by
notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.03) of all Securities of such
affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(b) If an Event of Default described in Section 6.01(c) or (h) with
respect to the Securities of one or more but not all series then outstanding,
occurs and is continuing, then, and in each and every such case, except for
any series of Securities the Principal of which shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of
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all such affected series then outstanding hereunder (treated as a single
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.03) of all Securities of all such
affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in Section 6.01(d) or (e)
occurs and is continuing, then the principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of the Principal as may be
specified in the terms thereof established pursuant to Section 2.03) of all
the Securities then outstanding and interest accrued thereon, if any, shall be
and become immediately due and payable, without any notice or other action by
any Holder or the Trustee, to the full extent permitted by applicable law.
(d) If an Event of Default described in Section 6.01(f) or (g) or in
Section 6.01(c) or (h) with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such case,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount (or, if the Securities of any outstanding series are Original Issue
Discount Securities, the amount thereof accelerable under this Section) of all
Securities of any series then outstanding hereunder except for any series of
Securities the Principal of which shall have already become due and payable
(treated as a single class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal amount
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.03) of all Securities
of any series then outstanding, and the interest accrued thereon, if any, to
be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal amount (or, if the Securities are Original
Issue Discount Securities, such portion of the Principal as may be specified
in the terms thereof established pursuant to Section 2.03) of the Securities
of any series (or of all the Securities, as the case may be) shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of each such
series (or of all the Securities, as the case may be) and the Principal of any
and all Securities of each
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such series (or of all the Securities, as the case may be) which shall have
become due otherwise than by acceleration (with interest upon such Principal
and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest, at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of each such series to the date of
such payment or deposit) and such amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.07, and if any and all Events of
Default under the Indenture, other than the non-payment of the Principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case
the Holders of a majority in aggregate principal amount of all the then
outstanding Securities of all such series that have been accelerated (voting
as a single class), by written notice to the Company and to the Trustee, may
waive all defaults with respect to all such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the Principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
Principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the Principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 6.03. Other Remedies. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of past Defaults. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the
Principal as
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is then accelerable under Section 6.02) of the outstanding Securities of all
series affected (voting as a single class), by notice to the Trustee, may
waive an existing Default or Event of Default with respect to the Securities
of such series and its consequences, except a Default in the payment of
Principal of or interest on any Security as specified in Section 6.01(a) or
(b) or in respect of a covenant or provision of this Indenture which cannot be
modified or amended without the consent of the Holder of each outstanding
Security affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default with respect to the Securities of such series arising
therefrom shall be deemed to have been cured, 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 thereto.
SECTION 6.05. Control by Majority. Subject to Sections 7.01 and
7.02(e), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further,
that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities pursuant
to this Section 6.05.
SECTION 6.06. Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice
of a continuing Event of Default with respect to the Securities of such
series;
(b) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
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(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such affected
series have not given the Trustee a direction that is inconsistent with such
written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holder to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security
to receive payment of Principal of or interest, if any, on such Holder's
Security on or after the respective due dates expressed on such Security, or
to bring 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 6.08. Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount (or such portion thereof as specified in the
terms established pursuant to Section 2.3 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on,
together with interest on overdue Principal of, and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest on, the Securities of such series, in each case at the rate or Yield
to Maturity (in the case of Original Issue Discount Securities) specified in
such Securities, and such further amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator,
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sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it under
Section 7.07. Nothing herein contained shall be deemed to empower the Trustee
to authorize or consent to, or accept or adopt on behalf of any Holder, any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Application of Proceeds. Any moneys collected by the
Trustee 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 the
Trustee and, in case of the distribution of such moneys on account of
Principal or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee
under Section 7.07 applicable to the Securities of such series
in respect of which moneys have been collected;
SECOND: In case the Principal of the Securities of such
series in respect of which moneys have been collected shall not
have become and be then due and payable, to the payment of
interest on the Securities of such series in default in the
order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities of such
series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities of
such series for Principal and interest, with interest upon the
overdue Principal, and (to the extent that such interest has
been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities)
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specified in the Securities of such series; and in case such
moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the
payment of such Principal and interest or Yield to Maturity,
without preference or priority of Principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over
Principal, or of any installment of interest over any other
installment of interest, or of any Security of such series over
any other Security of such series, ratably to the aggregate of
such Principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 6.11. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored to their former
positions hereunder and thereafter all rights and remedies of the Company,
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 6.12. Undertaking for Costs. 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 or omitted by it as Trustee, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant (other than the
Trustee) in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not
apply to a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the outstanding Securities of such
series.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders 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
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otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article 6 or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7.
The Trustee, prior to the occurrence of an Event of Default of which
a Responsible Officer of the Trustee has actual knowledge and after the
curing of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this
indenture against the Trustee. If an Event of Default to the actual knowledge
of a Responsible Officer of the Trustee has occurred (which has not been
cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Agreement or any Supplement and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
SECTION 7.02. Certain Rights of Trustee. Subject to Trust Indenture
Act Sections 315(a) through (d):
(a) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any Officers' Certificate, Opinion of
Counsel (or both), resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper person or persons.
The Trustee need not investigate any fact or matter stated in the document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(b) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall conform to
Section 10.4. The Trustee shall not be liable for any action it takes or omits
to
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take in good faith in reliance on such certificate or opinion. Subject to
Sections 7.01 and 7.02, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted to be taken by it under the provisions of this Indenture upon the
faith thereof;
(c) the Trustee may act through its attorneys, agents, custodian
and nominee not regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent, attorney, custodian and nominee
appointed with due care;
(d) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and any
Board Resolution may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Company;
(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, order or
direction of any of the Holders, unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities that might be incurred by it in compliance with such request,
order or direction;
(f) the Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its rights
or powers or for any action it takes or omits to take in accordance with the
direction of the Holders in accordance with Section 6.05 relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture;
(g) 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 to be taken by it hereunder in good faith and in reliance thereon; and
(h) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate,
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Officers' Certificate, Opinion of Counsel, Board Resolution, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or document
unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then outstanding; provided that, if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require indemnity satisfactory
to it against such expenses or liabilities as a condition to proceeding.
(i) If the Trustee is acting as Paying Agent or Transfer Agent
and Registrar herein the rights and protections afforded the Trustee under
this Article shall also be afforded to and Paying Agent or Transfer Agent
and Registrar.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4)
and (6), the following terms shall mean:
(a) "CASH TRANSACTION" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks
or bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 7.04. Trustee's Disclaimer. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall
be taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities.
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SECTION 7.05. Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the corporate trust
department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if
any Unregistered Securities of such series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in an
Authorized Newspaper in London and (ii) to all Holders of Securities of such
series in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, unless such Default shall have been cured or waived before the
mailing or publication of such notice; provided, however, that, except in the
case of a Default in the payment of the Principal of or interest on any
Security, the Trustee shall be fully protected in withholding such notice if
the Trustee in good faith determines that the withholding of such notice is in
the interests of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
each September 15, beginning with September 15, 1998, the Trustee shall mail
to each Holder as and to the extent provided in Trust Indenture Act Section
313(c) a brief report dated as of such September 15, if required by Trust
Indenture Act Section 313(a).
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
the Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee shall not be limited by
any law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses
shall include the reasonable compensation and expenses of the Trustee's
agents, counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee and its Officers, directors,
employees and Agents for, and hold it and them harmless against, any and all
loss, damage, claim or liability or expense (including legal fees and expenses)
including taxes (other than taxes based on the income of the Trustee) incurred
by it or them without negligence or bad faith on its part arising out of or
in connection with the acceptance or administration of this Indenture and the
Securities or the issuance of the Securities or a series thereof or the trusts
hereunder and the performance of its duties under this Indenture and the
Securities, including the costs and expenses of defending itself against or
investigating any claim or liability and of complying with any process served
upon it or any of its officers in connection with the exercise or performance of
any of its powers or duties under this Indenture and the Securities.
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To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination
of this Indenture under bankruptcy law or the earlier registration or removal
of the Trustee. Such additional indebtedness shall be a senior claim to that
of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders of
particular Securities or coupons, and the Securities are hereby subordinated
to such senior claim. If the Trustee renders services and incurs expenses
following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof,
the parties hereto and the Holders by their acceptance of the Securities
hereby agree that such expenses are intended to constitute expenses
of administration under any bankruptcy law.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities
of any series shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company in writing. The Holders of
a majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of
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such Securities to replace the successor Trustee appointed by the Company. If
the successor Trustee with respect to the Securities of any series does not
deliver its written acceptance required by the next succeeding paragraph of
this Section 7.08 within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee
with respect thereto.
A successor Trustee with respect to the Securities of any series
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Immediately after the delivery of such written acceptance,
subject to the lien provided for in Section 7.07 and subject to the payment
of any and all amounts then due and owing to the retiring Trustee, (i) the
retiring Trustee shall transfer all property held by it as Trustee in respect
of the Securities of such series to the successor Trustee, (ii) the resignation
or removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
the preceding paragraph.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee in respect of the Securities of such series to all
Holders of Securities of such series. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national
banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor
Trustee with the same effect as if the successor Trustee had been named as the
Trustee herein; provided that such successor Trustee shall be otherwise
qualified and eligible under this Article 7.
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SECTION 7.10. Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except
for money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(a) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of such
series that have been replaced or Securities of such series that are paid
pursuant to Section 4.01 or Securities of such series for whose payment money
or securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
(b) (i) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii) the
Company irrevocably deposits in trust with the Trustee, as trust funds solely
for the benefit of the Holders of such Securities for that purpose, money or
U.S. Government Obligations or a combination thereof sufficient (unless such
funds consist solely of money, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment, to pay
the Principal of and interest on the Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, and (iii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the satisfaction and
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discharge of this Indenture with respect to the Securities of such series have
been complied with.
With respect to the foregoing clause (a), only the Company's
obligations under Section 7.07 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (b), only the Company's
obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 in
respect of the Securities of such series shall survive until such Securities
of such series are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07 and 8.05 in respect of the Securities of such
series shall survive. After any such irrevocable deposit, the Trustee upon
written request shall acknowledge in writing the discharge of the Company's
obligations under the Securities of such series and this Indenture with
respect to the Securities of such series except for those surviving
obligations specified above.
SECTION 8.02. Defeasance. Except as provided below, the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have
been satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest on the Securities of such
series, money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to
pay and discharge the Principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the case may
be;
(b) such deposit will 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;
(c) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
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(d) the Company shall have delivered to the Trustee (i) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service to
the effect that the Holders of the Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
the Company's exercise of its option under this Section 8.02 and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit and defeasance had
not occurred or (y) an Opinion of Counsel to the same effect as the ruling
described in clause (x) above and (ii) an Opinion of Counsel to the effect
that the Holders of the Securities of such series have a valid security
interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02 of the Securities of such series have been
complied with.
The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07,
7.08 and 8.05 with respect to the Securities of such series shall survive
until such Securities are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.03. Covenant Defeasance. The Company may omit to comply
with any term, provision or condition set forth in Section 4.03 (or any other
specific covenant relating to such series provided for in a Board Resolution
or supplemental indenture pursuant to Section 2.03 which may by its terms be
defeased pursuant to this Section 8.03), and such omission shall be deemed not
to be an Event of Default under Section 6.01(c) or (h), with respect to the
outstanding Securities of a series if:
(a) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest, if any, on the
Securities of such series, money or U.S. Government Obligations or a
combination thereof in an amount sufficient (unless such funds consist solely
of money, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment of all
federal, state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, to pay and discharge the Principal of and
interest on the outstanding Securities of such series to maturity or earlier
redemption (irrevocably provided for under arrangements satisfactory to the
Trustee), as the case may be;
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(b) such deposit will 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;
(c) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(d) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (i) the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens under the
UCC and (ii) such Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and covenant defeasance and
will be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit and
defeasance had not occurred; and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant defeasance
contemplated by this Section 8.03 of the Securities of such series have been
complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.05,
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the
payment of Principal of and interest on the Securities of such series; but
such money need not be segregated from other funds except to the extent
required by law. The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.01, 8.02 or 8.03 or the principal
or interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding
Securities.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon
shall be relieved from all liability with respect to such money. The Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them and required to make payments hereunder under this Indenture that
remains unclaimed for two years; provided that the Trustee or such Paying
Agent before being required to make any payment may cause to be published at
the
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expense of the Company once in an Authorized Newspaper in The City of New York
and once in an Authorized Newspaper in London or mail to each Holder entitled
to such money at such Holder's address (as set forth in the Security Register)
notice that such money remains unclaimed and that after a date specified
therein (which shall be at least 30 days from the date of such publication or
mailing) any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company, Holders entitled to such money must
look to the Company for payment as general creditors unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and the
Trustee may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not materially and
adversely affect the interests of the Holders;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(d) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a successor
Trustee;
(e) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted by
Section 2.03;
(f) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose; or
(g) to make any change that does not materially and adversely affect
the rights of any Holder.
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SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and
6.07, without prior notice to any Holders, the Company and the Trustee may
amend this Indenture and the Securities of any series with the written consent
of the Holders of a majority in principal amount of the outstanding Securities
of all series affected by such amendment (all such series voting as one
class), and the Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one
class) by written notice to the Trustee may waive future compliance by the
Company with any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.04, may not:
(a) extend the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security, or
reduce the Principal thereof or the rate of interest thereon (including any
amount in respect of original issue discount), or any premium payable with
respect thereto, or adversely affect the rights of such Holder under any
mandatory redemption or repurchase provision or any right of redemption or
repurchase at the option of such Holder, or reduce the amount of the Principal
of an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 6.02 or the amount
thereof provable in bankruptcy, or change any place of payment where, or the
currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the due date therefor;
(b) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required for
any such supplemental indenture, for any waiver of compliance with certain
provisions of this Indenture or certain Defaults and their consequences
provided for in this Indenture;
(c) waive a Default in the payment of Principal of or interest on any
Security of such Holder; or
(d) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder
of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the
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benefit of one or more particular series of Securities, or which modifies the
rights of Holders of Securities of such series 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.
It shall not be necessary for the consent of any Holder under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or
waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the Security of the consenting
Holder, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to its Security
or portion of its Security. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective with respect to any Securities affected thereby on
receipt by the Trustee of written consents from the requisite Holders of
outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of
any series affected entitled to consent to any amendment, supplement or
waiver. If a record date is fixed, then, notwithstanding the immediately
preceding paragraph, those Persons who were such Holders at such record date
(or their duly designated proxies) and only those Persons shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be such Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(a) through (d) of Section 9.02. In case of an amendment or waiver of the type
described in clauses
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(a) through (d) of Section 9.02, the amendment or waiver shall bind each such
Holder who has consented to it and every subsequent Holder of a Security that
evidences the same indebtedness as the Security of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may
require the Holder thereof to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security about the changed terms and return it
to the Holder and the Trustee may place an appropriate notation on any
Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to customary exceptions.
Subject to the preceding sentence, the Trustee shall sign such amendment,
supplement or waiver if the same does not adversely affect the rights of the
Trustee. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver that affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
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SECTION 10.02. Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received or
(b) if mailed by first class mail, 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission
is confirmed, in each case addressed as follows:
if to the Company:
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Telecopy: (212) 504-4991
Attention: General Counsel
if to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attention: Global Trust Services
[ ]
Facsimile No.: (212) 946-8161
Attention: Corporate Trust Trustee Administration
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York and at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee and to
Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee and
each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. Except
as otherwise provided in this Indenture, if a notice or communication is
mailed in the manner provided in this Section 10.02, it is duly given, whether
or not the addressee receives it.
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Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a statement that each person signing 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 statement or opinion contained in such
certificate or opinion is based;
(c) a statement that, in the opinion of each 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 each such
person, such condition or covenant has been complied with; provided, however,
that, with respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
55
<PAGE>
SECTION 10.05. Evidence of Ownership. The Company, the Trustee and
any agent of the Company or the Trustee may deem and 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. The fact of the holding by any Holder
of an Unregistered Security, and the identifying number of such Security and
the date of his holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the Trustee, if
such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person
named in such certificate. Any such certificate may be issued in respect of
one or more Unregistered Securities specified therein. The holding by the
person named in any such certificate of any Unregistered Securities specified
therein shall be presumed to continue for a period of one year from the date
of such certificate unless at the time of any determination of such holding
(a) another certificate bearing a later date issued in respect of the same
Securities shall be produced or (b) the Security specified in such certificate
shall be produced by some other Person, or (c) the Security specified in such
certificate shall have ceased to be outstanding. Subject to Article 7, the
fact and date of the execution of any such instrument and the amount and
numbers of Securities held by the Person so executing such instrument may also
be proven in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on
such Registered 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.
SECTION 10.06. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
56
<PAGE>
SECTION 10.07. Payment Date Other than a Business Day. If any date
for payment of Principal or interest on any Security shall not be a Business
Day at any place of payment, then payment of Principal of or interest on such
Security, as the case may be, need not be made on such date, but may be made
on the next succeeding Business Day at any place of payment with the same
force and effect as if made on such date and no interest shall accrue in
respect of such payment for the period from and after such date.
SECTION 10.08. Governing Law. The laws of the State of New York
(without regard to conflicts of laws principles thereof) shall govern this
Indenture and the Securities.
SECTION 10.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture
or agreement may not be used to interpret this Indenture.
SECTION 10.10. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.11. Duplicate Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 10.12. Separability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 10.13. Table of Contents, Headings, Etc. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
SECTION 10.14. 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 or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, 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
57
<PAGE>
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 10.15. Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "REQUIRED CURRENCY") into a currency in which a judgment will be rendered
(the "JUDGMENT CURRENCY"), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on
the day on which final unappealable judgment is entered, unless such day is
not a Business Day in The City of New York, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day in The City of New York preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.
58
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
DONALDSON, LUFKIN & JENRETTE,
INC., as the Company
By:
--------------------------------
[CORPORATE SEAL]
Attest:
By:
--------------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
59
<PAGE>
STATE OF [_____________] )
) ss.:
COUNTY OF [____________] )
BEFORE ME, the undersigned authority, on this [ ] day of November,
1997, personally appeared Anthony F. Daddino, Executive Vice President and
Chief Financial Officer of Donaldson, Lufkin & Jenrette, Inc., a Delaware
corporation, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he/she executed the same
as the act of such corporation for the purposes and consideration herein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS [ ] DAY OF
NOVEMBER, 1997.
[NOTARIAL SEAL]
Notary Public
60
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of November, 1997,
personally appeared , of The Chase Manhattan Bank, a New York banking
corporation, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he/she executed the same
as the act of such trust for the purposes and consideration herein expressed
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF
NOVEMBER, 1997.
[NOTARIAL SEAL]
Notary Public
61
<PAGE>
EXHIBIT 4.2
[FORM OF SENIOR DEBT SECURITY]
CUSIP:
No. $
[To be included on Registered Global Securities only: Unless and until it is
exchanged in whole or in part for [Notes] [Debentures] in definitive registered
form, this [Note] [Debenture] 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.]
DONALDSON, LUFKIN & JENRETTE, INC.
__% [Note]
[Sinking Fund Debenture]
Due ___
DONALDSON, LUFKIN & JENRETTE, INC., a Delaware corporation (the
"COMPANY", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, at the office or agency of the Company in New
York, New York, the principal sum of _______ Dollars on _______________, in the
coin or currency of the United States, and to pay interest, semi-annually
on ______ and ______ of each year, commencing __________, on said principal
sum at said office or agency, in like coin or currency, at the rate per annum
specified in the title of this [Note] [Debenture], from the _____ or the ______,
as the case may be, next preceding the date of this [Note] [Debenture] to which
interest has been paid or duly provided for, unless the date hereof is a date
to which interest has been paid or duly provided for, in which case from the
date of this [Note] [Debenture], or unless no interest has been paid or duly
provided for on these [Notes] [Debentures], in which case from __________,
until payment of said principal sum has been made or duly provided for;
provided, that payment of interest may be made at the option of the Company by
check mailed to the address of the person entitled thereto as such address
shall appear on the Security register
1
<PAGE>
or by wire transfer as provided in the Indenture. Notwithstanding the
foregoing, if the date hereof is after the __th day of _____ or ______ , as the
case may be, and before the following _____ or ______, this [Note] [Debenture]
shall bear interest from such ______ or ______; provided, that if the Company
shall default in the payment of interest due on such _____ or _____, then this
[Note] [Debenture] shall bear interest from the next preceding _____ or _____,
to which interest has been paid or duly provided for or, if no interest has
been paid or duly provided for on these [Notes] [Debentures], 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 [Note] [Debenture] is registered at the close of
business on the ____ or ______, as the case may be, next preceding such _____
or ______, whether or not such day is a Business Day.
Reference is made to the further provisions of this [Note] [Debenture]
set forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This [Note] [Debenture] shall not be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have been
manually signed by the Trustee under the Indenture referred to on the reverse
hereof.
IN WITNESS WHEREOF, DONALDSON, LUFKIN & JENRETTE, INC. has caused this
instrument to be signed manually or by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed
hereunto or imprinted hereon.
(SEAL) DONALDSON, LUFKIN & JENRETTE,
INC.
By
---------------------------------
Attest:
- ------------------------------------
2
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: CHASE MANHATTAN BANK,
as Trustee
By:
---------------------------------------
Authorized Signatory
3
<PAGE>
REVERSE OF [NOTE] [DEBENTURE]
DONALDSON, LUFKIN & JENRETTE, INC.
__% [Note]
[Sinking Fund Debenture]
Due ____
This [Note] [Sinking Fund Debenture] is one of a duly authorized issue
of debentures, notes, bonds or other evidences of indebtedness of the Company
(hereinafter called the "SECURITIES") of the series hereinafter specified, all
issued or to be issued under and pursuant to an indenture dated as of October
25, 1995 (herein called the "INDENTURE"), duly executed and delivered by the
Company to The Bank of New York, as Trustee (herein called the "TRUSTEE"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any) and may otherwise vary
as in the Indenture provided. This [Note] [Debenture] is one of a series
designated as the ___% [Notes] [Sinking Fund Debentures] Due ___ of the
Company, limited in aggregate principal amount to
$________.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay interest on overdue Principal and, to the
extent lawful, on overdue installments of interest at the rate per annum borne
by this [Note] [Debenture]. If a payment date is not a Business Day as defined
in the Indenture at a place of payment, payment may be made at that place on
the next succeeding day that is a Business Day, and no interest shall accrue
for the intervening period.
In case an Event of Default with respect to the ___% [Notes] [Sinking
Fund Debentures] Due ____, as defined in the Indenture, shall have occurred and
be continuing, the Principal hereof and the interest accrued hereon, if any,
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 which provide that, without prior
notice to any Holders, the Company and the Trustee may amend the Indenture and
the Securities of any series with the written consent of the Holders of a
majority in
4
<PAGE>
principal amount of the outstanding Securities of all series affected by such
amendment (all such series voting as one class), and the Holders of a majority
in principal amount of the outstanding Securities of all series affected
thereby (all such series voting as one class) by written notice to the Trustee
may waive future compliance by the Company with any provision of the Indenture
or the Securities of such series; provided that, without the consent of each
Holder of the Securities of each series affected thereby, an amendment or
waiver, including a waiver of past defaults, may not: (i) extend the stated
maturity of the Principal of, or any sinking fund obligation or any installment
of interest on, such Holder's Security, or reduce the principal amount thereof
or the rate of interest thereon (including any amount in respect of original
issue discount), or any premium payable with respect thereto, or adversely
affect the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of such
Holder, or reduce the amount of the Principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof or the amount thereof provable in bankruptcy, or change any place of
payment where, or the currency in which, any Security of such series or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of outstanding Securities of the
relevant series the consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance with certain provisions of
the Indenture or certain Defaults and their consequences provided for in the
Indenture; (iii) waive a Default in the payment of Principal of or interest on
any Security of such Holder; or (iv) modify any of the provisions of the
Indenture governing supplemental indentures with the consent of Securityholders
except to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable) of the outstanding Securities of all series
affected (voting as a single class), by notice to the Trustee, may waive an
existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of Principal of or
interest on any Security or in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of the Holder
of each outstanding Security affected. Upon any such waiver, such Default shall
cease to exist, and any Event of Default with respect to the Securities of such
series arising therefrom shall be deemed to have been cured, for every purpose
of the Indenture; but no such waiver shall extend to
5
<PAGE>
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
The Indenture provides that a series of Securities may include one or
more tranches (each a "TRANCHE") of Securities, including Securities issued in
a Periodic Offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices, but
all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding any
other provision of the Indenture, subject to certain exceptions, with respect
to sections of the Indenture concerning the execution, authentication and terms
of the Securities, redemption of the Securities, Events of Default of the
Securities, defeasance of the Securities and amendment of the Indenture, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to a board resolution or a supplemental
indenture establishing such series or tranche.
No reference herein to the Indenture and no provision of this [Note]
[Debenture] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal of and any
premium and interest on this [Note] [Debenture] in the manner, at the place, at
the respective times, at the rate and in the coin or currency herein
prescribed.
The [Notes] [Debentures] are issuable initially only in registered
form without coupons in denominations of [$1,000] or any integral multiple
thereof at the office or agency of the Company in the Borough of Manhattan, The
City of New York, and in the manner and subject to the limitations provided in
the Indenture.
[This [Note] [Debenture] will not be redeemable at the option of the
Company prior to maturity.] [This [Note] [Debenture] is redeemable prior to
maturity ...] [This Debenture is entitled to the benefits of a mandatory
sinking fund as follows ...]
Upon due presentment for registration of transfer of this [Note]
[Debenture] at the office or agency of the Company in the Borough of Manhattan,
The City of New York, a new [Note or Notes] [Debenture or Debentures] of
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange therefor, subject to the limitations provided in
the
6
<PAGE>
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the registered Holder hereof as the absolute owner of this
[Note] [Debenture] (whether or not this [Note] [Debenture] shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the Principal hereof and,
subject to the provisions hereof, interest hereon, 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.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or any indenture supplemental thereto or in any
[Note] [Debenture], or because of any indebtedness evidenced thereby, shall be
had against any incorporator as such, or against any past, present or future
stockholder, officer, director or employee, 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 hereof and as
part of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
The laws of the State of New York (without regard to conflicts of laws
principles thereof) shall govern this [Note] [Debenture].
7
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
- ----------------------------------------------------------------------------
the within [Note] [Debenture] and all rights thereunder, hereby
- ----------------------------------------------------------------------------
irrevocably constituting and appointing such person attorney
- ----------------------------------------------------------------------------
to transfer such [Note] [Debenture] on the books of the Issuer, with full
- ----------------------------------------------------------------------------
power of substitution in the premises.
Dated:
----------------------
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within [Note]
[Debenture] in every particular without alteration or
enlargement or any change whatsoever.
Signature guarantee:
---------------------------------
8
<PAGE>
EXHIBIT 4.3
- -------------------------------------------------------------------------------
DONALDSON, LUFKIN & JENRETTE, INC., Company
and
THE CHASE MANHATTAN BANK, Trustee
SUBORDINATED INDENTURE
Dated as of November [ ], 1997
------------------
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..................................................1
SECTION 1.02. Other Definitions............................................7
SECTION 1.03. Incorporation by Reference of Trust Indenture Act............7
SECTION 1.04. Rules of Construction........................................8
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating..............................................8
SECTION 2.02. Execution and Authentication.................................9
SECTION 2.03. Amount Unlimited; Issuable in Series........................10
SECTION 2.04. Denomination and Date of Securities; Payments of Interest...13
SECTION 2.05. Registrar and Paying Agent..................................14
SECTION 2.06. Paying Agent to Hold Money in Trust.........................15
SECTION 2.07. Transfer and Exchange.......................................15
SECTION 2.08. Replacement Securities......................................19
SECTION 2.09. Outstanding Securities......................................19
SECTION 2.10. Temporary Securities........................................20
SECTION 2.11. Cancellation................................................20
SECTION 2.12. CUSIP Numbers...............................................21
SECTION 2.13. Defaulted Interest..........................................21
SECTION 2.14. Series May Include Tranches.................................21
SECTION 2.15. Computation of Interest.....................................22
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of Article....................................22
SECTION 3.02. Notice of Redemption; Partial Redemptions...................22
SECTION 3.03. Payment of Securities Called for Redemption.................24
SECTION 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption..................................25
SECTION 3.05. Mandatory and Optional Sinking Funds........................25
<PAGE>
PAGE
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.......................................28
SECTION 4.02. Maintenance of Office or Agency.............................29
SECTION 4.03. Certificate to Trustee......................................30
SECTION 4.04. Reports by the Company......................................30
SECTION 4.05. Calculation of Original Issue Discount......................30
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.................................31
SECTION 5.02. Successor Substituted.......................................31
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default...........................................32
SECTION 6.02. Acceleration................................................33
SECTION 6.03. Other Remedies..............................................36
SECTION 6.04. Waiver of Past Defaults.....................................36
SECTION 6.05. Control by Majority.........................................36
SECTION 6.06. Limitation on Suits.........................................37
SECTION 6.07. Rights of Holders to Receive Payment........................37
SECTION 6.08. Collection Suit by Trustee..................................37
SECTION 6.09. Trustee May File Proofs of Claim............................38
SECTION 6.10. Application of Proceeds.....................................38
SECTION 6.11. Restoration of Rights and Remedies..........................39
SECTION 6.12. Undertaking for Costs.......................................39
SECTION 6.13. Rights and Remedies Cumulative..............................40
SECTION 6.14. Delay or Omission Not Waiver................................40
ARTICLE 7
TRUSTEE
SECTION 7.01. General.....................................................40
SECTION 7.02. Certain Rights of Trustee...................................41
SECTION 7.03. Individual Rights of Trustee................................42
SECTION 7.04. Trustee's Disclaimer........................................43
SECTION 7.05. Notice of Default...........................................43
ii
<PAGE>
PAGE
SECTION 7.06. Reports by Trustee to Holders...............................43
SECTION 7.07. Compensation and Indemnity..................................44
SECTION 7.08. Replacement of Trustee......................................45
SECTION 7.09. Successor Trustee by Merger, Etc............................46
SECTION 7.10. Eligibility.................................................46
SECTION 7.11. Money Held in Trust.........................................46
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment.......................46
SECTION 8.02. Defeasance..................................................48
SECTION 8.03. Covenant Defeasance.........................................49
SECTION 8.04. Application of Trust Money..................................50
SECTION 8.05. Repayment to Company........................................50
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders..................................51
SECTION 9.02. With Consent of Holders.....................................51
SECTION 9.03. Revocation and Effect of Consent............................53
SECTION 9.04. Notation on or Exchange of Securities.......................53
SECTION 9.05. Trustee to Sign Amendments, Etc.............................54
SECTION 9.06. Conformity with Trust Indenture Act.........................54
ARTICLE 10
SUBORDINATION
SECTION 10.01. Securities Subordinated to Senior Indebtedness.............54
SECTION 10.02. No Payment on Securities in Certain Circumstances..........55
SECTION 10.03. Securities Subordinated to Prior Payment of All
Senior Indebtedness on Dissolution, Liquidation
or Reorganization of Company.............................57
SECTION 10.04. Securityholders to Be Subrogated to Rights of Senior
Indebtedness.............................................58
SECTION 10.05. Obligations of the Company Unconditional...................59
SECTION 10.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice........................................59
SECTION 10.07. Application by Trustee of Assets Deposited with It.........60
iii
<PAGE>
PAGE
SECTION 10.08. Subordination Rights Not Impaired by Acts or
Omissions of the Company, the Trustee or
Holders of Senior Indebtedness...........................60
SECTION 10.09. Securityholders Authorize Trustee to Effectuate
Subordination of Securities..............................61
SECTION 10.10. Right of Trustee to Hold Senior Indebtedness...............62
SECTION 10.11. Article Not to Prevent Events of Default..................62
SECTION 10.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.............................................62
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939................................62
SECTION 11.02. Notices....................................................62
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.........64
SECTION 11.04. Statements Required in Certificate or Opinion..............64
SECTION 11.05. Evidence of Ownership......................................64
SECTION 11.06. Rules by Trustee, Paying Agent or Registrar................65
SECTION 11.07. Payment Date Other than a Business Day.....................65
SECTION 11.08. Governing Law..............................................66
SECTION 11.09. No Adverse Interpretation of Other Agreements..............66
SECTION 11.10. Successors.................................................66
SECTION 11.11. Duplicate Originals........................................66
SECTION 11.12. Separability...............................................66
SECTION 11.13. Table of Contents, Headings, Etc...........................66
SECTION 11.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability.................66
SECTION 11.15. Judgment Currency..........................................67
iv
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SUBORDINATED INDENTURE, dated as of [ ], 1997, between Donaldson,
Lufkin & Jenrette, Inc., a Delaware corporation, as the Company, and The Chase
Manhattan Bank, a New York banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time
of its debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "SECURITIES") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration of the Securities, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of any and all series thereof and of the
coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"AGENT" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"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) and in the case of London, will, if practicable, be the Financial
Times (London Edition)) 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 or
London, as applicable. If it shall be impractical in the opinion of the
Trustee to make any
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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 RESOLUTION" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof, certified by the
secretary or an assistant secretary of the Company to have been duly adopted
and to be in full force and effect on the date of certification, and delivered
to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that is not
a day on which banking institutions are authorized or required by law or
regulation to close, in the city (or in any of the cities, if more than one)
unless otherwise specified, in which amounts are payable, as specified in the
form of such Security.
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or equity,
including, without limitation, all Common Stock and Preferred Stock.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution 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 at such time.
"COMMON STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding
or issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"COMPANY" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 450 West 33rd Street - 15th Floor, New York, New York 10001
Attention: Corporate Trust Trustee Administration.
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"DEFAULT" means any Event of Default as defined in Section 6.01 and
any event that is, or after notice or passage of time or both would be, an
Event of Default.
"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 2.03
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.
"DESIGNATED SENIOR INDEBTEDNESS" means any class of Senior
Indebtedness the aggregate principal amount outstanding of which exceeds [$50
million] and which is specifically designated in the instrument evidencing
such Senior Indebtedness or the agreement under which such Senior Indebtedness
arises as "DESIGNATED SENIOR INDEBTEDNESS."
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of any computation required or permitted
hereunder.
"HOLDER" or "SECURITYHOLDER" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"INDENTURE" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections
2.01 and 2.03.
"NON-U.S. PERSON" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"OFFICER" means, with respect to the Company, the chairman of the
board of directors, the president, the executive vice president, any senior
vice president, the treasurer or any assistant treasurer, or the secretary or
any assistant secretary.
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"OFFICERS' CERTIFICATE" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president, the
executive vice president or any senior vice president and (ii) by the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, complying with Section 11.04 and delivered to the Trustee. Each
such certificate shall comply with Section 314 of the Trust Indenture Act and
include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 11.04.
"OPINION OF COUNSEL" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the
Trustee and complying with Section 11.04. Each such opinion shall comply with
Section 314 of the Trust Indenture Act and include the statements provided in
Section 11.04, if and to the extent required thereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of authentication 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
6.02.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"PRINCIPAL" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the
Security.
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"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 2.02, and bearing the legend prescribed in
Section 2.02 .
"REGISTERED SECURITY" means any Security registered on the Security
Register (as defined in Section 2.05).
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee,
any officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary or
Assistant Treasurer of any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge and familiarity with
the particular subject.
"SECURITIES" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR INDEBTEDNESS" means the principal of and premium, if any, and
interest on (a) all indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, (i) for money borrowed by the
Company, (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Company, (iii) in
respect of letters of credit and acceptances issued or made by banks, or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company, for the payment of
which the Company is directly liable, and (b) all deferrals, renewals,
extensions and refunding of, and amendments, modifications and supplements to,
any such indebtedness. As used in the preceding sentence, the term "PURCHASE
MONEY INDEBTEDNESS" means indebtedness evidenced by a note, debenture, bond or
other instrument (whether or not secured by any lien or other security
interest) issued or assumed as all or a part of the consideration for the
acquisition of property, whether by purchase, merger, consolidation or
otherwise, unless by its terms such indebtedness is subordinated to other
indebtedness of the Company. Notwithstanding anything to the contrary in this
Indenture or the Securities, Senior Indebtedness shall not include, (i) any
indebtedness of the Company which, by its terms or the terms of the instrument
creating or evidencing it, is
5
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subordinate in right of payment to or pari passu with the Securities or (ii)
any indebtedness of the Company to a Subsidiary of the Company.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"TRUSTEE" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the provisions
of Article 7 and thereafter means such successor.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"UNITED STATES BANKRUPTCY CODE" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of
a depository receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"VOTING STOCK" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
6
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"YIELD TO MATURITY" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series
are issuable from time to time, on a Security of such series, calculated at
the time of issuance of such series in the case of clause (i) or at the time
of issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or
on such Security, and calculated in accordance with the constant interest
method or such other accepted financial practice as is specified in the terms
of such Security.
SECTION 1.02. Other Definitions. Each of the following terms is
defined in the section set forth opposite such term:
TERM SECTION
Authenticating Agent 2.2
Cash Transaction 7.3
DLJSC 6.1
Dollars 4.2
Events of Default 6.1
Judgment Currency 11.15
Mandatory sinking fund payment 3.5
Optional sinking fund payment 3.5
Paying Agent 2.5
Payment Blockage Period 10.2(b)
Record Date 2.4
Registrar 2.5
Required Currency 11.15
Security Register 2.5
Self-liquidating paper 7.3
Sinking fund payment date 3.5
Tranche 2.14
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
The following terms used in this Indenture that are defined by the Trust
Indenture Act have the following meanings:
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Holder or a Securityholder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
7
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"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined
herein have the meanings assigned to them therein. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in the
plural include the singular;
(iii) "HEREIN," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section
or other subdivision;
(iv) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not be
deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions,
8
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omissions, substitutions and other variations as are required or permitted by
this Indenture and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law, or with any rules
of any securities exchange or usage, all as may be determined by the officers
executing such Securities as evidenced by their execution of the Securities.
Unless otherwise so established, Unregistered Securities shall have coupons
attached.
SECTION 2.02. Execution and Authentication. The chairman of the board
of directors, the president, the executive vice president or any senior vice
president and the treasurer or any assistant treasurer or the secretary or any
assistant secretary shall execute the Securities (other than coupons) for the
Company by facsimile or manual signature in the name and on behalf of the
Company. The seal of the Company, if any, shall be reproduced on the
Securities. If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "AUTHENTICATING AGENT") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on
the Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
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 together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and make
available for delivery such Securities to or upon the written order of the
Company. In authenticating any Securities of a series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of
such series, and shall be fully protected in relying upon, unless and until
such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the
forms and terms of the Securities of that series were established;
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(2) an Officers' Certificate setting forth the form or forms and
terms of the Securities, stating that the form or forms and terms of
the Securities of such series have been, or will be when established
in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that the form
or forms and terms of the Securities of such series have been, or
will be when established in accordance with such procedures as shall
be referred to therein, established in compliance with this Indenture
and that the supplemental indenture, to the extent applicable, and
Securities have been duly authorized and, if executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and duly paid for by the purchasers thereof on the date
of such opinion, would be entitled to the benefits of the Indenture
and would be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors'
rights generally, general principles of equity, and such other
matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.03 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and
the Trustee shall authenticate and make available for delivery 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 in such form and not yet canceled, (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 its custodian 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 a 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."
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
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The Securities may be issued in one or more series and each such
series shall rank junior in right of payment, to the extent provided herein,
to all Senior Indebtedness. There shall be established in or pursuant to a
Board Resolution or one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series (subject to the last sentence of
this Section 2.03),
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all
other series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this
Indenture and any limitation on the ability of the Company to
increase such aggregate principal amount after the initial issuance
of the Securities of that series (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for,
or in lieu of, or upon redemption of, other Securities of the series
pursuant hereto);
(3) the date or dates on which the Principal of the Securities of
the series is payable (which date or dates may be fixed or
extendible);
(4) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, on which such
interest shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of Holders to
whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;
(5) if other than as provided in Section 4.02, the place or places
where the Principal of and any interest on Securities of the series
shall be payable, any Registered Securities of the series may be
surrendered for exchange, notices, demands to or upon the Company in
respect of the Securities of the series and this Indenture may be
served and notice to Holders may be published;
(6) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods
within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
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(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period or periods
within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the entire principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities of
the series are denominated, the coin or currency in which payment of
the Principal of or interest on the Securities of the series shall be
payable or if the amount of payments of Principal of and/or interest
on the Securities of the series may be determined with reference to
an index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such
amounts shall be determined;
(11) if payment of the Principal of and interest on the Securities of
the series shall be payable in currency or currencies other than the
currency of the United States, the manner in which any such currency
shall be valued against other currencies in which any other
Securities shall be payable;
(12) whether the Securities of the series or any portion thereof 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 herein, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by non-U.S.
persons in respect of any tax, assessment or governmental charge
withheld or
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deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay such additional amounts;
(14) if the Securities of the 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;
(15) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to
the Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all
Securities of the series), which provisions may be in addition to, in
substitution for, or in modification of (or any combination of the
foregoing) the provisions of Article 8;
(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities;
(18) any other events of default or covenants with respect to the
Securities of the series; and
(19) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the terms
of this Indenture, if so provided by or pursuant to such Board Resolution or
in any such indenture supplemental hereto and any forms and terms of
Securities to be issued from time to time may be completed and established
from time to time prior to the issuance thereof by procedures described in
such Board Resolution or supplemental indenture.
SECTION 2.04. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or
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Unregistered Securities in denominations established as contemplated by
Section 2.03 or, if not so established with respect to Securities of any
series, in denominations of $1,000 and any integral multiple thereof. 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, as evidenced by their
execution thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest and shall be payable on the dates, established as contemplated by
Section 2.03.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the payment of
the interest due on such interest payment date for such series, in which case
the provisions of Section 2.13 shall apply. The term "RECORD DATE" as used
with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.03, or, if no such date is so
established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.05. Registrar and Paying Agent. The Company shall maintain
an office or agency where Securities may be presented for registration, regis
tration of transfer or exchange (the "REGISTRAR") and an office or agency
where Securities may be presented for payment (the "PAYING AGENT"), which
shall be in the Borough of Manhattan, The City of New York. The Company shall
cause the Registrar to keep a register of the Registered Securities and of
their registration, transfer and exchange (the "SECURITY REGISTER"). The
Company may have one or more additional Paying Agents or transfer agents with
respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such. The Company may remove any Agent upon written notice to such
Agent and the Trustee; provided that no such removal shall become effective
until (i) the
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acceptance of an appointment by a successor Agent to such Agent as evidenced
by an appropriate agency agreement entered into by the Company and such
successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company or
any affiliate of the Company may act as Paying Agent or Registrar; provided
that neither the Company nor an affiliate of the Company shall act as Paying
Agent in connection with the defeasance of the Securities or the discharge of
this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying Agent
and Authenticating Agent. If, at any time, the Trustee is not the Registrar,
the Registrar shall make available to the Trustee ten days prior to each
interest payment date and at such other times as the Trustee may reasonably
request the names and addresses of the Holders as they appear in the Security
Register.
SECTION 2.06. Paying Agent to Hold Money in Trust. Not later than
10:00 a.m., New York City time, on each due date of any Principal or interest
on any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent
for the payment of Principal of and interest on such Securities and shall
promptly notify the Trustee in writing of any default by the Company in making
any such payment. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and account for any funds disbursed, and
the Trustee may at any time during the continuance of any payment default,
upon written request to a Paying Agent, require such Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed. Upon
doing so, the Paying Agent shall have no further liability for the money so
paid over to the Trustee. If the Company or any affiliate of the Company acts
as Paying Agent, it will, on or before each due date of any Principal of or
interest on any Securities, segregate and hold in a separate trust fund for
the benefit of the Holders thereof a sum of money sufficient to pay such
Principal or interest so becoming due until such sum of money shall be paid to
such Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee in writing of its action or failure to act as
required by this Section.
SECTION 2.07. Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
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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 and tenor 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 2.05 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
established pursuant to Section 2.03, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and tenor 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 4.02, 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 established pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor 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 4.02, 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. 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 make available
for delivery, the Securities which the Holder making the exchange is entitled
to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
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
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
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Notwithstanding any other provision of this Section 2.07, 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 Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary
eligible under applicable law with respect to such Registered Global
Securities. If a successor Depositary eligible under applicable law for such
Registered Global Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company will execute, and the Trustee, upon receipt of the Company's order
for the authentication and delivery of definitive Registered Securities of
such series and tenor, will authenticate and make available for delivery
Registered Securities of such series and tenor, in any authorized
denominations, in an aggregate principal amount equal to the principal amount
of such Registered Global Securities, in exchange for such Registered Global
Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained
in global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series and tenor, will authenticate
and make available for delivery, Registered Securities of such series and
tenor in any authorized denominations, in an aggregate principal amount equal
to the principal amount of such Registered Global Securities, in exchange for
such Registered Global Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
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If established by the Company pursuant to Section 2.03 with respect
to any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in part for Registered Securities of the same series and tenor 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 make available for delivery, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, 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.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.07 shall be registered in such names and
in such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee in writing. The Trustee or such agent shall deliver such Securities to
or as directed in writing by the Persons in whose names such Securities are so
registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee 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. The Trustee and
any such agent shall be entitled to conclusively rely on an Officers'
Certificate or an Opinion of Counsel in determining such result.
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The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.08. Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims
that its Security of any series has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security of such series and tenor and principal amount bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee and any Agent from any loss that any of them may suffer
if a Security is replaced. The Company may charge such Holder for its expenses
and the expenses of the Trustee (including without limitation attorneys' fees
and expenses) in replacing a Security. In case any such mutilated, defaced,
lost, destroyed or wrongfully taken Security has become or is about to become
due and payable, the Company in its discretion may pay such Security instead
of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.08 and those Securities
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be
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redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
A Security does not cease to be outstanding because the Company or
one of its affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities shall have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible Officer
of the Trustee has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by the Company, or by
any affiliate of the Company, as security for loans or other obligations,
otherwise than to another such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge
agreement and is free to exercise in its discretion the right to vote such
securities, uncontrolled by the Company or by any such affiliate.
SECTION 2.10. Temporary Securities. Until definitive Securities of
any series are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities of such series. Temporary Securities
of any series shall be substantially in the form of definitive Securities of
such series but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officers executing the
temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of any series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series and tenor upon surrender of such temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a like principal amount of definitive Securities
of such series and tenor and authorized denominations. 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.
SECTION 2.11. Cancellation. The Company at any time may deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated
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hereunder which the Company has not issued and sold. The Registrar, any
transfer agent and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for transfer, exchange or payment. The Trustee
shall cancel all Securities surrendered for transfer, exchange, payment or
cancellation and shall deliver such canceled Securities to the Company. The
Company may not issue new Securities to replace Securities it has paid in full
or delivered to the Trustee for cancellation.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no representation shall
be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.
SECTION 2.13. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest (as may be specified in the terms thereof, established
pursuant to Section 2.03) to the Persons who are Holders on a subsequent
special record date, which shall mean the 15th day next preceding the date
fixed by the Company for the payment of defaulted interest, whether or not
such day is a Business Day. At least 15 days before such special record date,
the Company shall mail to each Holder and to the Trustee a notice that states
the special record date, the payment date and the amount of defaulted interest
to be paid.
SECTION 2.14. Series May Include Tranches. A series of Securities may
include one or more tranches (each a "TRANCHE") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and
public offering prices, but all the Securities within each such tranche shall
have identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to
Sections 2.02 (other than the fourth paragraph thereof) through 2.04, 2.07,
2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.05 and
9.02, if any series of Securities includes more than one tranche, all
provisions of such sections applicable to any series of Securities shall be
deemed equally applicable to each tranche of any series of Securities in the
same manner as though originally designated a series unless otherwise provided
with respect to such series or tranche pursuant to Section 2.03. In
particular, and without limiting the scope of the next preceding sentence, any
of the provisions of such sections which provide for or permit action to be
taken with respect to a series of Securities shall also be deemed to provide
for and permit
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such action to be taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed satisfied
thereby), even if no comparable action is taken with respect to Securities in
the remaining tranches of that series.
SECTION 2.15. Computation of Interest. Except as otherwise specified
pursuant to Section 2.03 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.03 for Securities of such series.
SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Company shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Registered Securities of such series at their last
addresses as they shall appear upon the Security Register of the Company.
Notice of redemption to the Holders of Unregistered Securities of any series
to be redeemed as a whole or in part, who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act,
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
of any series to be redeemed as a whole or in part shall be published in an
Authorized Newspaper in The City of New York and in an Authorized Newspaper in
London, in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 days nor more than 60 days prior to
the date fixed for redemption. Any notice which is mailed or published in the
manner herein provided shall be conclusively presumed to have
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been duly given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security of
such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP and CINS numbers of the Securities to be redeemed, the
date fixed for redemption, the redemption price, the place or places of
payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with coupons attached thereto, of
all coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series and tenor 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.
On or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will 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 2.06) 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 all of the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 10
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
that all such Securities are to be redeemed. If less than all the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 15 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.02
(or such shorter period as shall be acceptable to the Trustee) an Officers'
Certificate stating the aggregate principal amount of
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such Securities to be redeemed. In case of a redemption at the election of the
Company prior to the expiration of any restriction on such redemption, the
Company shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers' Certificate
stating that such redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the 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. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.03. 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 such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to such
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 7.11
and 8.04, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit 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 the
coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.04 and 2.13 hereof.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series 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 such series and tenor
(with any unmatured coupons attached), of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 3.04. 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 Officer of the Company
and delivered to the Trustee at least 40 days prior to the last date on which
notice of redemption may be given as being owned of record and beneficially
by, and not pledged or hypothecated by either (a) the 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 3.05. Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "MANDATORY SINKING FUND PAYMENT," and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "OPTIONAL SINKING FUND
PAYMENT." The date on which a sinking fund payment is to be made is herein
referred to as the "SINKING FUND PAYMENT DATE."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) 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
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delivered to the Trustee for cancellation pursuant to Section 2.11, (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 sinking fund payment. 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, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the 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. 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 2.11 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or delivery of
Securities 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 Officer's Certificate and Securities specified
in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the 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 $50,000 (or a lesser sum if the Company shall so request with respect
to the Securities of any series), such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the
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sinking fund redemption price thereof together with accrued interest thereon
to the date fixed for redemption. If such amount shall be $50,000 (or such
lesser sum) or less and the Company makes no such request then it shall be
carried over until a sum in excess of $50,000 (or such lesser sum) is
available. The Trustee shall select, in the manner provided in Section 3.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and
shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in
an Officers' Certificate delivered to the Trustee at least 60 days prior to
the sinking fund payment date as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Company or (b) an entity
specifically identified in such Officers' Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 3.02 (and with the effect
provided in Section 3.03) for the redemption of Securities of such series in
part 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.
On or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a Default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Company a sum sufficient for such redemption. Except as aforesaid, any moneys
in the sinking fund for such series
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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 6 and held for the payment of all such Securities. In case such Event
of Default shall have been waived as provided in Section 6.04 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.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and 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. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) 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 Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid 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 of the Company.
Notwithstanding any provisions of this Indenture and the Securities
of any series to the contrary, if the Company and a Holder of any Registered
Security so agree or if expressly provided pursuant to Section 2.03, payments
of interest on, and any portion of the Principal of, such Holder's Registered
Security (other than interest payable at maturity or on any redemption or
repayment date or the final payment of Principal on such Security) shall be
made by the Paying Agent, upon receipt from the Company of immediately
available funds by 11:00 a.m., New York City time (or such other time as may
be agreed to between the Company and the Paying Agent), directly to the Holder
of such Security (by Federal funds wire transfer or otherwise) if the Holder
has delivered written instructions to the
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Trustee 15 days prior to such payment date requesting that such payment will
be so made and designating the bank account to which such payments shall be so
made and in the case of payments of Principal surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same
principal amount as the unredeemed principal amount of the Securities
surrendered. The Trustee shall be entitled to rely on the last instruction
delivered by the Holder pursuant to this Section 4.01 unless a new instruction
is delivered 15 days prior to a payment date. The Company will indemnify and
hold each of the Trustee and any Paying Agent harmless against any loss,
liability or expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection
with any such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company hereby initially designates the Corporate Trust Office of
the Trustee, located in the Borough of Manhattan, The City of New York, as
such office or agency of the Company. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee set forth in Section 11.02.
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 any 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, if full payment in United States Dollars ("DOLLARS") at each
agency
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maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
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 maintained in the Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 4.03. Certificate to Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end
of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 11.04)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.04. Reports by the Company. The Company covenants 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 which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.05. Calculation of Original Issue Discount. The Company
shall file with the Trustee promptly at the end of each calendar year a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on outstanding Securities as of the
end of such year.
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ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as
an entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or
merger with or into a Subsidiary or a sale, conveyance, transfer, lease or
other disposition to a Subsidiary) or permit any Person to merge with or into
the Company unless:
(i) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or
into which the Company is merged or that acquired or leased such
property and assets of the Company shall be a corporation organized
and validly existing under the laws of the United States of America
or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of
the obligations of the Company on all of the Securities and under
this Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision
and that all conditions precedent provided for herein relating to
such transaction have been complied with and that such supplemental
indenture constitutes the legal, valid and binding obligation of the
Company or such successor enforceable against such entity in
accordance with its terms, subject to customary exceptions; and
(ii) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that immediately after giving effect to
such transaction, no Default shall have occurred and be continuing
and an Opinion of Counsel as to the matters set forth in Section
5.01(i).
SECTION 5.02. Successor Substituted. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all
or substantially all of the property and assets of the Company in accordance
with Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein.
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ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "EVENT OF DEFAULT" shall occur
with respect to the Securities of any series if:
(a) the Company defaults in the payment of all or any part of the
Principal of any Security of such series when the same becomes due and payable
at maturity, upon acceleration, redemption or mandatory repurchase, including
as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of any interest on any
Security of such series when the same becomes due and payable, and such
default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such default
or breach continues for a period of 60 days after written notice thereof has
been given to the Company by the Trustee or to the Company and the Trustee by
the Holders of 25% or more in aggregate principal amount of the Securities of
all series affected thereby;
(d) an involuntary case or other proceeding shall be commenced
against the Company or Donaldson, Lufkin & Jenrette Securities Corporation
("DLJSC") with respect to the Company or DLJSC or their respective debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of the Company or DLJSC or for any substantial part of the
property and assets of the Company or DLJSC, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or DLJSC
under any bankruptcy, insolvency or other similar law now or hereafter in
effect;
(e) the Company or DLJSC (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary case
under any such law, (B) consents to the appointment of or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or DLJSC or for all or substantially all of the
property and assets of the Company or DLJSC or (C) effects any general
assignment for the benefit of creditors;
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(f) an event of default, as defined in any one or more indentures or
instruments evidencing or under which the Company has at the date of this
Indenture or shall hereafter have outstanding an aggregate of at least
$25,000,000 aggregate principal amount of indebtedness for borrowed money,
shall happen and be continuing and such indebtedness shall have been
accelerated so that the same shall be or become due and payable prior to the
date on which the same would otherwise have become due and payable, and such
acceleration shall not be rescinded or annulled within ten days after notice
thereof shall have been given to the Company by the Trustee (if such event be
known to it), or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Securities at the time outstanding;
provided that if such event of default under such indentures or instruments
shall be remedied or cured by the Company or waived by the holders of such
indebtedness, then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of the
Securityholders, and provided further, however, that the Trustee shall not be
charged with knowledge of any such default unless written notice thereof shall
have been given to the Trustee by the Company, by the holder or an agent of
the holder of any such indebtedness, by the trustee then acting under any
indenture or other instrument under which such default shall have occurred, or
by the Holders of not less than 25% in the aggregate principal amount of the
Securities at the time outstanding;
(g) failure by the Company to make any payment at maturity, including
any applicable grace period, in respect of at least $25,000,000 aggregate
principal amount of indebtedness for borrowed money and such failure shall
have continued for a period of ten days after notice thereof shall have been
given to the Company by the Trustee (if such event be known to a responsible
Officer of the Trustee), or to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount of the Securities at the time
outstanding; provided that if such failure shall be remedied or cured by the
Company or waived by the holders of such indebtedness, then the Event of
Default under this Indenture by reason thereof shall be deemed likewise to
have been thereupon remedied, cured or waived without further action upon the
part of either the Trustee or any of the Securityholders; or
(h) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
SECTION 6.02. Acceleration. (a) If an Event of Default described in
clauses (a) or (b) of Section 6.01 with respect to the Securities of any
series then outstanding occurs and is continuing, then, and in each and every
such case, except for any series of Securities the Principal of which shall
have already
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become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such affected series
then outstanding hereunder (each such series treated as a separate class) by
notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.03) of all Securities of such
affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(b) If an Event of Default described in clauses (c) or (h) of
Section 6.01 with respect to the Securities of one or more but not all series
then outstanding, occurs and is continuing, then, and in each and every such
case, except for any series of Securities the Principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount (or, if the Securities of any such
series are Original Issue Discount Securities, the amount thereof accelerable
under this Section) of the Securities of all such affected series then
outstanding hereunder (treated as a single class) by notice in writing to the
Company (and to the Trustee if given by Securityholders), may declare the
entire principal amount (or, if the Securities of any such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series established pursuant to Section 2.03) of
all Securities of all such affected series, and the interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable.
(c) If an Event of Default described in clauses (d) or (e) of
Section 6.01 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
Principal as may be specified in the terms thereof established pursuant to
Section 2.03) of all the Securities then outstanding and interest accrued
thereon, if any, shall be and become immediately due and payable, without any
notice or other action by any Holder or the Trustee, to the full extent
permitted by applicable law.
(d) If an Event of Default described in clauses (f) or (g) of
Section 6.01 or in clauses (c) or (h) of Section 6.01 with respect to the
Securities of all series then outstanding, occurs and is continuing, then, and
in each and every such case, either the Trustee or the Holders of not less
than 25% in aggregate principal amount (or, if the Securities of any
outstanding series are Original Issue Discount Securities, the amount thereof
accelerable under this Section) of all Securities of any series then
outstanding hereunder except for any series of Securities the Principal of
which shall have already become due and payable (treated as a single
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class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.03) of all Securities of any series
then outstanding, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal amount (or, if the Securities are Original
Issue Discount Securities, such portion of the Principal as may be specified
in the terms thereof established pursuant to Section 2.03) of the Securities
of any series (or of all the Securities, as the case may be) shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of each such
series (or of all the Securities, as the case may be) and the Principal of any
and all Securities of each such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration (with
interest upon such Principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of each such
series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.07, and if
any and all Events of Default under the Indenture, other than the non-payment
of the Principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein, then
and in every such case the Holders of a majority in aggregate principal amount
of all the then outstanding Securities of all such series that have been
accelerated (voting as a single class), by written notice to the Company and
to the Trustee, may waive all defaults with respect to all such series (or
with respect to all the Securities, as the case may be) and rescind and annul
such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
Principal thereof as shall be due and
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payable as a result of such acceleration, and payment of such portion of the
Principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 6.03. Other Remedies. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the
payment of Principal of or interest on any Security as specified in clauses
(a) or (b) of Section 6.01 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, 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 thereto.
SECTION 6.05. Control by Majority. Subject to Sections 7.01 and
7.02(v), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further,
that the Trustee may take any other action it deems proper that is
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not inconsistent with any directions received from Holders of Securities
pursuant to this Section 6.05.
SECTION 6.06. Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice
of a continuing Event of Default with respect to the Securities of
such series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities
or expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security
to receive payment of Principal of or interest, if any, on such Holder's
Security on or after the respective due dates expressed on such Security, or
to bring 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 6.08. Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the
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Company for the whole amount (or such portion thereof as specified in the
terms established pursuant to Section 2.03 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on,
together with interest on overdue Principal of, and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest on, the Securities of such series, in each case at the rate or Yield
to Maturity (in the case of Original Issue Discount Securities) specified in
such Securities, and such further amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it under Section 7.07. Nothing herein contained shall be deemed to empower
the Trustee to authorize or consent to, or accept or adopt on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Application of Proceeds. Any moneys collected by the
Trustee 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 the
Trustee and, in case of the distribution of such moneys on account of
Principal or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under Section
7.07 applicable to the Securities of such series in respect of which moneys
have been collected;
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SECOND: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series
in default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made ratably to
the persons entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and unpaid
upon all the Securities of such series for Principal and interest, with
interest upon the overdue Principal, and (to the extent that such interest has
been collected by the Trustee) upon overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to the
payment of such Principal and interest or Yield to Maturity, without
preference or priority of Principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over Principal, or of any installment of
interest over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate of
such Principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other person lawfully entitled thereto.
SECTION 6.11. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored to their former
positions hereunder and thereafter all rights and remedies of the Company,
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 6.12. Undertaking for Costs. 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 or omitted by it as Trustee, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may
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assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.12 does not apply to a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the outstanding Securities of such series or to the Trustee.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders 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.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article 6 or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7. The Trustee,
prior to the occurrence of an Event of Default of which a Responsible Officer
of the Trustee has actual knowledge and after the curing of all Events of
Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee. If an Event of Default to the actual knowledge of a Responsible
Officer of the Trustee has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement or any Supplement and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
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SECTION 7.02. Certain Rights of Trustee. Subject to Trust Indenture
Act Sections 315(a) through (d):
(i) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any Officers' Certificate,
Opinion of Counsel (or both), resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper person or persons. The Trustee need
not investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall
conform to Section 11.04. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion. Subject to Sections 7.01 and 7.02, whenever
in the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to
be taken by it under the provisions of this Indenture upon the faith
thereof;
(iii) the Trustee may act through its attorneys, Agents, custodian
and nominee not regularly in its employ and shall not be responsible
for the misconduct or negligence of any Agent, attorney, custodian
and nominee appointed with due care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders, unless such Holders shall have
offered to
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the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities that might be incurred by it in
compliance with such request, order or direction;
(vi) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance
with Section 6.05 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture;
(vii) 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 to be taken by it hereunder in good faith and in
reliance thereon; and
(viii) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, Officers' Certificate,
Opinion of Counsel, Board Resolution, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series affected then outstanding; provided that, if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require indemnity satisfactory to it
against such expenses or liabilities as a condition to proceeding.
(ix) If the Trustee is acting as Paying Agent or Transfer Agent and
Registrar herein the rights and protections afforded the Trustee
under this Article 7 shall also be afforded to such Paying Agent or
Transfer Agent and Registrar.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4)
and (6), the following terms shall mean:
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(a) "CASH TRANSACTION" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks
or bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 7.04. Trustee's Disclaimer. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall
be taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities or for
monies paid over to the Company pursuant to the Indenture.
SECTION 7.05. Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the corporate trust
department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if
any Unregistered Securities of such series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in an
Authorized Newspaper in London and (ii) to all Holders of Securities of such
series in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, unless such Default shall have been cured or waived before the
mailing or publication of such notice; provided, however, that, except in the
case of a Default in the payment of the Principal of or interest on any
Security, the Trustee shall be fully protected in withholding such notice if
the Trustee in good faith determines that the withholding of such notice is in
the interests of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
each September 15, beginning with September 15, 1998, the Trustee shall mail
to each Holder as and to the extent provided in Trust Indenture Act Section
313(c) a brief
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report dated as of such September 15, if required by Trust Indenture Act
Section 313(a).
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
the Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee shall not be limited by
any law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses
shall include the reasonable compensation and expenses of the Trustee's
agents, counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee and its Officers, directors,
employees and Agents for, and hold it and them harmless against, any and all
loss, damage, claim or liability or expense (including legal fees and
expenses) including taxes (other than taxes based on the income of the
Trustee) incurred by it or them without negligence or bad faith on its part
arising out of or in connection with the acceptance or administration of this
Indenture and the Securities or the issuance of the Securities or a series
thereof or the trusts hereunder and the performance of its duties under this
Indenture and the Securities, including the costs and expenses of defending
itself against or investigating any claim or liability and of complying with
any process served upon it or any of its officers in connection with the
exercise or performance of any of its powers or duties under this Indenture
and the Securities.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination
of this Indenture under bankruptcy law or the earlier resignation or removal
of the Trustee. Such additional indebtedness shall be a senior claim to that
of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders of
particular Securities or coupons, and the Securities are hereby subordinated
to such senior claim. If the Trustee renders services and incurs expenses
following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof,
the parties hereto and the Holders by their acceptance of the Securities
hereby agree that such expenses are intended to constitute expenses of
administration under any bankruptcy law.
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SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities
of any series shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company in writing. The Holders of
a majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to the
Securities of any series does not deliver its written acceptance required by
the next succeeding paragraph of this Section 7.08 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Immediately after the delivery of such written acceptance,
subject to the lien provided for in Section 7.07 and subject to the payment of
any and all amounts then due and owing to the retiring Trustee, (i) the
retiring Trustee shall transfer all property held by it as Trustee in respect
of the Securities of such series to the successor Trustee, (ii) the
resignation or removal of the retiring Trustee in respect of the Securities of
such series shall become effective and (iii) the successor Trustee shall have
all the rights, powers and duties of the Trustee in respect of the Securities
of such series under this Indenture. A successor Trustee shall mail notice of
its succession to each Holder of Securities of such series.
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Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
the preceding paragraph.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee in respect of the Securities of such series to all
Holders of Securities of such series. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national
banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor
Trustee with the same effect as if the successor Trustee had been named as the
Trustee herein; provided that such successor Trustee shall be otherwise
qualified and eligible under this Article 7.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except
for money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.01, the Company may terminate its
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obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities
of such series that have been replaced or Securities of such series
that are paid pursuant to Section 4.01 or Securities of such series
for whose payment money or securities have theretofore been held in
trust and thereafter repaid to the Company, as provided in Section
8.05) have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or
a combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment,
to pay the Principal of and interest on the Securities of such series
to maturity or redemption, as the case may be, and to pay all other
sums payable by it hereunder, and (C) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of Counsel, in each
case stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture with
respect to the Securities of such series have been complied with.
With respect to the foregoing clause (i), only the Company's
obligations under Section 7.07 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 in
respect of the Securities of such series shall survive until such Securities
of such series are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07 and 8.05 in respect of the Securities of such
series shall survive. After any such irrevocable deposit, the Trustee upon
written request shall acknowledge in writing the discharge of the Company's
obligations under the Securities of such series and this Indenture with
respect to the Securities of such series except for those surviving
obligations specified above.
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SECTION 8.02. Defeasance. Except as provided below, the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have
been satisfied:
(A) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest on the Securities of such series, money or U.S. Government
Obligations or a combination thereof sufficient (unless such funds
consist solely of money, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable by
the Trustee, to pay and discharge the Principal of and accrued
interest on the outstanding Securities of such series to maturity or
earlier redemption (irrevocably provided for under arrangements
satisfactory to the Trustee), as the case may be;
(B) such deposit will 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;
(C) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(D) the Company shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option under
this Section 8.02 and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred or
(y) an Opinion of Counsel to the same effect as the ruling described
in clause (x) above and (2) an Opinion of Counsel to the effect that
the Holders of the Securities of such series have a valid security
interest in the trust funds subject to no prior liens under the UCC;
and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
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conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02 of the Securities of such series
have been complied with.
The Company's obligations in Sections 2.02 through 2.12 , 4.02, 7.07,
7.08 and 8.05 with respect to the Securities of such series shall survive
until such Securities are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.03. Covenant Defeasance. The Company may omit to comply
with any specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03 which may by its
terms be defeased pursuant to this Section 8.03, and such omission shall be
deemed not to be an Event of Default under clauses (c) or (h) of Section 6.01,
with respect to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount
sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment
of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and interest on the outstanding Securities
of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the
case may be;
(ii) such deposit will 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;
(iii) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Holders of the Securities of such series
have a valid security interest in the trust funds subject to no prior
liens under the UCC and (B) such Holders will not recognize income,
gain or loss for federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to federal income
tax on the same
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amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 8.03 of the Securities of
such series have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.05 ,
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the
payment of Principal of and interest on the Securities of such series; but
such money need not be segregated from other funds except to the extent
required by law. The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.01, 8.02 or 8.03 or the principal
or interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding
Securities.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon
shall be relieved from all liability with respect to such money. The Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them and required to make payments hereunder under this Indenture that
remains unclaimed for two years; provided that the Trustee or such Paying
Agent before being required to make any payment may cause to be published at
the expense of the Company once in an Authorized Newspaper in The City of New
York and once in an Authorized Newspaper in London or mail to each Holder
entitled to such money at such Holder's address (as set forth in the Security
Register) notice that such money remains unclaimed and that after a date
specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining
will be repaid to the Company. After payment to the Company, Holders entitled
to such money must look to the Company for payment as general creditors unless
an applicable law designates another Person, and all liability of the Trustee
and such Paying Agent with respect to such money shall cease.
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ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and the
Trustee may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture
Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted
by Section 2.03;
(6) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose; or
(7) to make any change that does not materially and adversely affect
the rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and
6.07, without prior notice to any Holders, the Company and the Trustee may
amend this Indenture and the Securities of any series with the written consent
of the Holders of a majority in principal amount of the outstanding Securities
of all series affected by such amendment (all such series voting as one
class), and the Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one
class) by written notice to the Trustee may waive future compliance by the
Company with any provision of this Indenture or the Securities of such series.
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Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.04, may not:
(i) extend the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's
Security, or reduce the Principal thereof or the rate of interest
thereon (including any amount in respect of original issue discount),
or any premium payable with respect thereto, or adversely affect the
rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of
such Holder, or reduce the amount of the Principal of an Original
Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 6.02 or the
amount thereof provable in bankruptcy, or change any place of payment
where, or the currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the due date
therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this Indenture;
(iii) waive a Default in the payment of Principal of or interest on
any Security of such Holder; or
(iv) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby.
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 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.
It shall not be necessary for the consent of any Holder under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
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After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or
waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the Security of the consenting
Holder, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to its Security
or portion of its Security. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective with respect to any Securities affected thereby on
receipt by the Trustee of written consents from the requisite Holders of
outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of
any series affected entitled to consent to any amendment, supplement or
waiver. If a record date is fixed, then, notwithstanding the immediately
preceding paragraph, those Persons who were such Holders at such record date
(or their duly designated proxies) and only those Persons shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be such Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of
clauses(i) through (iv) of Section 9.02. In case of an amendment or waiver of
the type described in clauses (i) through (iv) of Section 9.02, the amendment
or waiver shall bind each such Holder who has consented to it and every
subsequent Holder of a Security that evidences the same indebtedness as the
Security of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may
require the Holder thereof to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security about the changed terms and return it
to the Holder and the Trustee may place an appropriate notation on any
Security of such
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series thereafter authenticated. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security of the same series and tenor that
reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to customary exceptions.
Subject to the preceding sentence, the Trustee shall sign such amendment,
supplement or waiver if the same does not adversely affect the rights of the
Trustee. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver that affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
SUBORDINATION
SECTION 10.01. Securities Subordinated to Senior Indebtedness. The
Company, for itself and its successors, and each Holder, by his or her
acceptance of Securities, agrees that the payment of the Principal of,
premium, if any, and interest on the Securities is subordinated, to the extent
and in the manner provided in this Article 10, to the right of payment in full
to all present and future Senior Indebtedness, and that these subordination
provisions are for the benefit of the holders of Senior Indebtedness.
The provisions of this Article 10 are for the benefit of the holders
of the Senior Indebtedness from time to time (and their successors and
assigns) and shall be enforceable directly by them and their respective
Representatives directly against the Company, the Trustee and the Holders (and
their successors and assigns). The provisions of this Article 10 shall be a
continuing agreement and shall be irrevocable and shall remain in full force
and effect until payment in the
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full of the Senior Indebtedness in cash or cash equivalents, and shall
constitute a continuing and irrevocable offer to all Persons who become
holders of, or continue to hold, Senior Indebtedness (whether such Senior
Indebtedness was created or acquired before or after the issuance of the
Securities), each of which holders shall be deemed for the purposes hereof to
have acquired Senior Indebtedness in reliance upon the provisions of this
Article 10. The provision of this Article 10 shall survive the commencement of
any reorganization or other proceedings with respect to the Company or any
other Person and the discharge of any claim in connection with such
reorganization or other proceedings, including, without limitation, the
discharge of any Senior Indebtedness.
The holders of the Senior Indebtedness and their respective
representatives are hereby authorized to demand specific performance of the
provisions of this Article 10 at any time when the Company or any Holder shall
have failed to comply with any provision of this Article 10 applicable to it,
and the Company and each Holder hereby irrevocably waives any defense based on
the adequacy of a remedy at law that might be asserted as a bar to the remedy
of specific performance hereof in any action brought therefor by the holders
of the Senior Indebtedness and their respective representatives.
SECTION 10.02. No Payment on Securities in Certain Circumstances. (a)
No payment shall be made by or on behalf of the Company on account of any
obligation or, to the extent the subordination thereof is permitted by
applicable law, claim in respect of the Securities, including the Principal
of, premium, if any, or interest on the Securities, or to redeem (or make a
deposit in redemption of), defease (other than payments made by the Trustee
pursuant to Article 8 with respect to a defeasance permitted by this
Indenture, including the subordination provisions herein) or acquire any of
the Securities for cash, property or securities, (i) upon the maturity of the
Designated Senior Indebtedness or any other Senior Indebtedness with an
aggregate principal amount in excess of $1 million by lapse of time,
acceleration or otherwise, unless and until all Principal of, premium, if any,
and interest on such Senior Indebtedness and all other obligations in respect
thereof shall first be paid in full in cash or cash equivalents or such
payment is duly provided for, or unless and until any such maturity by
acceleration has been rescinded or waived or (ii) in the event of default in
payment of any Principal of, premium, if any, or interest on or any other
amount payable in respect of the Designated Senior Indebtedness or any other
Senior Indebtedness with an aggregate principal amount in excess of $1 million
when it becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise, unless and until such payment
default has been cured or waived or has otherwise ceased to exist.
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(b) Upon the happening of a default (any event that, after notice or
passage of time would be an event of default) or an event of default (any
event that permits the holders of Senior Indebtedness or their representative
or representatives immediately to accelerate its maturity) with respect to any
Senior Indebtedness, other than a default in payment of the Principal of,
premium, if any, or interest on such Senior Indebtedness, upon written notice
of such default or event of default given to the Company and the Trustee by
the holders of a majority of the principal amount outstanding of such
Designated Senior Indebtedness or their representative or at such time as
there is no Designated Senior Indebtedness by the holders of a majority of the
principal amount outstanding of all Senior Indebtedness or their
representative or representatives, or if such default or event of default
results from the acceleration of the Securities, immediately upon such
acceleration, then, unless and until such default or event of default has been
cured or waived or otherwise has ceased to exist, no payment may be made by or
on behalf of the Company with respect to any obligation or claim in respect of
the Securities, including the Principal of, premium, if any, or interest on
the Securities or to redeem (or make a deposit in redemption of), defease or
acquire any of the Securities for cash, property or securities.
Notwithstanding the foregoing, unless the Senior Indebtedness in respect of
which such default or event of default exists has been declared due and
payable in its entirety within 180 days after the date written notice of such
default or event of default is delivered as set forth above or the date of
such acceleration, as the case may be (the "PAYMENT BLOCKAGE PERIOD"), and
such declaration or acceleration has not been rescinded, the Company shall be
required then to pay all sums not paid to the Holders of the Securities during
the Payment Blockage Period due to the foregoing prohibitions and to resume
all other payments as and when due on the Securities. Any number of such
notices may be given; provided, however, that (i) during any 360 consecutive
days, only one Payment Blockage Period shall commence and (ii) any such
default or event of default that existed upon the commencement of a Payment
Blockage Period may not be the basis for the commencement of any other Payment
Blockage Period, unless such default or event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing provisions of
this Section 10.02, any payment or distribution of assets of the Company from
any source whether in cash, property or securities, shall be received by the
Trustee or the Holders on account of any obligation or claim in respect of the
Securities at a time when such payment or distribution is prohibited by the
foregoing provisions, such payment or distribution shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such Holders, as the case may be, to the holders
of the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the
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trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay or to
provide for the payment in full in cash or cash equivalents of all such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any
acceleration under any Senior Indebtedness or under any agreement pursuant to
which Senior Indebtedness may have been issued.
SECTION 10.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company. Upon
any distribution of assets of the Company upon any dissolution, winding up,
total or partial liquidation or reorganization or readjustment of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors, or any
other marshaling of the assets and liabilities of the Company or otherwise:
(a) the holders of all Senior Indebtedness would first be entitled
to receive payment in full in cash or cash equivalents (or have such payment
duly provided for) of the Principal, premium, if any, and interest payable in
respect thereof before the Holders would be entitled to receive any payment on
account of the Principal of, premium, if any, and interest on the Securities;
(b) any payment or distribution of assets of the Company of any kind
or character, from any source, whether in cash, property or securities to
which the Holders or the Trustee on behalf of the Holders would be entitled,
except for the subordination provisions of this Article 10, would be paid by
the liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of Senior Indebtedness remaining unpaid
or unprovided for or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay or
provide for the payment in full in cash or cash equivalents of all such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness; and
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(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company from any source, whether in cash,
property or securities, shall be received by the Trustee or the Holders on
account of principal of or interest on the Securities before all Senior
Indebtedness is paid in full in cash or cash equivalents (or such payment is
duly provided for), such payment or distribution (subject to the provision of
Section 10.06 and 10.07) shall be held in trust by the Trustee or such Holders
for the benefit of the holders of the Senior Indebtedness, or their
representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full (except as such payment otherwise shall have been provided
for) of all Senior Indebtedness remaining unpaid after giving effect to all
concurrent payments and distributions and all provisions therefor to the
holders of such Senior Indebtedness, but only to the extent that as to any
holder of Senior Indebtedness, as promptly as practicable following notice
from the Trustee to the holders of Senior Indebtedness that such prohibited
payment has been received by the Trustee or Holder(s), such holder (or a
representative therefor) notifies the Trustee in writing of the amounts then
due and owing on the Senior Indebtedness, if any, held by such holder and only
the amounts specified in such notices to the Trustee shall be paid to the
holders of Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
SECTION 10.04. Securityholders to Be Subrogated to Rights of Senior
Indebtedness. Subject to the payment in full in cash or cash equivalents of
all Senior Indebtedness (or provision made for its payment), the Holders of
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until all amounts owing on the
Securities shall be paid in full, in cash or cash equivalents and for the
purpose of such subrogation no such payments or distributions to the holders
of Senior Indebtedness by or on behalf of the Company, or by or on behalf of
the Holders by virtue of this Article 10, which otherwise would have been made
to the Holders shall, as between the Company and the Holders, be deemed to be
payment by the Company to or on account of the Senior Indebtedness, it being
understood that the provisions of this Article 10 are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one
hand, and the holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 10 shall have been
applied, pursuant to the provisions of this Article 10, to the payment of
amounts payable
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under Senior Indebtedness, then the Holders shall be entitled to receive from
the holders of such Senior Indebtedness any payments or distributions received
by such holders of Senior Indebtedness in excess of the amount sufficient to
pay all amounts payable under or in respect of the Senior Indebtedness in full
in cash or cash equivalents.
SECTION 10.05. Obligations of the Company Unconditional. Nothing
contained in this Article 10 or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article 10, of the holders of Senior Indebtedness in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article 10 or elsewhere in
this Indenture or in the Securities, upon any distribution of assets of the
Company referred to in this Article 10, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceeding are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution 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 10.
Except as otherwise provided in this Section 10.05, in the event of
any inconsistency between the provisions of this Article 10, on the one part,
and any other provision of this Indenture or any provision of the Securities,
on the other part, the provisions of this Article 10 shall govern.
SECTION 10.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. 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
to or by the Trustee unless and until a Responsible Officer of the Trustee
shall have
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received, no later than three Business Days prior to such payment, written
notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any representative therefor and, prior to the receipt of
any such written notice, the Trustee shall be entitled in all respects
conclusively to assume that no such fact exists.
SECTION 10.07. Application by Trustee of Assets Deposited with It.
Money or U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Section 8.01 shall be for the sole benefit
of Securityholders and, to the extent (i) the making of such deposit by the
Company shall not have been in contravention of any term or provision of any
agreement creating or evidencing Senior Indebtedness and (ii) allocated for
the payment of Securities, shall not be subject to the subordination
provisions of this Article 10. Otherwise, any deposit of assets by the Company
with the Trustee or any Paying Agent (whether or not in trust) for the payment
of Principal of or interest on any Securities shall be subject to the
provisions of Sections 10.01, 10.02, 10.03 and 10.04; provided, that, if prior
to the second Business Day preceding the date on which by the terms of this
Indenture any such assets may become distributable for any purpose (including
without limitation, the payment of either Principal of or interest on any
Securities) the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 10.06, then
the Trustee or such Paying Agent shall have full power and authority to
receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date.
SECTION 10.08. Subordination Rights Not Impaired by Acts or Omissions
of the Company, the Trustee or Holders of Senior Indebtedness. No act, or
failure to act, of any holder of the Senior Indebtedness or their respective
representatives (including without limitation, any action referred to in this
Section 10.08), the Company, the Trustee, any Holder or any other Person with
the terms, covenants or the provisions of this Article 10 (regardless of any
knowledge thereof which any such holder of the Senior Indebtedness may have or
otherwise be charged with) or any reorganization or similar proceeding with
respect to the Company shall affect the provisions of this Article 10, the
obligations owed by the Company, the Trustee or any Holder to the holders of
the Senior Indebtedness under this Article 10 or the rights of any holder of
Senior Indebtedness under this Article 10.
The Company, the Trustee and each Holder each hereby agrees that the
taking of any of the following actions, with or without notice, by the holders
of the Senior Indebtedness and their respective representatives, will not in
any way affect the provisions of this Article 10: (i) changing the manner,
place or terms of
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payment or extending the time of payment of, or renewing or altering, any
agreement or instrument creating, evidencing or governing any Senior
Indebtedness, or consenting to any amendment or change of any terms of any
such agreement or instrument, each as amended from time to time; (ii) granting
extensions or renewals of any such agreement or instrument and any other
indulgence with respect thereto, or effecting any release, compromise or
settlement with respect thereto; (iii) releasing any Person liable in any
manner for the payment or collection of any Senior Indebtedness; (iv)
substituting, exchanging or releasing or otherwise disposing of any item of
security at any time securing any Senior Indebtedness, whether or not the
collateral, if any, received upon the exercise of such power shall be of a
character or value the same as or different from the character or value of the
item of security released; (v) exercising or refraining from exercising any
rights or remedies against the Company or any other Person; and (vi) taking
any other action, or refraining from taking any action, that, in the absence
of authority granted hereby, could have the effect of impairing, invalidating
or rendering unenforceable, in whole or in part, or otherwise affecting, any
of the provisions of this Article 10.
SECTION 10.09. Securityholders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder of the Securities by his or her
acceptance thereof authorizes and expressly directs the Trustee on his or her
behalf to take such action in accordance with the terms of this Indenture as
may be necessary or appropriate to effectuate the subordination provisions
contained in this Article 10 and to protect the rights of the Holders pursuant
to this Indenture, and appoints the Trustee his or her attorney-in-fact for
such purpose, including, in the event of any dissolution, winding up,
liquidation or any reorganization or similar preceding with respect to the
Company (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or any other marshalling of assets
and liabilities of the Company) tending towards liquidation of the business
and assets of the Company, the immediate filing of a claim for the unpaid
balance of his or her Securities in the form required in said proceedings and
cause said claim to be approved. If the Trustee does not file a proper claim
or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then the
holders of the Senior Indebtedness or their respective representatives are
hereby authorized to have the right to file and are hereby authorized to file
an appropriate claim for and on behalf of the Holders of said Securities.
Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Indebtedness or their respective representatives 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 or the rights of any Holder thereof, or to authorize the Trustee or
the holders of
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Senior Indebtedness or their respective representatives to vote in respect of
the claim of any Securityholder in any such proceeding.
SECTION 10.10. Right of Trustee to Hold Senior Indebtedness. The
Trustee shall be entitled to all of the rights set forth in this Article 10 in
respect of any Senior Indebtedness at any time held by it to the same extent
as any other holder of Senior Indebtedness, and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder.
SECTION 10.11. Article 10 Not to Prevent Events of Default. The
failure to make a payment on account of Principal of or interest on the
Securities by reason of any provision of this Article 10 shall not be
construed as preventing the occurrence of a Default or an Event of Default
under Section 6.01or in any way prevent the Holders from exercising any right
hereunder other than the right to receive payment on the Securities.
SECTION 10.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct, bad faith or negligence) if it shall
in good faith mistakenly pay over or distribute to the Holders of Securities
or the Company or any other person, cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article 10
or otherwise. Nothing in this Section 10.12 shall affect the obligation of any
other such person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their representative.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
SECTION 11.02. Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received or
(b) if mailed by first class mail, 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission
is confirmed, in each case addressed as follows:
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if to the Company:
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Facsimile No.: (212) 892-2608
Attention: General Counsel
if to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attention: Global Trust Services
Facsimile No.: (212) 946-8161
Attention: Corporate Trust Trustee
Administration
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York and at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee and to
Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee and
each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. Except
as otherwise provided in this Indenture, if a notice or communication is
mailed in the manner provided in this Section 11.02, it is duly given, whether
or not the addressee receives it.
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
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condition precedent to the validity of any action taken in reliance upon such
waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in
such certificate or opinion is based;
(iii) a statement that, in the opinion of each 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
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.05. Evidence of Ownership. The Company, the Trustee and
any agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of
such
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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. The fact of the holding by any Holder of an
Unregistered Security, and the identifying number of such Security and the
date of his holding the same, may be proved by the production of such Security
or by a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person
named in such certificate. Any such certificate may be issued in respect of
one or more Unregistered Securities specified therein. The holding by the
person named in any such certificate of any Unregistered Securities specified
therein shall be presumed to continue for a period of one year from the date
of such certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the same
Securities shall be produced or (2) the Security specified in such certificate
shall be produced by some other Person, or (3) the Security specified in such
certificate shall have ceased to be outstanding. Subject to Article 7, the
fact and date of the execution of any such instrument and the amount and
numbers of Securities held by the Person so executing such instrument may also
be proven in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on
such Registered 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.
SECTION 11.06. Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.07. Payment Date Other than a Business Day. If any date
for payment of Principal or interest on any Security shall not be a Business
Day at any place of payment, then payment of Principal of or interest on such
Security, as
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the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect
as if made on such date and no interest shall accrue in respect of such
payment for the period from and after such date.
SECTION 11.08. Governing Law. The laws of the State of New York
(without regard to conflicts of laws principles thereof) shall govern this
Indenture and the Securities.
SECTION 11.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture
or agreement may not be used to interpret this Indenture.
SECTION 11.10. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 11.11. Duplicate Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 11.12. Separability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 11.13. Table of Contents, Headings, Etc. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
SECTION 11.14. 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 or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, 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
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by the holders thereof and as part of the consideration for the issue of the
Securities and the coupons appertaining thereto.
SECTION 11.15. Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "REQUIRED CURRENCY") into a currency in which a judgment will be rendered
(the "JUDGMENT CURRENCY"), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on
the day on which final unappealable judgment is entered, unless such day is
not a Business Day in The City of New York, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day in The City of New York preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.
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<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
DONALDSON, LUFKIN & JENRETTE,
INC., as the Company
By:
--------------------------------
[SEAL] Name:
Title:
Attest:
By:
--------------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Name:
Title:
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<PAGE>
STATE OF ________ )
)
COUNTY OF ________ )
BEFORE ME, the undersigned authority, on this [ ] day of [ ], 1997,
personally appeared Anthony F. Daddino, Executive Vice President and Chief
Financial Officer of Donaldson, Lufkin & Jenrette, Inc., a Delaware
corporation, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he/she executed the same
as the act of such corporation for the purposes and consideration herein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS [ ] DAY OF [ ],
1997.
(SEAL)
-----------------------------------
NOTARY PUBLIC, STATE OF ________
Print Name:_________________________
Commission Expires:_________________
69
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of [ ], 1997,
personally appeared , of The Chase Manhattan Bank, a New York banking
corporation, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he/she executed the same
as the act of such trust for the purposes and consideration herein expressed
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF [ ],
1997.
(SEAL)
-------------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:___________________________
Commission Expires:___________________
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<PAGE>
EXHIBIT 4.4
[FORM OF SUBORDINATED DEBT SECURITY]
CUSIP:
No.$
[To be included on Registered Global Securities only: Unless and until it is
exchanged in whole or in part for [Notes] [Debentures] in definitive registered
form, this [Note] [Debenture] 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.]
DONALDSON, LUFKIN & JENRETTE, INC.
__% [Note]
[Sinking Fund Debenture]
Due ___
DONALDSON, LUFKIN & JENRETTE, INC., a Delaware corporation (the
"COMPANY", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, at the office or agency of the Company in New
York, New York, the principal sum of _______ Dollars on _______________, in the
coin or currency of the United States, and to pay interest, semi-annually
on ______ and ______ of each year, commencing __________, on said principal
sum at said office or agency, in like coin or currency, at the rate per annum
specified in the title of this [Note] [Debenture], from the _____ or the ______,
as the case may be, next preceding the date of this [Note] [Debenture] to which
interest has been paid or duly provided for, unless the date hereof is a date
to which interest has been paid or duly provided for, in which case from the
date of this [Note] [Debenture], or unless no interest has been paid or duly
provided for on these [Notes] [Debentures], in which case from __________,
until payment of said principal sum has been made or duly provided for;
provided, that payment of interest may be made at the option of the Company
by check mailed to the address
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of the person entitled thereto as such address shall appear on the Security
register or by wire transfer as provided in the Indenture. Notwithstanding the
foregoing, if the date hereof is after the __th day of _____ or ______ , as the
case may be, and before the following _____ or ______, this [Note] [Debenture]
shall bear interest from such ______ or ______; provided, that if the Company
shall default in the payment of interest due on such _____ or _____, then this
[Note] [Debenture] shall bear interest from the next preceding _____ or _____,
to which interest has been paid or duly provided for or, if no interest has
been paid or duly provided for on these [Notes] [Debentures], 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 [Note] [Debenture] is registered at the close of
business on the ____ or ______, as the case may be, next preceding such _____
or ______, whether or not such day is a Business Day.
Reference is made to the further provisions of this [Note] [Debenture]
set forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This [Note] [Debenture] shall not be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have been
manually signed by the Trustee under the Indenture referred to on the reverse
hereof.
IN WITNESS WHEREOF, DONALDSON, LUFKIN & JENRETTE,
INC. has caused this instrument to be signed manually or by facsimile by its
duly authorized officers and has caused a facsimile of its corporate seal to
be affixed hereunto or imprinted hereon.
(SEAL) DONALDSON, LUFKIN &
JENRETTE, INC.
By:
-----------------------------------
Attest:
- -------------------------------
2
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: CHASE MANHATTAN BANK,
as Trustee
By:
---------------------------------
Authorized Signatory
3
<PAGE>
REVERSE OF [NOTE] [DEBENTURE]
DONALDSON, LUFKIN & JENRETTE, INC.
__% [Note]
[Sinking Fund Debenture]
Due ____
This [Note] [Sinking Fund Debenture] is one of a duly authorized issue
of debentures, notes, bonds or other evidences of indebtedness of the Company
(hereinafter called the "SECURITIES") of the series hereinafter specified, all
issued or to be issued under and pursuant to an indenture dated as of October
25, 1995 (herein called the "INDENTURE"), duly executed and delivered by the
Company to The Bank of New York, as Trustee (herein called the "TRUSTEE"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any) and may otherwise vary
as in the Indenture provided. This [Note] [Debenture] is one of a series
designated as the ___% [Notes] [Sinking Fund Debentures] Due ___ of the
Company, limited in aggregate principal amount to
$________.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay interest on overdue Principal and, to the
extent lawful, on overdue installments of interest at the rate per annum borne
by this [Note] [Debenture]. If a payment date is not a Business Day as defined
in the Indenture at a place of payment, payment may be made at that place on
the next succeeding day that is a Business Day, and no interest shall accrue
for the intervening period.
In case an Event of Default with respect to the ___% [Notes] [Sinking
Fund Debentures] Due ____, as defined in the Indenture, shall have occurred and
be continuing, the Principal hereof and the interest accrued hereon, if any,
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 which provide that, without prior
notice to any Holders, the Company and the Trustee may amend the Indenture and
the Securities of any series with the written consent of the Holders of a
majority in
4
<PAGE>
principal amount of the outstanding Securities of all series affected by such
amendment (all such series voting as one class), and the Holders of a majority
in principal amount of the outstanding Securities of all series affected
thereby (all such series voting as one class) by written notice to the Trustee
may waive future compliance by the Company with any provision of the Indenture
or the Securities of such series; provided that, without the consent of each
Holder of the Securities of each series affected thereby, an amendment or
waiver, including a waiver of past defaults, may not: (i) extend the stated
maturity of the Principal of, or any sinking fund obligation or any installment
of interest on, such Holder's Security, or reduce the principal amount thereof
or the rate of interest thereon (including any amount in respect of original
issue discount), or any premium payable with respect thereto, or adversely
affect the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of such
Holder, or reduce the amount of the Principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof or the amount thereof provable in bankruptcy, or change any place of
payment where, or the currency in which, any Security of such series or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of outstanding Securities of the
relevant series the consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance with certain provisions of
the Indenture or certain Defaults and their consequences provided for in the
Indenture; (iii) waive a Default in the payment of Principal of or interest on
any Security of such Holder; or (iv) modify any of the provisions of the
Indenture governing supplemental indentures with the consent of Securityholders
except to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable) of the outstanding Securities of all series
affected (voting as a single class), by notice to the Trustee, may waive an
existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of Principal of or
interest on any Security or in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of the Holder
of each outstanding Security affected. Upon any such waiver, such Default shall
cease to exist, and any Event of Default with respect to the Securities of such
series arising therefrom shall be deemed to have been cured, for every purpose
of the Indenture; but no such waiver shall extend to
5
<PAGE>
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
The Indenture provides that a series of Securities may include one or
more tranches (each a "TRANCHE") of Securities, including Securities issued in
a Periodic Offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices, but
all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding any
other provision of the Indenture, subject to certain exceptions, with respect
to sections of the Indenture concerning the execution, authentication and terms
of the Securities, redemption of the Securities, Events of Default of the
Securities, defeasance of the Securities and amendment of the Indenture, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to a board resolution or a supplemental
indenture establishing such series or tranche.
The Company, for itself and its successors, and each Holder, by
accepting the [Notes] [Debentures], agrees that the payment of the principal of
and interest on the [Notes] [Debentures] is subordinated, to the extent and in
the manner provided in the Indenture, to the right of payment in full of all
present and future Senior Indebtedness, and that the subordination provisions
in the Indenture are for the benefit of the holders of Senior Indebtedness.
No reference herein to the Indenture and no provision of this [Note]
[Debenture] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal of and any
premium and interest on this [Note] [Debenture] in the manner, at the place, at
the respective times, at the rate and in the coin or currency herein
prescribed.
The [Notes] [Debentures] are issuable initially only in registered
form without coupons in denominations of [$1,000] or any integral multiple
thereof at the office or agency of the Company in the Borough of Manhattan, The
City of New York, and in the manner and subject to the limitations provided in
the Indenture.
[This [Note] [Debenture] will not be redeemable at the option of the
Company prior to maturity.] [This [Note] [Debenture] is redeemable prior to
maturity ...] [This Debenture is entitled to the benefits of a mandatory
sinking fund as follows ...]
6
<PAGE>
Upon due presentment for registration of transfer of this [Note]
[Debenture] at the office or agency of the Company in the Borough of Manhattan,
The City of New York, a new [Note or Notes] [Debenture or Debentures] of
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange therefor, subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the registered Holder hereof as the absolute owner of this
[Note] [Debenture] (whether or not this [Note] [Debenture] shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the Principal hereof and,
subject to the provisions hereof, interest hereon, 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.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or any indenture supplemental thereto or in any
[Note] [Debenture], or because of any indebtedness evidenced thereby, shall be
had against any incorporator as such, or against any past, present or future
stockholder, officer, director or employee, 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 hereof and as
part of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
The laws of the State of New York (without regard to conflicts of laws
principles thereof) shall govern this [Note] [Debenture].
7
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE]
- ----------------------------------------------------------------------------
the within [Note] [Debenture] and all rights thereunder, hereby
- ----------------------------------------------------------------------------
irrevocably constituting and appointing such person attorney
- ----------------------------------------------------------------------------
to transfer such [Note] [Debenture] on the books of the Issuer, with full
- ----------------------------------------------------------------------------
power of substitution in the premises.
Dated:______________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within [Note]
[Debenture] in every particular without alteration or
enlargement or any change whatsoever.
Signature guarantee: ___________________________________
8
<PAGE>
EXHIBIT 5.1
[LETTERHEAD of Davis Polk & Wardwell]
December 1, 1997
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
We have acted as counsel to Donaldson, Lufkin & Jenrette, Inc. (the
"COMPANY") in connection with the Company's Registration Statement on Form S-3
(the "REGISTRATION STATEMENT") filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, for the
registration of the sale by the Company from time to time of up to $300,000,000
aggregate principal amount of senior debt securities (the "SENIOR DEBT
SECURITIES"), subordinated debt securities (the "SUBORDINATED DEBT SECURITIES")
and preferred stock, par value $0.01 per share (the "PREFERRED STOCK") of the
Company. The Senior Debt Securities, Subordinated Debt Securities and Preferred
Stock are herein collectively referred to as the "SECURITIES." The Senior Debt
Securities are to be issued pursuant to an Indenture (the "SENIOR INDENTURE")
to be entered into between the Company and The Chase Manhattan Bank, as Trustee
(the "TRUSTEE"). The Subordinated Debt Securities are to be issued pursuant to
an Indenture (the "SUBORDINATED INDENTURE" and collectively with the Senior
Indenture, the "INDENTURES") to be entered into between the Company and the
Trustee.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary for the purposes of rendering this opinion.
<PAGE>
Donaldson, Lufkin & Jenrette, Inc. 2 December 1, 1997
On the basis of the foregoing, we are of the opinion that:
1. When the Indentures and any supplemental indenture to be entered
into in connection with the issuance of Senior Debt Securities or Subordinated
Debt Securities have been duly authorized, executed and delivered by the
Company and the Trustee, the specific terms of a particular Senior Debt
Security or Subordinated Debt Security, as the case may be, have been duly
authorized and established in accordance with the applicable Indenture, and
such Senior Debt Security or Subordinated Debt Security, as the case may be,
has been duly authorized, executed, authenticated, issued and delivered in
accordance with the applicable Indenture and the applicable underwriting or
other agreement, such Senior Debt Security or Subordinated Debt Security will
constitute a valid and binding obligation of the Company, enforceable in
accordance with its terms, except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or similar laws now or hereinafter in effect relating to or
affecting the enforcement of creditors' rights generally and (b) the
availability of equitable remedies may be limited by equitable principles of
general applicability (regardless of whether considered in a proceeding at law
or in equity).
2. Upon designation of the relative rights, preferences and
limitations of any series of Preferred Stock by the Board of Directors of the
Company and the proper filing with the Secretary of State of the State of
Delaware of a Certificate of Designation relating to such series of Preferred
Stock, all necessary corporate action on the part of the Company will have been
taken to authorize the issuance and sale of such series of Preferred Stock
proposed to be sold by the Company, and when such shares of Preferred Stock are
issued and delivered in accordance with the applicable underwriting or other
agreement, such shares of Preferred Stock will be validly issued, fully paid
and non-assessable.
In connection with the opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such Security, (i) the Board of
Directors shall have duly established the terms of such Security and duly
authorized the issuance and sale of such Security and such authorization shall
not have been modified or rescinded; (ii) the Registration Statement shall have
been declared effective and such effectiveness shall not have been terminated
or rescinded; and (iii) there shall not have occurred any change in law
affecting the validity or enforceability of such Security. We have also assumed
that none of the terms of any Security to be established subsequent to the date
hereof, nor the issuance and delivery of such Security, nor the compliance by
the Company with the terms of
<PAGE>
Donaldson, Lufkin & Jenrette, Inc. 3 December 1, 1997
such Security will violate any applicable law or will result in a violation of
any provision of any instrument or agreement then binding upon the Company, or
any restriction imposed by any court or governmental body having jurisdiction
over the Company.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In addition, we consent to the reference to us under
the caption "LEGAL MATTERS" in the prospectus.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
/s/ Davis Polk & Wardwell
<PAGE>
Exhibit 12.1
<TABLE>
<CAPTION>
STATEMENT RE COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
FISCAL YEAR ENDED DECEMBER 31,
-------------------------------------------------------- MARCH 31, JUNE 30, SEPTEMBER 30,
1992 1993 1994 1995 1996 1997 1997 1997
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before provision for
income taxes $ 245,000 $302,000 $205,000 $298,500 $473,800 $144,000 $311,000 $499,100
Add: Fixed Changes
Interest expense (gross) 1,130,709 1,465,303 2,116,655 2,699,769 2,885,800 832,048 1,830,971 2,842,043
Interest factor in rents 13,899 15,432 18,565 22,064 25,515 7,421 15,154 23,484
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
Total fixed charges 1,144,608 1,480,735 2,135,220 2,721,833 2,891,315 839,469 1,846,125 2,865,527
Earnings before fixed charges,
and provision for income taxes $1,389,608 $1,782,735 $2,340,220 $3,020,333 $3,365,115 $983,469 $2,157,125 $3,364,627
========== ========== ========== ========== ========== ========= ========== ==========
Ratio of earnings to fixed charges 1.21 1.20 1.10 1.11 1.16 1.17 1.17 1.17
========== ========== ========== ========== ========== ========= ========== ==========
</TABLE>
<PAGE>
Exhibit 12.1
<TABLE>
<CAPTION>
DONALDSON, LUFKIN & JENRETTE, INC.
STATEMENT RE COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
(In thousands, except for ratio)
For the Years Ended
---------------------------------- MARCH 31, JUNE 30, SEPTEMBER 30,
1994 1995 1996 1997 1997 1997
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before provision for
income taxes $205,000 $298,500 $473,800 $144,000 $311,000 $499,100
Add: Fixed Charges
Interest (gross) 2,116,655 2,699,769 2,865,800 832,048 1,830,971 2,842,043
Interest factor in rents 18,565 22,064 25,515 7,421 15,154 23,484
---------- ---------- ---------- ---------- ---------- ----------
Total fixed charges 2,135,220 2,721,833 2,891,315 839,469 1,846,125 2,865,527
Add: Preferred dividends 20,970 19,868 18,653 3,234 6,204 9,174
Combined fixed charges and preferred
dividends 2,156,190 2,741,701 2,909,968 842,703 1,852,329 2,874,701
Earnings before fixed charges, preferred
dividends and provision for income taxes $2,340,220 $3,020,333 $3,365,115 $983,469 $2,157,125 $3,364,627
========== ========== ========== ========== ========== ==========
Pro forma ratio of earnings to fixed charges and
preferred dividends 1.09 1.10 1.18 1.17 1.16 1.17
========== ========== ========== ========== ========== ==========
</TABLE>
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
Donaldson, Lufkin & Jenrette, Inc.:
We consent to the incorporation by reference in the registration statement of
our report dated February 3, 1997 which is included in the December 31, 1996
annual report on Form 10-K of Donaldson, Lufkin & Jenrette, Inc., also
incorporated herein by reference, and to the reference to our firm under the
heading "Experts" in the registration statement.
/s/ KPMG Peat Marwick LLP
New York, New York
December 1, 1997
<PAGE>
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
- ----------------------- -------------------
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
- ---------------------------------------- --------------
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------------------
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 13-1898818
- ------------------------------- ------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
277 PARK AVENUE
NEW YORK, NEW YORK 10172
- --------------------------------------- -----------
(Address of principal executive offices) (Zip Code)
-----------------------------------
DEBT SECURITIES
(Title of the indenture securities)
-----------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to Form T-1 filed in connection with Registration Statement No. 333-06249,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, 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 24th day
of November, 1997.
THE CHASE MANHATTAN BANK
By /s/ Victor Evans
-------------------------
Victor Evans, Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ...............................................$ 11,760
Interest-bearing balances ....................................... 4,343
Securities:
Held to maturity securities........................................... 2,704
Available for sale securities......................................... 37,885
Federal funds sold and securities purchased under
agreements to resell ............................................ 27,358
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,370
Less: Allowance for loan and lease losses 2,760
Less: Allocated transfer risk reserve ......... 13
----------
Loans and leases, net of unearned income,
allowance, and reserve ......................................... 124,597
Trading Assets ...................................................... 64,630
Premises and fixed assets (including capitalized leases)............. 2,925
Other real estate owned ............................................. 286
Investments in unconsolidated subsidiaries and
associated companies............................................ 232
Customers' liability to this bank on acceptances
outstanding .................................................... 2,212
Intangible assets ................................................... 1,480
Other assets ........................................................ 11,117
TOTAL ASSETS ........................................................ $291,529
=========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ............................................. $86,574
Noninterest-bearing ............................................. $31,818
Interest-bearing ................................................ 54,756
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ..................................................... 69,887
Noninterest-bearing ............................................. $ 3,777
Interest-bearing ................................................ 66,110
Federal funds purchased and securities sold under agree-
ments to repurchase ................................................ 45,307
Demand notes issued to the U.S. Treasury ............................. 161
Trading liabilities .................................................. 47,406
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ................... 4,578
With a remaining maturity of more than one year
through three years................................................. 261
With a remaining maturity of more than three years.............. 131
Bank's liability on acceptances executed and outstanding.............. 2,212
Subordinated notes and debentures .................................... 5,715
Other liabilities..................................................... 12,355
TOTAL LIABILITIES .................................................... 274,587
EQUITY CAPITAL
Perpetual preferred stock and related surplus......................... 0
Common stock ......................................................... 1,211
Surplus (exclude all surplus related to preferred stock)............. 10,294
Undivided profits and capital reserves ............................... 5,414
Net unrealized holding gains (losses)
on available-for-sale securities ................................... 7
Cumulative foreign currency translation adjustments .................. 16
TOTAL EQUITY CAPITAL ................................................. 16,942
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ................................. $291,529
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
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 in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
